On March 3, President Joe Biden signed into law one of the most significant modifications ever made to federal arbitration law. Known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act), the new law essentially restricts employers from forcing workplace sexual harassment or assault claims to be resolved
President Biden
Federal contractor vaccine mandate temporarily halted nationwide
On December 7, 2021, a federal court in Georgia issued a nationwide injunction prohibiting the federal government from enforcing Executive Order 14042 – the vaccine mandate for federal contractors and subcontractors. The federal contractor mandate applies to roughly one-quarter of the U.S. workforce and affects companies that do business with the federal government.
The States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, various state agencies and certain other employers brought the action alleging that President Biden’s Executive Order exceeded his authority and requesting a preliminary injunction.
Judge R. Stan Baker agreed, stating that he was “unconvinced” that the Federal Property and Administrative Services Act authorized President Biden to direct the type of broad and unprecedented administrative actions contained in Executive Order 14042, adding that such action likely requires Congressional authorization. The court found that the plaintiffs had a likelihood of proving that Executive Order 14042 went beyond mere administration and management of procurement and contracting, and did not fall within the authority actually granted to the President by Congress. Instead, the Court reasoned, Executive Order 14042 works as a “regulation of public health. Judge Baker also rejected the government’s argument that enjoining Executive Order 14042 would permit the continued spread of COVID-19, finding that it would merely maintain the status quo.
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Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date
By Emily Harbison, Amanda Brown & Jessyka Linton on
On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.
As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.
Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline. Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date
ADA likely to protect COVID long-haulers, Biden says
On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).
While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme…
What’s all this talk about federal regulation of non-compete agreements?
On July 9, 2021, the Biden Administration issued a sweeping Executive Order called Promoting Competition in the American Economy (Order). Although it does not immediately change the current legal landscape governing non-compete agreements (or any other aspects of U.S. antitrust enforcement), the Order encourages the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility”. In the wake of the Order and other calls for more rigorous enforcement of employee non-compete and similar restrictive covenants, many within the business community wonder if a federal crackdown on non-compete agreements is coming. We address this issue below, and discuss steps employers may want to consider in light of the potential changes ahead.
Brief summary
According to the Fact Sheet accompanying the Order, roughly half of private-sector businesses require at least some employees to sign post-employment non-compete agreements, affecting an estimated 36 to 60 million workers. On multiple occasions over the past decade-plus, there have been calls for federal agencies to investigate and curtail the use of such agreements. President Biden’s Order is the most recent, and potentially significant, development in this area. He had vowed during his campaign to “eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” The Order is a further step towards fulfilling his campaign promise.
According to the White House, the Order “includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy.” One provision in the Order takes direct aim at non-competes:
. . . the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.
The language in the Order is not as strident as the wording in the Fact Sheet (which encourages the FTC to “ban or limit” non-compete agreements). But it certainly is expansive, targeting any “other clauses or agreements that may unfairly limit worker mobility.” We do not know if the FTC will follow the President’s lead and issue regulations addressing non-compete and similar agreements. But, at a minimum, we anticipate that employee non-compete, non-solicitation, no-rehire, and similar restrictive covenants will receive closer scrutiny by the Biden Administration, and that stricter enforcement of such agreements is very possible.
Continue Reading What’s all this talk about federal regulation of non-compete agreements?
Department of Labor withdraws pro-business independent contractor final rule
By Mark S. Goldstein, Mark Phillips & Saranne Weimer on
As we previously reported here and here, in January 2021 the U.S. Department of Labor (DOL) proposed a business-friendly final rule concerning the classification of workers as independent contractors under the Fair Labor Standards Act (FLSA). The final rule, which was scheduled to take effect in March 2021 (but never did), reaffirmed the use of the so-called “economic reality test” to distinguish between independent contractors and employees under the federal wage/hour law. In essence, the rule was intended to provide a more uniform approach to worker classification.
Shortly after taking office, however, President Biden postponed the effective date of the final rule and suggested it should be repealed. The Biden administration has now followed through on that plan, with the DOL blocking the rule entirely earlier today. In a press release announcing the rule’s withdrawal, the DOL stated: “Upon further review and consideration of the rule and having considered the public comments, the [DOL] does not believe that the Independent Contractor Rule is fully aligned with the FLSA’s text or purpose, or with decades of case law describing and applying the multifactor economic realities test.”Continue Reading Department of Labor withdraws pro-business independent contractor final rule
COBRA changes under the American Rescue Plan Act of 2021
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA). Among the most significant changes for employers are the provisions related to COBRA. The ARPA provides assistance-eligible individuals (AEI) with the opportunity for a 100 percent subsidy for COBRA premiums between April 1, 2021 and September 30, 2021 (the Subsidy Period).
AEI include all COBRA qualified beneficiaries who are eligible for COBRA continuation coverage due to an involuntarily termination (or a reduction of hours) during the Subsidy Period and individuals who would have been AEI, but previously dropped or declined such coverage (i.e., their maximum COBRA coverage period would have extended beyond April 1, 2021). This is true regardless of whether their termination was related to the pandemic. In other words, any individual who qualified for COBRA because of an involuntary termination or reduction in hours with a coverage period that would have extended beyond April 1, 2021, is now eligible to elect coverage and take advantage of the subsidy. Employers (or their plan administrators) must provide updated COBRA notices to AEI. The Department of Labor is required to issue a model notice within the next thirty days. AEI will have sixty days from receipt of the notice to elect COBRA coverage, which will be retroactive to April 1, 2021.
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EEOC proposes new rules on permissible incentives for employer-sponsored wellness programs
On January 7, 2021, the EEOC proposed two rules, under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), designed to clarify what incentives employers may offer employees and their family members for joining employer-sponsored wellness programs. In the 2017 case AARP v. EEOC, the then-existing regulations on employer-sponsored wellness programs were revoked. Since then, employers have lacked guidance on how to structure wellness programs without violating the requirements of both the ADA and GINA that individuals’ disclosures of health information be voluntary. The EEOC’s new rules seek to balance the competing interests. However, given the Biden Administration’s recently issued freeze on proposed rules that have not yet been enacted, employers should not act on the EEOC’s proposed rules yet.
Legal framework
Under the ADA, employers cannot require employees to disclose medical information that might enable employers to discriminate against them. Similarly, under GINA, the disclosure of the health information of a family member of an employee must also be voluntary. In 2016, the EEOC finalized rules that outlined how employers could incentivize employees and their family members to participate in wellness programs that required the disclosure of health information without violating the ADA or GINA. Under the 2016 rules, an employer could offer an incentive of up to 30 percent of the total cost of self-coverage without the wellness program running afoul of the ADA and GINA. However, in AARP v. EEOC, the United States District Court for the District of Columbia held that the EEOC had failed to provide a reasoned explanation for its 30 percent incentive limit, and as a result, the EEOC removed the incentive sections from the ADA and GINA regulations.Continue Reading EEOC proposes new rules on permissible incentives for employer-sponsored wellness programs