Welcome to the fall issue of SuperVision, our labor and employment e-newsletter. In this edition, we cover the current status of the FTC’s attempts to ban noncompetes, OSHA’s proposed heat standard, how to handle political conversations at work, an employer’s obligation to address off-duty conduct, a recent Fourth Circuit decision interpreting wrongful discharge in violation of North Carolina public policy, and provide a review of recent workers’ compensation decisions from the West Virginia Supreme Court. We hope you find these topics engaging and informative. If you have questions about any of these or have suggestions for future topics, please let us know.

Upcoming Events

We have a number of exciting events featuring Spilman attorneys coming up in the next several weeks. We invite you join us!

SuperVision - Winston-Salem, October 4, 2024

On October 4, 2024, our SuperVision Symposium, a full-day, free legal seminar for business owners, HR professionals, and anyone who manages employees, is returning to Winston-Salem, North Carolina. Presentations will dive into remote work; workplace investigations; unfair competition; union avoidance; workplace violence; and more. Click here to learn more and register.

DRI Annual Meeting - Seattle, WA, October 16-18

We are sponsoring and attending the DRI Annual Meeting October 16-18 in Seattle, WA. This is a perfect event to connect with the DRI community and beyond at the flagship event of the year for civil defense practitioners, where relationships build business. Click here to learn more.

ABA Annual Labor and Employment Conference - New York, NY, November 13-16

We are also looking forward to hearing from our Spilman colleagues as they present at the ABA Annual Labor and Employment Conference in New York City November 13-16. This conference is the Section’s signature event of the year, which will offer cutting-edge and in-depth programs covering developments across the full range of labor and employment law topics along with numerous networking opportunities. Spilman is pleased to be a sponsor of the Section and this exciting program! Click here to learn more.

Announcements

Best Lawyers Recognition

We are very pleased to announce that 66 of the firm's attorneys were selected by their peers for inclusion on the 2025 Best Lawyers list, five were selected as Best Lawyers "Lawyers of the Year," and 19 others were selected as Best Lawyers "Ones to Watch." Recognition by Best Lawyers is based entirely on peer review. Its methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Click here to learn more. 

Reaffirming Mansfield Certification

We are currently in the process of reaffirming our commitment to Mansfield Certification for 2024-2025, signaling our continued commitment to boosting inclusivity, access, and diversity at Spilman. Since joining Mansfield in 2023, we have made strides in increasing the transparency and accessibility of our advancement processes, ensuring all talent at the firm has equitable opportunities for leadership roles and activities. Click here to learn more.

As always, thank you for reading. 

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

Carrie H. Grundmann, Executive Editor, SuperVision

By Mitchell J. Rhein

Earlier this year, the Federal Trade Commission (FTC) announced a Final Rule outlawing nearly all noncompete agreements between employers and employees. That Final Rule, however, was overturned at the end of August 2024. After granting a limited injunction in July 2024, a Texas court invalidated the FTC’s Final Rule days before it was set to take effect on September 4, 2024.

The court ruled that the FTC has no authority to issue broad rules like the Final Rule banning noncompete agreements or invalidating millions of contracts retroactively. Instead, the court said the FTC could only deem noncompete agreements unfair methods of competition through case-by-case adjudication. The court also concluded the Final Rule was unenforceable because the FTC lacked sufficient evidence to support a categorical ban on non-compete agreements and failed to consider less restrictive alternatives.

So, what’s next?

Click here to read the entire article.

By Mark E. Heath

The OSHA process for issuing a new heat regulation is finally heating up. On August 30, 2024, OSHA published its Notice of Proposed Rule Making (NPRM) in the Federal Register. The path to get to this NPRM has been a long one. Indeed, OSHA published an Advance Notice of Proposed Rulemaking nearly three years ago in October 2021.

In publishing the NPRM, OSHA noted that heat is a leading cause of weather-related deaths in the United States (not just in the workforce). Moreover, as it gets hotter in the United States, heat is – and will remain – a growing issue in the workforce, and employers are already having to deal with how to minimize the effects of heat on employees.

While the rulemaking process is ongoing, OSHA has previously announced that it is using the General Duty Clause, also known as Section 5 of the OSH Act, to enforce heat protection for workers now and require employers to take steps to prevent employee exposure to serious heat events. The Heat National Emphasis Program will remain in effect until April 2025. Essentially, OSHA is using its powers under the General Duty Clause to bridge the time between considering and finalizing a heat standard rule. 

Click here to read the entire article.

By Nicholas A. Muto

Conversations and “water cooler talk” among colleagues have long been integral to workplace culture. In modern times, the “water cooler” has expanded beyond the physical workplace to include online work platforms (Slack, Teams, etc.) and social media (Instagram, Facebook, etc.). When we talk about the parameters for acceptable political conversation in (or impacting) the workplace, employers need to recognize that the scope – and mediums – for having these conversations have greatly expanded beyond the physical office water cooler.

While employees frequently discuss a wide range of topics with one another, politics tends to be more divisive than the others, particularly in the current political climate. With this year being an election year, political conversations in workplaces are likely to increase. At the time of writing, the election is nearly one month away, which means politics will be at the forefront of many people’s minds. This raises an important question: should political conversations have a place in the workplace, and if so, how can they be managed to maintain a positive and inclusive workplace culture?

Click here to read the entire article.

By Sarah E. Kowalkowski

Once an employer knows or has reason to know about alleged harassment, it has an obligation to promptly remedy the hostile work environment, even if the offensive conduct occurred wholly offsite, online, or off-duty. This concept was recently confirmed by a decision from the United States Court of Appeals for the Ninth Circuit, which held that courts must consider the totality of the circumstances—which can include personal social media posts—in assessing whether a work environment is hostile. The Court explicitly rejected the idea that only conduct that occurs inside the physical workplace can be actionable under federal discrimination laws. The critical questions under Title VII are “whether the harassing conduct had an unreasonable effect on the working environment” and whether and how the employer responded to that effect. Liability under Title VII may also trigger if an employer’s response is neither reasonably prompt nor effective. 

Conduct that takes place outside of the physical work environment, including on social media, can contribute to a hostile work environment.

Click here to read the entire article.

By Kelsie A. Wiltse

On August 14, 2024, the Fourth Circuit Court of Appeals issued an opinion reversing a prior decision of the U.S. District Court for the Western District of North Carolina regarding wrongful discharge under North Carolina law. The Fourth Circuit held that former employees of a mental health counseling and substance use disorder treatment facility plausibly alleged a cause of action for wrongful termination in violation of an express public policy of the State of North Carolina.



While this was a federal case, the matter involved the interpretation of North Carolina law. In North Carolina, employment is generally presumed to be “at-will”; however, termination in violation of express public policy is one exception to this presumption. In order for a plaintiff’s wrongful discharge in violation of public policy to be successful, plaintiff must allege a specific North Carolina public policy that was violated and provide facts that plausibly show the violation. 

Click here to read the entire article.

By H. Dill Battle III

Over the last approximately 12 months, the West Virginia Supreme Court of Appeals has issued numerous decisions impacting workers’ compensation claims, addressing (1) apportionment calculations of preexisting awards and conditions in workers’ compensation claims; (2) compensability for injuries occurring at work but not related to work; (3) permanent partial disability post-lung transplant; and (4) the scope of collateral estoppel. 

Click here to read the entire article.