Jasper Hoffstedde and Eric van Dam of Littler’s Amsterdam office discuss non-compete clauses in Dutch employment agreements. A non-compete clause may be agreed upon in writing in indefinite-term employment agreements with a person of age (18+). For fixed-term employment agreements, additional conditions apply. Such conditions are strict, which more often than not lead to invalidity or voidability of the clause.

Jasper Hoffstedde and Fleur van Lieshout of Littler’s Amsterdam office discuss the termination clause in Dutch employment agreements. The termination clause seems an easy and straightforward clause; you simply invoke the clause and terminate employment, right? For the employee that is indeed in the case, but the employer has another hoop to jump through if the employee doesn’t want to agree to termination. He then has the obligation to substantiate the reason for termination, the so-called valid ground.

On September 10, 2024, the Puerto Rico Secretary of Labor issued an Opinion (No. 2024-02) to clarify and provide additional information about the application of Act No. 27-2024, known as the "Act to Facilitate the Implementation of Remote Work in the Private Sector and to Incentivize the Establishment of Airline Bases in Puerto Rico.” Act No. 27-2024 exempts from certain employment law coverage domiciled and non-domiciled employees working remotely from Puerto Rico for out-of-state employers with no business nexus to Puerto Rico, and certain unionized airline employees.  

On September 18, 2024, at the request of the State of Michigan and its attorney general, the Michigan Supreme Court clarified issues relating to future minimum wage rates and minimum cash wage rates for tip-credit employees stemming from an earlier opinion.

Ole Kristian Olsby and Nina Elisabeth Thjømøe clarify how to actively prevent sexual harassment and unwanted attention in the workplace through a recent Supreme Court ruling.

International Law Office (ILO)

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An effective way to increase diversity hiring is to require diverse candidate slates for interviewing. Such slates include at least two diverse or women candidates in the pool of finalists. Employers should take heed, however, because there are limits to which a recruiter or a staffing agency can go in building such a slate. Alyesha Dotson discusses the avenues to intentionally recruit for diversity in a fair and smart manner to avoid violating antidiscrimination laws.
  

Section 162(m) of the Internal Revenue Code (the "Code") generally limits the deductibility of compensation paid by a publicly traded corporation to its top executive officers (the "covered employees") to $1 million annually (the "Million Dollar Cap"). However, this limit will not apply to certain amounts that qualify as "performance-based compensation." Compensation attributable to stock options, stock appreciation rights ("SARs") and restricted stock grants may qualify as performance-based compensation if they meet certain requirements.

In a reassuring decision for employers, the UK High Court has confirmed that an employer’s use of a contractual provision to claw back an employee’s bonus was lawful. The ruling in Steel v Spencer Road LLP provides helpful guidance on the circumstances in which a bonus clawback will not constitute a restraint of trade, though employers should be mindful that not all such provisions will be enforceable.

Johane Severin discusses the growing practice of “stay-or-pay” contracts, which some argue force workers to pay if they resign ahead of a stipulated date.

International Employment Lawyer

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Jeff Nowak and Rich Falcone talk through a hypothetical HR dilemma involving a workplace complaint.

SHRM Online

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A recent District of Columbia federal court ruling reminds employers that a severance agreement containing a release of claims under the False Claims Act does not guarantee dismissal of a suit on those grounds.

Background on the FCA

Ben Sandahl discusses a Minnesota case that raises several issues for companies working with independent contractors.

Westlaw Today

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The Connecticut Supreme Court recently adopted the U.S. Supreme Court's relatively narrow definition of “supervisor” for use in determining when employers are liable under the Connecticut Fair Employment Practices Act (CFEPA) for creating or failing to remedy a hostile work environment. The decision provides employers with clarity as the term is not defined by the CFEPA.

In July, the Third Circuit upheld a District of New Jersey decision to throw out a withdrawal liability assessment, finding the multiemployer pension fund was barred from pursuing its claim because the fund unreasonably delayed notification of a withdrawal liability assessment for 12 years.

Withdrawal Liability Assessments Under ERISA

Shawn Matthew Clark discusses the basics of noncompetes and what employers need to consider regarding noncompetes, as well as why the FTC wants to ban them and how recent SCOTUS decisions may affect the FTC’s rule.

New York County Lawyers Association

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On August 22, 2024, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Synoracki v. Alaska Airlines, Inc., reviving a class action under the Uniformed Services Employment and Reemployment Rights Act (USERRA).¹ The case was brought by pilots who served in the Air Force Reserves who were seeking from their civilian employer sick leave and vacation accruals during periods of military leave.

Verónica M. Torres-Torres explains new guidance on exemptions for remote workers and airline staff in Puerto Rico.

News is My Business

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Jeanine Conley Daves and Alexa Laborda Nelson explain how employers can take steps to ensure they are in compliance with the recent COVID-19 relief plans and avoid potential whistleblower litigation.

Chief Executive

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Michael Royal and Alyssa Peterson discuss two new laws that will bring changes for employers in Texas by expanding protections for employees who assert claims of sexual harassment under the Texas Labor Code.

SHRM Online

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Natasha Adom weighs in on racism experienced by former cricket player Azeem Rafiq.

Personnel Today

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On June 1, 2023, in United States ex rel.

On June 29, 2024, Governor Newsom signed into law an amendment to California Code 1770, clarifying the scope of SB 478. Under SB 478 and previously published guidance from the attorney general, California restaurants were effectively prohibited from charging service fees or other surcharges, which many restaurants have implemented to offset rising costs, unless the amount of the service fee was specifically identified as part of the listed prices.

Marshall v. Mercantile Exchange Corporation, 2024 CanLII 71128  (ONSC), is an action for wrongful dismissal where the employee claimed he could not mitigate his damages by seeking alternative employment indefinitely because of a mental health condition (i.e., stress and depression) allegedly arising out of his termination. He claimed a 26-month notice period. The employer sought an independent medical examination (IME) of the employee pursuant to s.

A corporate whistleblower can create more financial, organizational, and reputational damage to an employer by using the federal False Claims Act (FCA), 31 U.S.C. § 3729-33, than by using any other “whistleblower” law. While the FCA contains no requirement that the whistleblower be an employee to create the damage, most FCA whistleblowers are employees, and almost all of them bring the problem to their management or human resources department before they suffer an adverse employment action. Management often does not hear the whistle blowing when the damage is still avoidable.

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records.¹  Generally, an employer cannot make decisions on the basis of an arrest or conviction record unless the crimes “substantially relate” to the circumstances of the job at issue.²  For many years, the state agencies responsible for enforcing this law—the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC)—have taken the view that crimes of domestic violen

The Fair Credit Reporting Act (FCRA) is a federal law that governs employment-related background checks.  Most lawsuits asserting federal claims proceed in federal court.¹  The FCRA is atypical in that FCRA claims can proceed in either federal or state court.  A new opinion from a California court of appeal in Hebert v.

On December 14, 2022, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) signed and published a Memorandum of Understanding for Employment Tax Referrals (the “MOU”). The MOU establishes a system for referrals from the DOL’s Wage & Hour Division (WHD) to the Small Business/Self Employed Specialty Employment Tax unit (“SB/SE”).

In an opinion issued on June 20, 2023, the United States Court of Federal Claims reminded taxpayers that they must obtain a certificate of coverage in order to claim an exemption from Social Security and Medicare taxes (FICA) under a totalization agreement.

Over the years, attempts to arbitrate breach of fiduciary duty claims under the Employee Retirement Income Security Act (ERISA) Section 502(a)(2) have had varying results.¹  One court recently recognized that “whether any benefits plan may agree to submit to arbitration and/or whether an individual employment agreement may compel claims on behalf of a benefits plan to proceed to arbitration are not issues of clearly settled law.”²  This issue is before two circuit courts of appeal this year.  So far, the court rulings in the cases seem to provide some guidance while a

Pamela Reynolds’ article discusses whether employers can enforce arbitration of breach of fiduciary duty claims under the Employee Retirement Income Security Act (ERISA) Section 502(a)(2).

Benefits Pro

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On May 12, 2022, the “Employee and Retiree Access to Justice Act” was introduced in the House of Representatives by Mark DeSaulnier (D-CA).  Senator Tina Smith (D-MN) introduced a companion bill in the Senate. The bill seeks to ban arbitration and discretionary clauses in employer-sponsored benefit plans governed by the Employee Retirement Income Security Act (ERISA).

The United States Supreme Court’s decision in Viking River Cruises v. Moriana will dramatically impact employers’ rights to enforce arbitration agreements related to claims under California’s Private Attorneys General Act (PAGA).¹  This decision, which is a significant win for employers with interests in California, will allow employers to compel arbitration of a PAGA plaintiff’s individual PAGA claims.

On July 8, 2022, in Gist v. ZoAn Management, Inc., the Oregon Supreme Court affirmed the decisions of the trial court and court of appeals granting the defendants’ motion to compel arbitration.  The court concluded that because nothing in the arbitration agreement prohibited the plaintiff from being awarded any relief he might be entitled to under Oregon’s wage and hour statutes, the arbitration provision was not unconscionable and therefore enforceable.

Background

The Human Rights Tribunal of Ontario recently held a preliminary hearing to determine whether allegations made under the Human Rights Code (Code) fell within the exclusive jurisdiction of a labour arbitrator, or whether the Tribunal had concurrent jurisdiction over employment-related human rights matters in a unionized workplace.  

On April 12, 2024, the U.S. Supreme Court addressed whether the Federal Arbitration Act’s (FAA) transportation exemption—meaning the FAA would not apply—only relates to workers within the transportation industry. In Bissonnette v. LePage Bakeries Park St., LLC,¹ the Supreme Court unanimously held Section 1 of the FAA exempts classes of workers who are actively engaged in interstate transportation, even if the individuals are not employed by a company in the transportation industry (the “Transportation Exemption”).

Two days before the United States Supreme Court ruled in Bissonnette v. LePage Bakeries Park St., LLC,¹ that the Federal Arbitration Act’s (FAA) transportation worker exemption (meaning the FAA would not apply) extends beyond the transportation industry, the U.S. Court of Appeals for the Ninth Circuit addressed whether the exemption applies to “contracts of employment” between business entities. In Fli-Lo Falcon, LLC v.

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo filed a long-anticipated complaint on May 18, 2023 against the University of Southern California (USC), the Pac-12 Conference, and the National Collegiate Athletic Association (NCAA), alleging that their failure to use the term “employee” to refer to student-athletes in the university’s student athlete handbook and related social media policies intentionally discourages student athletes from exercising their alleged Section 7 rights as employees under the National Labor Relations Act (NLRA).

Tyler A. Sims disagrees with a National Labor Relations Board (NLRB) regional director’s ruling that men’s college basketball players at Dartmouth College are employees for National Labor Relations Act (NLRA) purposes.

SHRM Online

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David Goldstein talks about some differences as the Labor Department proposes changes to a Trump-era rule that it says “undermined” how it handles and resolves discrimination claims by federal contractors.

Government Executive

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A New York state judge has denied motions to dismiss actor Julia Ormond's claims against a film company, its parent company, and a talent agency based on conduct by film producer Harvey Weinstein, who Ormond alleges assaulted her in December 1995 in her Manhattan apartment. In her lawsuit, Ormond alleges that these entities knew about Harvey Weinstein's predatory behavior before he sexually assaulted her in 1995 and failed to protect her. The ruling allows the case to proceed, highlighting the potential scope of liability of these companies.