The Biden administration may eliminate a US Department of Labor rule that would have modified how the US government sets prevailing wages for H-1B professionals and employment-based green card applicants, according to this Forbes article. The Trump administration originally sought to use the wage rule to make it more challenging for foreign-born scientists and engineers to seek employment.
Governments and employers throughout the world are paying more attention to environmental, social and corporate governance (ESG) issues. That’s according to the International Bar Association Global Employment Institute’s (IBA GEI) Eleventh Annual Global Report.
The report is based on data from lawyers in 55 countries and covers a range of topics, including artificial intelligence, mental health, cybersecurity, immigration and compensation. McDermott Partner and IBA GEI co-chair Todd A. Solomon served as an editor, and McDermott Partner Abigail M. Kagan contributed to the report.
The New York State Legislature recently passed a bill that will prohibit employers from entering covenants not to compete with their employees and contractors. The bill specifically exempts nondisclosure and client nonsolicitation agreements, but it is silent on employee nonsolicitation agreements and sale of business restrictions.
Effective July 1, 2023, Minnesota will no longer allow covenants not to compete, with limited exceptions for the sale or dissolution of a business. The law is not retroactive, nor does it apply to nondisclosure agreements or client/customer nonsolicitation restrictions.
As summer approaches and the clocks are set forward, April marks an increase in the National Minimum Wage, compensation for unfair dismissal and other payments required by UK employment laws.
The Paid Leave for All Workers Act (PLAWA) was signed into law by Governor J.B. Pritzker on March 13, 2023, ensuring that all workers in Illinois receive 40 hours of paid time off annually for any purpose. The law will become effective on January 1, 2024, requiring employers to utilize the remaining months of 2023 to ensure they are equipped to comply with the new legislation.
Illinois has joined Maine and Nevada as the third state to implement such a measure.
A federal judge recently ruled in favor of a Department of Homeland Security regulation that permits the spouses of H-1B visa holders to work. According to this Forbes article, McDermott Partner Paul Hughes drafted the amicus brief for more than 40 companies and organizations.
“This decision confirms that tens of thousands of H-4 employees—highly skilled and critical members of their teams—are lawfully employed,” said Hughes. “The court’s correct analysis follows decades of consistent practice and recognition that the Executive may determine categories of visa holders eligible for employment.”
The US Court of Appeals for the Sixth Circuit recently upheld a district court’s grant of a preliminary injunction restricting a former employee from working for conflicting organizations or communicating with a competitor’s counsel. Stryker Emp. Co., LLC v. Abbas, Case No. 22-1563 (6th Cir. Feb. 16, 2023) (Clay, Bush, JJ.; Sutton, C.J.) The Court found that the preliminary injunction was an appropriate measure to protect the plaintiff’s confidential information that was consistent with the employee’s noncompete agreement.
DOJ Announces Major Changes to Corporate Compliance Program Evaluation Criteria, Including Compensation and Personal Messaging Applications
During speeches on March 2 and 3, 2023, at the American Bar Association National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco, Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. and other US government officials announced significant changes to the US Department of Justice’s Evaluation of Corporate Compliance Programs and continued to emphasize the importance of effective and robust compliance policies. These changes come on the heels of DOJ’s recent announcement of a single corporate voluntary self-disclosure policy for every US Attorneys’ Office nationwide, and are simply the latest evidence of the Biden Justice Department’s substantial focus on corporate criminal enforcement.
A Win for Employers: Ninth Circuit Holds That California AB 51 Prohibiting Mandatory Arbitration Is Pre-empted by the Federal Arbitration Act
On February 15, 2023, employers in California regained the ability to enforce mandatory arbitration as the US Court of Appeals for the Ninth Circuit ruled that Assembly Bill 51 (AB 51), which prohibited “forced arbitration” as a condition of employment, was pre-empted by the Federal Arbitration Act (FAA).
After years of litigation, the Ninth Circuit’s ruling upholds a federal district court’s preliminary injunction that temporarily blocked California from enforcing AB 51 and all but guarantees that AB 51 will never be enforceable. While California could seek review from the Ninth Circuit (en banc) or the Supreme Court of the United States, given the Supreme Court’s line of cases upholding FAA pre-emption, we think this decision will stand.
That said, US President Joe Biden’s Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (HR 4445) must not be ignored. Employers may include sexual harassment and sexual assault claims in a voluntary arbitration agreement, but an employee may choose to file these particular claims in court.