Welcome to our first issue of SuperVision in 2025. In this edition, we cover the new presidential administration’s anticipated impact on employment agreements, the National Labor Relations Board, and workplace safety enforcement through OSHA and MSHA. We also bring you information on pay transparency, thoughts on employee discipline and the need for well-trained managers in light of recent legal precedent, and guidance on responding to increased enforcement of immigration and undocumented workers at the federal level.

Spilman Attorneys Recognized by JD Supra

We are also pleased to announce that earlier today, JD Supra published its 2025 Readers' Choice Awards, which recognizes top authors and articles in various legal practice areas from 2024. Spilman is pleased to recognize Stephanie Eaton (Construction), Erin Jones Adams (Education), and Carrie H. Grundmann (Energy) as Top 5 Authors in the respective practice areas in 2024. We are equally pleased to announce that Mitchell J. Rhein wrote one of the top four most read Labor and Employment articles in all of 2024, entitled, “The FTC’s Rule Banning Noncompetes is Dead. Long Live Noncompetes?” Mitch brings us the latest on non-competes in this edition of SuperVision. 

As always, thank you for reading. 

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

Carrie H. Grundmann, Executive Editor, SuperVision

By Mitchell J. Rhein

One of the biggest hot topics during the Biden administration was the legality and enforceability of non-compete agreements in employment. The Biden administration aggressively tried to eliminate employer-imposed restraints on employee mobility on multiple fronts. For example, the Federal Trade Commission (FTC) proposed to invalidate or restrict the use of noncompetition and nonpoaching agreements. Indeed, just days before President Trump was inaugurated, the FTC and Department of Justice updated the 2016 Antitrust Guidance for Human Resources Professionals to explain that non-compete, nondisclosure agreements, training repayment, and non-solicitation agreements may violate antitrust laws. The guidance also repeated the FTC’s and DOJ’s opinion that agreements between employers not to hire, solicit, or otherwise compete for workers (i.e., no-poach agreements) may result in criminal or civil liability.

Likewise, the National Labor Relations Board (NLRB) and its General Counsel launched their own attacks on non-competes (see Memorandums GC-23-08, GC-25-01, and J.O. Mory, Inc., a decision by NLRB Region 25 finding non-compete and non-solicitation provisions in an employment agreement violate the National Labor Relations Act).

With the change in administration, what does the future look like for non-compete agreements and other restrictive covenants?

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By Peter R. Rich

The installation of a new administration with a fundamentally different philosophical identity once again foreshadows fundamental changes in the relationship between private sector employees and employers governed by the National Labor Relations Act. Official acts taken since January 20 confirm that the changes will be at least as significant as those imposed under the Biden administration.

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By Mark E. Heath

In mid-February, Trump nominated Wayne Palmer to lead the Mine Safety and Health Administration (MSHA) and David Keeling to lead the Occupational Safety and Health Administration (OSHA). While these nominees have been submitted to the Senate, no committee hearings have been held. In this article, we explore what, if any, changes we expect to see under the new administration that will impact employers on the MSHA and OSHA fronts.

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By Eric E. Kinder

One trend we see continuing in 2025 is state and local laws requiring employers to be more transparent in how they pay their employees. These requirements come in two varieties. First, more states and cities are requiring private sector employers to disclose the actual pay range for a job to both applicants and employees. This can mean either stating the pay range as part of the application or recruitment process, allowing employees to inquire about that range after hiring, or both. Pay ranges, sometimes called pay scales, are to set forth the reasonable maximum pay that a job would entail, either as a salary or hourly wage, and the minimum the employer would pay. In addition, some jurisdictions, such as Maryland, require a general description of the benefits and any other compensation that is available for the position be stated in the advertisement or recruiting materials. As of the date of this publication, there are 14 states that have implemented a statewide pay transparency law; those states range from the Pacific Northwest (Washington) to the East Coast (Maryland and New York) and include a few cities in between (Cincinnati and Toledo).

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By Carrie H. Grundmann

A pair of cases from the United States Supreme Court and the Second Circuit (covering Connecticut, New York, and Vermont) in 2024 highlight the importance of documentation and well-trained managers when issuing employee discipline. 

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By Mitchell J. Rhein

The first month of the Trump administration has confirmed that employers can expect increased enforcement of immigration compliance. Immigration & Customs Enforcement (ICE), Department of Homeland Security (DHS), and Homeland Security Investigations (HSI) will conduct more I-9 audits and other worksite enforcement operations (i.e., “raids”). President Trump's border czar, Tom Homan, told 60 Minutes before the election that the Trump administration would target employers that rely on workers without legal status. During President Trump's first term as President, ICE increased I-9 audits. To prepare for the likely increase in worksite enforcement operations, employers should develop proactive plans to mitigate the risks of an audit or raid, which include civil money penalties, debarment of federal contractors, seizure of employer resources, and criminal charges.

Click here to read the entire article.