A bipartisan group of U.S. Senators has reintroduced a bill, dubbed the “Workforce Mobility Act of 2023,” that would largely ban the use of employer non-compete agreements nationwide as a matter of federal law. This follows on the heels of the proposed rule by the Federal Trade Commission (FTC) that would make most employment non-compete agreements, as well as “de facto” non-competes, an unfair or deceptive trade practice under federal law.

The Occupational Safety and Health Administration (OSHA) has announced two enforcement guidance changes with the goal of deterring violations by substantially increasing the penalties certain employers may face for alleged violations.

The Federal Trade Commission (FTC) proposed a new rule that, if made final, would (at least on its face) effectively prohibit non-compete agreements other than in very limited circumstances.

This special report follows up on our initial alert.

1. The National Labor Relations Board expanded its authority to include awarding consequential damages in unfair labor practice cases. Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022). Monetary remedies for violations of the National Labor Relations Act have generally been limited to “make whole” relief, specifically restoring an employee’s actual lost wages caused by an employer’s or union’s unfair labor practices (ULP).

1. President Joe Biden signed legislation imposing a collective bargaining agreement between freight carriers and railroad unions, avoiding a nationwide strike. Congress passed the bill utilizing its authority under the Railway Labor Act, preventing what could have been a massive hit to the country’s supply chain after several railroad unions failed to ratify the tentative agreement. The contract contains wage increases of roughly 24 percent over four to five years and an additional day of paid leave. Other terms will vary across the dozen national rail unions.

The constitutionality of Pennsylvania’s “registration statute,” which requires corporations that register to do business in Pennsylvania consent to the “general personal jurisdiction” of Pennsylvania, was the subject of oral argument in the U.S. Supreme Court on November 8, 2022.

1. The National Labor Relations Board modified its test for determining if COVID-19-related conditions warrant mail ballot union elections, potentially signaling a return to mostly in-person votes. Starbucks Corp., 371 NLRB No. 154 (Sept. 29, 2022).

In our latest issue of the Class Action Trends Report, Jackson Lewis attorneys look at the current state of COVID-19-related litigation at this late stage of the global pandemic.

The U.S. Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM), seeking to revise the standard for determining whether a worker is an employee or “independent contractor” under the Fair Labor Standards Act (FLSA).