Stokes Wagner Law Firm
Stokes Wagner

On July 9, 2021, President Biden issued his Executive Order directing federal agencies to implement seventy-two different initiatives intended to promote competition across the American economy. Ideally, these initiatives will spur economic growth and recovery. Critical for employers, President Biden’s “Executive Order on Promoting Competition in the American Economy” seeks to ban or limit the ability of employers to use non-compete agreements in order to make it easier to change jobs and raise wages. Although the executive order does not render non-compete provisions illegal, employers should take particular caution in deciding whether a non-compete provision is necessary to protect their business interests moving forward.

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Unionized employers in Illinois may have a useful defense to expensive employee BIPA lawsuits: the management rights clause and federal preemption law. A grievance might be a lot cheaper than a lawsuit.

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On June 17, 2021, the Cal-OSHA Board voted 5-1 to adopt its proposed revisions to its Emergency Temporary Standards (ETS), which much more closely align with the CDC guidance. That same day, Governor Gavin Newsom signed an Executive Order enabling these rules to go into effect immediately. The revised ETS, among other things, allows fully vaccinated workers to discontinue mask usage and social distancing.

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Anyone who has considered filing a petition for writ of mandate from a superior court ruling knows the odds are not in favor of the court granting this extraordinary relief. Apart from clear error, the requirement of showing irreparable harm is a hurdle that derails even the strongest advocates, but some cases present such important questions of law, they warrant a writ. General Atomics v. Superior Court, filed May 28, 2021, was one such case.

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On May 18, 2021, Santa Clara County’s Health Officer passed a public health order requiring businesses to track the vaccination status of their employees, contractors, or volunteers by June 1, 2021. Businesses must now take steps to determine whether each of their employees is fully vaccinated or not, regardless of whether they are working remotely or on-site. They must also maintain records for each staff member reflecting that person’s vaccinated status.

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On January 1, 2021, Georgia joined 41 other states in allowing a person to remove certain convictions from their criminal record after a period of “conviction-free” years. With the passage of SB 288, an individual of any age may petition their original sentencing court to restrict and seal the record of a misdemeanor offense four years after they have completed their sentence. The individual can make this petition as long as they have not been convicted of a new offense in those four years and do not have any pending charges.

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On April 21, 2021, the City of Chicago passed the “Vaccine Anti-Retaliation Ordinance,” which allows all workers in Chicago—including independent contractors—to get vaccinated during their work hours. The Ordinance went into effect immediately on April 21, 2021, and applies to employers of any size in the City of Chicago.

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On January 27, 2021, the Third Circuit Court of Appeals let employers know that they cannot use recommendations from psychologists to justify disability discrimination in hiring. In Gibbs v. City of Pittsburgh, 989 F.3d 226 (3d Cir. 2021), the City routinely relied on psychologists to evaluate applicants for jobs as police officers. The plaintiff in Gibbs had aced the written test and received a conditional job offer, but two of the three psychologists who interviewed him recommended against his hiring because of his ADHD diagnosis and some criminal history as a youth, which occurred before he began treatment for his ADHD. The trial court dismissed his complaint essentially because it found that passing the psychological test was a prerequisite for the job and concluded that reliance on it did not reflect actionable discrimination. The Third Circuit, however, disagreed.

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On March 11, 2021, the House of Representatives passed H.R. 842. The Protecting the Right to Organize Act (“PRO Act”) would amend aspects of the National Labor Relations Act (“NLRA”) by expanding protections of employees’ rights to collectively bargain in the workplace and penalizing companies that violate those rights.

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On April 16, 2021, Governor Newsom signed a statewide right to recall ordinance (SB 93) into law. SB 93 is effective immediately. SB 93 codifies Labor Code section 2810.8 and requires hotels with more than 50 guestrooms to recall laid-off employees based on hire-date seniority.

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