Welcome to our first SuperVision e-newsletter of 2024. Although we are only four months into 2024, it has already been an incredibly active year on the labor and employment front. On Wednesday, the Federal Trade Commission issued a ban on non-competes. Just 24 hours later, multiple lawsuits challenging the FTC rule have been filed. As this is a rapidly changing area of the law, employers are encouraged to reach out to us for guidance on the continued use of non-competes and other restrictive covenants in your employment agreements.

In addition to an update on where things stand with the FTC rule banning non-competes, this edition of SuperVision addresses a number of other hot topics, including:

1. The Department of Labor’s announcement that it is yet again raising the salary requirements for overtime exemptions
2. An overview and analysis of the EEOC’s final rule implementing the Pregnant Workers’ Fairness Act
3. Review of the United States Supreme Court’s decision in Muldrow v. St. Louis and its impact on adverse actions in employment discrimination claims
4. Recommendations for employers regarding clear and professional communications by managers, particularly in a world where texting, slack, and emails are the common, if not predominant, forms of workplace communication
5. Analysis of OSHA’s new walk around rule for workplace inspections
6. A description and review of the Department of Labor’s newly announced test for determining whether a worker should be classified as an independent contractor or an employee

With so many developments, we are also incredibly pleased to announce the return of the in-person SuperVision Labor & Employment Symposium, an all-day, free legal seminar being held in Charleston, West Virginia on June 21, 2024. The Symposium will focus on “The Future of Work: Legal Strategies for Employers in a Dynamic Landscape.” This program will dive into many hot topics of interest to business owners, HR professionals, and anyone who manages employees, including remote work; workplace investigations; AI, emerging technologies, and privacy; union avoidance; workplace violence; and more. We hope you can join us! Click here to learn more and register.

Other Upcoming Events

In addition to Spilman’s SuperVision Labor & Employment Symposium scheduled for June 21, we are also pleased to be a Silver Sponsor of the West Virginia Workers’ Compensation Association's Conference being held June 12-13 in Charleston, West Virginia. Spilman attorney Dill Battle is a host of the conference where topics to be covered include a live IME demonstration, the nuts and bolts of a new claim, strategies for safe and effective return to work, regulatory update, and claim handling strategies for preexisting conditions given recent court decisions. Click here to learn more and register.

As always, if you have any suggested topics you would like us to address here or in a webinar format, please let us know.



Thank you for reading.

Eric W. Iskra, Chair, Labor & Employment Practice Group

Carrie H. Grundmann, Executive Editor, SuperVision

By Eric E. Kinder

On April 23, the Federal Trade Commission (FTC) approved on a split vote a proposed rule that bans virtually all employment noncompetition agreements nationwide. The rule was first proposed in 2023 and is scheduled to go into effect 120 days after it is formally published, which, for now, would be approximately late August 2024. Currently, there are four states that have banned noncompetition agreements in total (California, Minnesota, Oklahoma, and North Dakota) and a number of other states that have significantly restricted their use.



The final FTC rule bans as an unfair method of competition “any term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from” either seeking or accepting later work in the United States with a different person; or operating a business in the United States after the conclusion of their employment. Only noncompetes that are tied to the sale of a business are exempt from this rule and still permitted going forward. 

Click here to read the entire article.

By Eric E. Kinder

The U.S. Department of Labor (DOL) announced April 23, 2024 it will increase the minimum annual salary that is required to make certain white-collar employees to be eligible for overtime (often referred to as the executive, administrative, and professional exemptions from the Fair Labor Standard Act’s overtime requirements). Starting July 1, the threshold will increase from $35,568 per year ($684 per week) to $43,888 (or $844 weekly), and it will increase again with the new year, to $58,656 (or $1,128 per week).

Click here to read the entire article.

By Carrie H. Grundmann

On April 15, 2024, the EEOC published its Final Rule to implement the Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022. The Rule goes into effect on June 18, 2024, and will govern all employers with 15 or more employees. 

Click here to read the entire article.

By Kelsie A. Wiltse

On April 17, 2024, the United States Supreme Court issued its unanimous decision in Muldrow v. St. Louis, 601 U.S. _____ (2024), which addressed the appropriate standard for evaluating whether a job transfer – even where the employee’s pay and job level do not change – can serve as the basis for a claim of workplace discrimination. 

Click here to read the entire article.

By Sarah E. Kowalkowski

People in the workplace communicate more often and via more methods than ever before. Quite often, many of these methods of communication—emails, text messages, and instant messages on platforms like Slack or social media—are less formal than communication methods of the past. While these methods may encourage a less formal style of communication, any form of written communication can become evidence in litigation. For this reason, employers and managers must be mindful, now more than ever, of how they communicate with (and about) employees.

The more we communicate in writing, the more opportunities there are for mistakes and unclear messaging, particularly in less formal communication methods, such as text messages. Courts and arbitrators consider all types of written communication—including the use of emojis—when assessing employer liability in discrimination and harassment lawsuits. For example, in a 2022 sexual harassment case, a federal district court analyzed whether any emojis exchanged in instant messages “could be considered sexual in nature.”

Click here to read the entire article.

By Mark E. Heath

On March 29, 2024, the Department of Labor (DOL) published its final rule allowing employees to authorize a representative to accompany an OSHA compliance officer during inspections of their workplace. The rule will be effective May 31, 2024, and is published in the CFR.

Click here to read the entire article.

By Eric E. Kinder

It has been said that if you wait long enough, everything comes back into fashion. This saying is true even for the U.S. Department of Labor (DOL), where on March 11, 2024, the DOL reverted back to the multifactor, totality-of-the-circumstances, economic reality test that had been used for decades to determine when a worker should be classified as an employee or an independent contractor.

Click here for the entire article.