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Federal Trade Commission Proposes Rule to Ban Non-Compete Agreements

Federal Trade Commission Proposes Rule to Ban Non-Compete Agreements

On January 5, 2023, the Federal Trade Commission (FTC) proposed a new rule that would ban employers from requiring their employees to sign non-compete agreements.  The FTC is currently accepting comments from the public.  https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete_nprm_fact_sheet.pdf

What is a Non-Compete Agreement?

A non-compete agreement is a legally binding contract that employers often use to protect their business interests. In this type of agreement, an employee agrees not to work for a competing company or start their own competing business for a certain period of time after leaving the employer’s company. The main purpose of a non-compete agreement is to protect the employer’s trade secrets, and confidential information, as well as its relationships with customers and clients. However, it’s important to note that the enforceability of non-compete agreements can vary depending on the specific language of the agreement and the laws of the state in which it is signed.

The FTC estimates that about 1 in 5 working Americans (30 million people) are bound by a non-compete agreement.   These agreements can affect all ranges of the work force, from fast food employees to highly compensated executives.  In proposing its rule to ban these onerous agreements, the FTC states:

‘By preventing workers across the labor force from pursuing better opportunities that offer higher pay or better working conditions, and by preventing employers from hiring qualified workers bound by these contracts, noncompetes hurt workers and harm competition.”

When workers are prevented from freely moving to a better opportunity, it stifles not only wages, but new businesses and new ideas.  When workers are confronted with the opportunity to take a new job, they often feel stuck because they are bound by a noncompete agreement.  The FTC estimates that the proposed rule would increase wages across all industries and job levels by $250 to $296 billion dollars per year.

Non-Compete Agreements in Indiana

Indiana has a long history of not favoring noncompete agreements; however, they are enforceable in Indiana.  Clients often contact us wanting to know if they can get out of their noncompete agreement.  Sadly, the answer they often receive is that while their agreement may not be enforceable, the only way to determine that is to litigate the issue, which can be very expensive.  Furthermore, most employers put provisions in their noncompete agreements that employees can be responsible for the employer’s attorneys’ fees if they challenge the agreement and lose.

The new rule currently proposed by the FTC would ban employers from enforcing existing noncompete agreements, as well as prevent them from using them in the future.  Employers would also have to notify their workers that the agreements are rescinded and no longer enforceable.

Conclusion

In summary, the FTC estimates the new rule would:   1.  Increase workers’ earnings by nearly $300 billion per year.  2. Save consumers up to $148 billion annually on health care costs.  And, 3. Double the number of companies founded by a former worker in the same industry.  If you are interested in commenting on the proposed rule, you can submit your comment here:  

If you are currently working under a noncompete agreement, or have questions about entering in to one, you should contact an experienced employment law attorney so that you know your rights and obligations.  Please feel free to call me for a free consultation.

Open Doors: Tips for Recruiting & Accommodating Individuals With Disabilities

Open Doors: Tips for Recruiting & Accommodating Individuals With Disabilities

For modern employers, there are a number of benefits to embracing diversity and expanding your workforce to include individuals with disabilities. Doing so can give you access to high levels of talent, improve team morale, and set an example for the rest of your industry – here are a few tips presented by Goodin Abernathy LLP` to get you started.

Culture

Before you start searching for your next hire, it’s important to cultivate a workplace culture in which differently-abled individuals can feel comfortable. Start by shaping the attitudes and behaviors of your existing staff – to help with this, you can use diversity seminars or even subscribe to one of the various online courses designed to educate workplaces on tolerance.

You could also look to improve your bureaucratic infrastructure by adjusting your company code of ethics and logistical expectations (such as providing more work-from-home days) and looking at where exceptions can be made to ordinary protocols. If in doubt, pay close attention to other companies and see how they’ve shaped policies to improve the inclusivity and consideration of all their team members.

Accessibility

Depending on an individual’s disability, they may not be able to engage with your company on a digital basis if they are not properly accommodated. Consider your website, for example. This can be easily adjusted for improved accessibility, thereby functioning as an advert for differently-abled talent. Start by introducing assistive measures such as the option to enlarge font sizes, use ARIAs (Accessible Rich Internet Applications), and access keyboard shortcuts. Or you could even try adopting assistive technology with speech recognition functions.

Mobility may be an issue for someone with a disability if the workspace is not built for the purpose. Fortunately, it’s straightforward to accommodate most individuals with a few remodels – these can include ramps, height-adjustable desks, specialized seating, grab handles, accessible washrooms, and more. Most of these should be claimable as ADA incentives, available to small businesses of any industry with yearly revenues under $1,000,000. 

Recruiting

If you haven’t worked with individuals with disabilities, it may be a good idea to bring in expert help – local or national organizations are often keen to lend their expertise or even oversee your recruiting drive. Failing this, it’s important to get to grips with inclusive language/protocols and to treat each candidate with respect and as an individual.

When you’re looking to incentivize young or graduate applicants, it can pay off to develop an internship program, giving exclusive opportunities to individuals with disabilities. This can be an excellent method for incubating new talent – just be sure to convene with an internship coordinator first and understand which policies will work best for the interns and your company.

Admin

As with any effort to recruit new talent, it’s crucial that you build airtight practices making the process as smooth and simple as possible. Start with your file types – PDFs can be read on most devices, and you can disperse these online or internally easily. An online drag-and-drop file converter can help with this.

You should also make sure that, when recruiting new staff, your business is established with the state so that you can maintain tax compliance and obtain a valid EIN. The IRS will use this for payroll taxes, and it will become necessary when it comes time to offer your employees retirement plans.

The best talent is usually the hardest to attract. If you want to appeal to clever, capable individuals with disabilities, you’ll have to show them that your company is willing to understand their requirements and take measures to accommodate them. With a few small adjustments, you can often see a big difference.

Disabilities and Discrimination

Laws for protecting individuals with disabilities from discrimination have been in place for many years, but the fight for fair and effective employment practices has only recently gained traction. Employers are now increasingly recognizing their responsibility to make reasonable accommodations that enable disabled employees to participate in the workforce. Disabilities not only should be acknowledged but also embraced, as recruiting and adequately accommodating these individuals can provide businesses with an incredibly diverse and talented pool of employees who bring specialized skillsets to the table.

As a result, businesses are encouraged to be proactive when it comes to creating job opportunities for people with disabilities and implementing changes that create a more comprehensive work environment. It is only through these proactive measures that employers can ensure equal opportunity and so foster a truly inclusive workplace culture.This includes enacting anti-discrimination laws which prevent employers from discriminating against potential employees on the basis of disability or medical condition.

Of course, if you ever have any questions about employment law, be sure to get in touch with us — click this link to see if you have a case.

Modern employment law has created unprecedented levels of opportunities for individuals with disabilities, allowing them to play a meaningful role in our workforce while having their rights as workers legally protected.

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How Do I Request Accommodation at Work? ADA Process

How Do I Request Accommodation at Work? ADA Process

Many qualified people with disabilities believe getting an accommodation at work from their employer is as simple as making a request, and that they are entitled to whatever accommodation they believe will allow them to most easily perform their job. However, there are steps both employers and employees must take regarding a request for accommodation. Moreover, an employer is not obligated to provide an employee the accommodation he/she requests or prefers. Rather, the Americans with Disabilities Act (“ADA”) only requires employers to provide accommodations that are reasonable.

Reasonable Accommodations Could Include:

  • Job restructuring
  • Part-time or modified work schedules
  • Reassignment to a vacant position
  • Acquisition or modification of equipment or devices
  • Appropriate adjustment or modifications of examinations
  • Training materials or policies
  • The provision of qualified readers or interpreters
  • Other similar accommodations for individuals with disabilities

One common example of a reasonable accommodation might be for a grocery store to allow one of its cashiers to use a stool to sit if he/she struggles with standing for extended periods of time. In more extreme situations where a person can no longer perform the essential functions of his/her current position due to disability, an employer may reasonably accommodate that person by moving him/her to another available position within the company. Of course, the person must be able to perform the essential functions of that available position, either with or without reasonable accommodation.

If In Need of Accommodation in Your Workplace

  • You must first inform your employer of your disability and need for accommodation
  • You and your employer must then begin an interactive process involving your healthcare provider(s) in order to gather information and evidence regarding the nature of your disability, severity, duration, activities limited by the disability and the extent to which the disability limits your ability to perform your essential job functions
  • Once your employer has that information,  they will be able to review the same and make their own determination as to whether your disability really does prevent you from being able to perform the essential functions of your job and whether any reasonable accommodation can be made to keep you as an employee of the company, even if in a different job and/or capacity.

It is important to bear in mind that an accommodation is not reasonable if it would create undue hardship to the employer. In determining whether the requested accommodation would create undue hardship, the Equal Employment Opportunity Commission (“EEOC”) looks at the cost of the accommodation in relation to the company’s financial stability, whether modifications would be unduly extensive or disruptive, and/or whether the modification would fundamentally alter the nature or operation of the job or the company. If there is no reasonable accommodation that would enable an employee to perform the essential functions of his/her position or another available position within the company, that employee is not a “qualified individual with a disability” and may be terminated. In such a case, that termination would not constitute wrongful discrimination.

If you have questions about requesting an accommodation, or if your employer has denied a request, it is important to know your rights under the ADA. Please call for a free consultation if you have any questions about accommodations in the workplace.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

Despite bitter partisan divide in Washington, both the House and Senate recently passed H.R. 4445 which will effectively end the forced arbitration of sexual assault and sexual harassment cases. (Read here.)

What does this mean? Many employees may not even be aware that they signed an arbitration agreement when they accepted the offer from their employer. Often these clauses are buried in employment agreements, and employees have no knowledge or understanding of what they even mean. However, employers favor forced arbitration because it keeps them out of court. The effect of forced arbitration clauses is that they close the courthouse doors for many victims of sexual assault or harassment.

When a new client comes to me with a claim of sexual assault or harassment, one of the first things we want to know is whether they signed an arbitration agreement. If a victim is bound by an arbitration agreement, then we can’t file a public lawsuit. Arbitration agreements empower employers to make low ball offers to settle and insist on confidentiality. These agreements effectively take away a victim’s right to go public with the allegations and exposing the perpetrators.

Many defense lawyers are surmising that this will result in a huge increase in the number of lawsuits being filed by victims, and larger settlements because corporations are no longer going to be able to force victims into a confidential arbitration proceeding. The guaranty of confidentiality means less exposure and publicity for perpetrators and the corporations for which they work.

While it remains to be seen whether this will cause an increase in lawsuits, this can certainly be viewed as a win for victims of sexual assault and harassment. The law basically amends the Federal Arbitration Act to make it easier for victims to file suit in State or Federal Court despite having previously agreed to arbitrate those claims. Victims will now have the right to choose to file their claims in court, rather than being forced by their employers to arbitration, thus allowing their claims will be heard by a judge, not an arbitrator.

The effects of the new law go beyond just giving victims their “day in court.” This will now force employers to effectively address sexual assault and harassment in the workplace. Gone are the days of paying off victims and buying their silence with a confidentiality agreement. By shining the light of a public proceeding on a perpetrator, it may prevent them from finding any future victims.

If you are a victim of sexual assault or harassment in the workplace, you need to know your rights. Call one of our experienced employment law attorneys for a free consultation

Related Articles:

– If you think you are working in a hostile work environment, but don’t know for sure, check out this article on what constitues a hostile work environment.

Discrimination Due to Special Needs

Discrimination Due to Special Needs

If an employer has discriminated against you because of your special needs, he or she is may be violating federal law as well as state and local laws.

In 1990, Congress passed a piece of civil rights legislation called the Americans With Disabilities Act (ADA). Title 1 of this legislation specifically prohibits workplace discrimination against individuals with disabilities. Such prohibitions apply to any business that has 15 or more employees on its payroll. The ADA also offers protection to individuals such as spouses or parents who may be subject to bias on the basis of a close relationship to a person with a disability.

Four other federal laws also specify protections for psychologically or physically challenged individuals:

The Rehabilitation Act

Section 501 of the Rehabilitation Act prohibits disability-related bias by federal employers and mandates affirmative action programs that will increase the number of employees with disabilities in federal workplaces.

The Workforce Innovation and Opportunity Act (WIOA)

Section 188 of the WIOA prohibits disability-related bias on the part of any employers who receive financial or programmatic assistance under the terms of the WIOA.

The Civil Service Reform Act (CSRA)

The CSRA contains language that stipulates against disability-related bias that targets both Civil Service employees and prospective employees.

Additionally, all 50 states have laws in place that prohibit workplace bias against individuals with disabilities though in some states, these laws only pertain to workplace discrimination on the part of public employers.

What Is a Disability?

The ADA doesn’t contain language that categorizes all the physical and psychological conditions that constitute disabilities. Instead, the ADA imposes a standard: If a condition has a negative effect on an individual’s ability to carry out the routine activities of daily life, then it constitutes a disability.

The ADA’s definition includes people who’ve been impaired in the past even though they may not be impaired when they’re employed or when they apply for employment. The ADA’s definition also includes people who are able to carry out major life activities but who are affected by a condition that is typically classified as a disability. Disabilities also include injuries that may prevent employees from working in their customary capacity for a limited amount of time.

Reasonable Accommodation

The ADA requires employers to make “reasonable accommodations” to either job duties or to the layout of a workplace that will enable an employee with special needs to do his or her job adequately. What might these accommodations reasonably include? Here are a few possibilities:

• Physical modifications such as raising or lowering the height of desks for people in wheelchairs or installing screen magnifiers on computers that are used by individuals with visual impairments.

• Moving a workstation closer to a restroom for a worker whose disability includes bladder or bowel control issues.

• Allowing a more flexible work schedule and use of leave time so that a worker can pursue medical treatments. This accommodation may also require granting additional amounts of unpaid leave time.

Under the ADA, however, employers are not required to make particular accommodations for physically disabled workers if those accommodations would impose “undue hardship.” The burden of proof will be on employers to prove that an accommodation an employee has asked for is too costly or too disruptive to be implemented. Both courts and the U.S. Equal Employment Opportunity Commission (EEOC) , which is the federal agency charged with enforcing ADA compliance, will look at a variety of factors here, including potential tax credits and the disabled employee’s own willingness to supply the accommodation or to pay for its costs.

Workplace Harassment

Harassment is considered to be a type of bias whether or not an individual is affected by a disability. The ADA has language that prohibits harassment as does the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

In its broadest sense, harassment is any unwelcome conduct that’s instigated by an individual’s race, color, sex, age, religion, place of national origin or disability. However, not every offensive remark constitutes unlawful harassment. In order to meet that standard, the offensive conduct must be a condition of continuing employment, or it must also create a workplace that a “reasonable person” would consider a hostile or intimidating environment.

The harassing individual can be anyone who is connected with a workplace, including a company’s owner, its managers, its employees, its independent contractors or even individuals who are not employees as might be the case with a vendor who delivers inventory on a regular basis. A harassment victim doesn’t have to be the individual who’s actually subject to unpleasant behavior, either; he or she can be someone who overhears the harassment and is deeply affected by it.

Employers are liable for harassment on the part of employees over whom employers have control. They’re also liable for harassing behaviors on the part of supervisors particularly if that harassment has negative implications for employment unless employers can prove either that they tried to correct the harassing behaviors or that the employee reporting the harassment did not take advantage of corrective opportunities offered by the employer.

Protect Your Rights

If you’re experiencing an unfair workplace situation that’s related to your disability, you have legal rights, and an experienced attorney can help you protect those rights. You are looking at tight statutes of limitations, so it’s important to contact a lawyer as soon as possible. In most instances, you will need to file a charge with the EEOC within 180 calendar days of the time you were refused accommodation or were subjected to harassment. (If you’re a federal employee, that statute of limitation is only 45 days.)

A discrimination attorney can evaluate your situation and help you decide whether or not your case is worth pursuing. These claims can be difficult to prove without concrete evidence of an employer’s bias, so it’s important to work with a legal professional who can help you compile the necessary evidence. An attorney can help you negotiate with your employer to get the accommodations that are your right. In worst-case situations, if your employer isn’t willing to make the accommodations that would help you keep your job, a lawyer may be able to help you receive compensation for your employer’s unlawful actions.

Violating the ADA doesn’t pay—just ask Walmart

by M. Alison Reed, JD

The Americans with Disabilities Act (ADA) is “one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream American life – to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.” (www.ada.gov)

Marlo Spaeth is one of these people. Marlo, a seasoned Walmart employee of 16 years, has Down Syndrome. Marlo’s schedule at the retail giant followed the same pattern for years—until Walmart decided to alter it. The change caused hardships for Marlo, who requested that Walmart change her schedule back to its original pattern. Marlo’s mother and sister also spoke to Walmart on her behalf, encouraging the company to grant Marlo’s request alleviating the hardships caused by the schedule change. Walmart refused. Marlo had difficulty adjusting to the new schedule, which lead to increased absenteeism and, eventually, her termination. (EEOC v.Wal-Mart Stores East, E.D. Wis.,No. 1:17-cv-00070 (E.D. Wis. 2021))

The ADA requires that employers provide “reasonable accommodations” for a worker’s disability. Marlo Spaeth was asking that her schedule be altered back to her original shift—a change of 60-90 minutes at the beginning and end of her shift. When Marlo was working her original schedule, she received “consistently positive reviews and feedback from her managers.” This led the US Equal Employment Opportunity Commission (EEOC) to believe Walmart “failed to provide reasonable accommodations” to Marlo, eventually firing her “due to her disability.” (Ryskamp, Dani Alexis, Jury Decides Walmart Must Pay Over $125 Million in Disability Discrimination Case, www.expertinstitute.com, July 29, 2021)

The EEOC sued Walmart on Marlo’s behalf, winning a judgment in excess of $125 million dollars. The judge has altered that amount according to federal statutory maximums, and Marlo Spaeth waits to hear the final amount of her settlement—which should include amounts to cover Marlo’s lost wages, litigation costs, and interest.

Have you or someone you know lost a job or not been considered for a position due to a disability? Have you recently been diagnosed with a disability and believe you may be entitled to Social Security Disability Insurance Benefits (SSD/SSDI) or Supplemental Social Security Income (SSI)? Do you have a child with a disability or special needs? The lawyers at Goodin Abernathy can help.

Applying for disability can be frustrating. The process takes a long time and oftentimes first time applicants are denied. Do you need someone to help walk you through the appeals process? Represent you in a hearing before an Administrative Law Judge? You don’t have to attempt this difficult process alone. Call Goodin Abernathy today for a Free Consultation.