Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: Labor & Employment

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Four Key Takeaways from the FTC Director’s Remarks on the Proposed Rule to Ban Non-Compete Agreements

On January 11, 2023, Elizabeth Wilkins, the FTC’s Director of the Office of Policy Planning, spoke to the Capitol Forum about the FTC’s proposed rule to ban non-compete agreements.  This conversation was the most significant discussion of the proposed rule by the FTC since it was announced on January 5.  Below are the four most … Continue Reading

Federal Trade Commission Proposes Sweeping Ban on Non-Compete Clauses

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed an expansive new rule which would impose a near-complete ban on the use of non-competes (the “Proposed Rule”) by employers. The Proposed Rule is the culmination of the FTC’s recent efforts, following President Biden’s July 9, 2021 Executive Order on promoting competition in the economy, … Continue Reading

Supreme Court Rules on the Requirements for a Waiver of the Right to Arbitrate

The United States Supreme Court recently resolved a circuit split regarding when a party has waived its contractual right to arbitrate by participating in litigation prior to seeking to arbitrate a dispute. In Morgan v. Sundance, Inc., the Court held that the party seeking to resist arbitration does not need to show that it has … Continue Reading

Recent Change to New York’s Hearsay Law Could have Implications for Workplace Litigation

New York’s unique approach to evidentiary procedure – and specifically, its rules governing admissions by a party opponent’s agent – have frustrated litigators for years. Recent changes to New York’s rules on civil procedure, however, have brought the state’s approach to hearsay more in line with the standard set by the Federal Rules of Evidence. … Continue Reading

Employers Can Keep Employees on Premises Post-Shift—at a Cost

According to a recent decision, employers who want to keep employees on their premises for security checks after they have already clocked out must pay their employees to do so—at least in Pennsylvania. In 2013, two Amazon.com employees filed a putative class action in the Philadelphia County Court of Common Pleas against their employer, certain … Continue Reading

Uber Can’t Compel Arbitration of PAGA Claim According to California Court

On April 21, 2021, the Second Appellate District of the Court of Appeal of the State of California filed an unpublished opinion rejecting Uber’s attempt to enforce an arbitration provision that waived an employee’s right to bring a claim under the California Private Attorneys General Act (PAGA). This statute authorizes “aggrieved employees” to file lawsuits … Continue Reading

LinkedOut: Court finds Ex-Employee Likely Violated Non-Solicitation Provision with LinkedIn Post

The use of social media sites, like LinkedIn, can be a helpful tool to reach a customer base. But a recent district court case out of Minnesota exemplifies the need to ensure that LinkedIn usage complies with the user’s employment agreement. Specifically, in late July 2017, a Minnesota court in Mobile Mini, Inc. v. Vevea granted … Continue Reading

Colorado Court Sends Shepherds’ Wage-Fixing Antitrust Suit Out to Pasture

Defendants in a putative class action lawsuit alleging wage fixing antitrust claims no longer need to count sheep to rest easily. A district court judge in Colorado recently denied plaintiffs’ request for leave to amend, effectively dismissing claims brought by a group of shepherds working under the H-2A Visa Program, which covers agricultural guest workers. … Continue Reading

Understanding Your Employment Practices Liability Insurance Coverage

Employment Practices Liability Insurance (EPLI) policies typically provide coverage for both the company and its employees for certain defined “wrongful employment acts,” such as discrimination, illegal harassment, retaliation and wrongful termination. Navigating an EPLI policy can be tricky. Proskauer’s Anthony Oncidi and Bradley Lorden analyze the pros and cons to assist employer policyholders in procuring the type and amount … Continue Reading

Recent Decisions Clarify (Un)Enforceability of Class Action Waivers in Employment Agreements

Companies looking to waive class action rights of employees may instead be waving goodbye to provisions in their employment contracts. Two recent decisions in California—one administrative and one in the 9th Circuit—recently found that class action waivers in employment contracts were unenforceable as a matter of law and public policy, resulting in the removal of … Continue Reading
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