Policy Matters

In an unprecedented move, the FTC has issued a Notice of Proposed Rulemaking that would render unenforceable all non-compete agreements currently in existence (with limited exception), and would bar employers from entering into any contract that that could conceivably prevent a worker from seeking or accepting certain employment, or operating certain businesses, after the conclusion of the worker’s employment with the employer. In Part One of our in-depth look at these proposed changes, host Scott Mallery is joined by experts Daniel Hart and Robert Milligan to discuss the fundamentals of non-compete agreements and what the rule’s adoption would mean for employers. Stay tuned for Part Two, in which the same hosts discuss potential constitutional challenges to the proposed rulemaking, as well as a bit on the politics undergirding this move.

On December 7, 2022, President Biden signed the "Speak Out Act," which immediately rendered unenforceable blanket non-disclosure and non-disparagement clauses entered into before any allegation of sexual assault or sexual harassment. Join our Policy expert Scott Mallery, with special guest Rob Szyba, as they break down the content of the Speak Out Act, and explore the potential repercussion for employers. Apart from the substance of the measure, Scott and Rob also discuss the catalyst behind the measure and whether Congress will continue to legislate in this space in 2023.

On this episode of Policy Matters Podcast, Seyfarth Partner Leon Rodriguez discusses the Biden Administration’s recent announcements on the SW border. Leon discusses the number of enforcement measures to increase security at the border, measures to expand legal pathways for safe orderly and humane migration, while also providing guidance for employers who wish to sponsor asylum seeking migrants in various industries.

As the dust settles following the 2022 Mid-Terms, including the Senate run-off in Georgia, we now have a clearer picture of the new Congress’s composition and what its make-up means for the 2023 Congressional session. In this episode of the Policy Matters Podcast, Seyfarth’s Government Policy gurus - Leon Rodriguez, Scott Hecker, and Scott Mallery - discuss how the chambers’ party alignments will impact key Labor and Employment issues, nominations and appointments, and policy priorities.

Americans recently went to the polls (or to ballot drop boxes) to cast their votes in the 2022 Mid-Terms. Following the November 8 elections, Congress’s exact composition remains up in the air and may remain so until the dust settles on Georgia’s December 6 Senate runoff between Sen. Raphael Warnock and challenger Herschel Walker. In the meantime, Seyfarth’s Government Policy wonks - Leon Rodriguez, Scott Hecker, and Scott Mallery - engage in a free-flowing discussion on what narrowly divided government could mean for Labor & Employment issues, judicial nominations, other Executive Branch appointments, and agencies’ rulemaking activities.

On this episode of the Policy Matters Podcast, Seattle Partner Adam Lasky joins DC Senior Counsel Scott Hecker to discuss the Eleventh Circuit’s decision narrowing the nationwide injunction of Executive Order 14042, how the government has responded to that decision, what COVID-19 risk mitigation protocols may be required for federal contractor employees, and how employers should prepare moving forward.

The classification of workers as either independent contractors or employees has been a nationally salient issue for decades, but especially so since the explosion of the so-called gig economy. Until January 6, 2021, the fair labor standards act did not provide a regulatory definition of what constitutes an independent contractor that is not subject to various federal employment laws. On that date, the DOL issued its final rule on “Employee or Independent Contractor Classification,” which for provided a more consistent analysis making the proper classification of a worker as an independent contractor more predictable under the FLSA. And predictability is typically good for business.

Upon Joe Biden’s election, however, the DOL delayed the effective date of that rule, proposed withdrawing it, and then, in early May 2021, formally withdrew the rule after a brief notice and comment period that carried strenuous objections, including from the U.S. Chamber of Commerce. The Rule’s withdrawal has been enjoined by a federal court, but the DOL has pledged not only to appeal that ruling, but also to issue a new notice of proposed rulemaking regarding the classification analysis.

In this special episode, Seyfarth Counsel Scott Mallery and Seyfarth Partner Camille Olson, legislative analyst extraordinaire and frequent witness providing testimony in front of congressional committees, provide an overview of where the law on misclassification at the federal level stands today, where it has been, and what the DOL’s new proposed rule might entail.

On this episode of the Policy Matters Podcast, the Scotts, Messrs. Hecker and Mallery, discuss Senator Bernie Sanders efforts to resurrect the idea of preventing employers who have labor law violations from contracting with the federal government. President Obama’s Executive Order 13673 - dubbed the “Blacklisting Order” - and its implementing regulations fell victim to the Congressional Review Act in 2017, so Scott and Scott evaluate whether the Biden Administration could revisit blacklisting and how worried employers should be about the prospect.

On March 18, 2022, the Federal Register published the U.S. Department of Labor’s notice of proposed rulemaking, “Updating the Davis-Bacon and Related Acts Regulations.” Among a laundry list of revisions, DOL is proposing to reinstate the “30% rule,” last used in 1983, for calculating prevailing wages under the Act. In this episode of the Policy Matters Podcast, Scott Hecker and Ted North break down the Act, and its proposed rulemaking revisions, as well as the role it will play in federal construction contracts moving forward. The Davis-Bacon Act touches 71 related acts and last year affected $217 billion in federal contracts, so employers should understand the proposed revisions and how to remain compliant - particularly with $1.7 trillion of federal infrastructure spending looming.

On March 3, 2022, President Biden signed H.R. 4445, marking the first time in a long time that our elected representatives in Washington, D.C. have passed a piece of significant legislation through regular order. Seyfarth’s employment lawyers Scott Mallery and Rob Szyba discuss the newly-enacted H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Rob and Scott explore the policies and backdrop that drove this legislation, potential impacts of the enactment of H.R. 4445, and what this means for employers with arbitration programs. Beyond just what the bill prohibits, Rob and Scott discuss potential ambiguities the language of the bill will likely present, and how those ambiguities might be interpreted once this measure hits the courts.