Employment Law Archives - The National Law Forum

Pennsylvania Federal Court Declines to Preliminarily Enjoin FTC Rule Banning Non-Competes

Earlier today (July 23, 2024), Judge Hodge in the U.S. District Court for the Eastern District of Pennsylvania denied a tree care company’s motion to stay the effective date and preliminarily enjoin the Federal Trade Commission’s (“FTC”) proposed final rule (“Final Rule”) banning nearly all non-competes. ATS Tree Services, LLC v. Federal Trade Commission, No. 2:24-cv-01743-KBH (E.D. Pa.). The decision comes in the wake of the U.S. District Court for the Northern District of Texas’ July 3, 2024 ruling to the contrary in Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E, which stayed the Final Rule’s effective date as to the plaintiffs in that case, but had no nationwide effect.

The Pennsylvania Court’s Decision

The Pennsylvania court denied Plaintiff ATS Tree Services, LLC’s (“ATS”) request for a preliminary injunction based on its conclusion that the company failed to establish that it (i) would suffer irreparable harm if injunctive relief was not issued; and had a reasonable likelihood of succeeding on the merits of its claims.

ATS argued it would be harmed by incurring “nonrecoverable efforts to comply” with the Rule, and by losing “the contractual benefits from its existing non-compete agreements.” ATS described its nonrecoverable compliance costs as: costs associated with notifying its twelve employees of the change in accordance with the Rule’s notice provision; the costs and efforts to “review and modify [its] business strategy”; and the unquantifiable costs and efforts of altering its specialized training program. But court found these either insufficient or too speculative to support injunctive relief. ATS further argued it would face the risk that its employees would leave and transfer confidential information to direct competitors. The court found these risks too speculative.

ATS also unsuccessfully argued that it would succeed on the merits because, it asserted, the FTC lacks substantive rulemaking authority under its enabling statute, the FTC exceeded its authority, and Congress unconstitutionally delegated legislative power to the FTC. The court rejected each argument. The court further found that the “major questions doctrine” did not apply, because the Final Rule falls within the FTC’s core mandate, and the FTC has previously used its Section 6(g) rulemaking power in similar ways to the Final Rule.

Looking Forward

The Pennsylvania court’s decision did not analyze the Ryan decision, which reached contrary conclusions. It is likely that the dispute will ascend to the Third and Fifth Circuits, respectively. Notably, the Ryan court has indicated that it intends to issue a final judgment on the merits by August 30, 2024, which is likely to be appealed, and the Final Rule is scheduled to become effective by September 4, 2024.

Federal Court Enjoins Federal Trade Commission’s Rule Prohibiting Non-Competition Agreements (US)

In January 2023, the U.S. Federal Trade Commission (FTC) proposed a sweeping rule that, with limited exceptions (such as for highly compensated executives or in connection with the sale of a business), would prohibit employers from entering into post-employment non-competition arrangements with workers. (See our post here.) Under the proposed rule, an agreement between an employer and a worker – not just employees, but also independent contractors, interns, and even volunteers – that would prevent the worker from seeking or accepting employment, or from operating a business, after the conclusion of the worker’s working relationship with the employer would be unlawful. As proposed, the rule not only applied prospectively, but invalidated previously entered-into non-competition arrangements. After a notice-and-comment period, the FTC issued the “Final Rule” on April 23, 2024 and it is scheduled to go into effect September 4, 2024.

As expected, the FTC’s Final Rule immediately generated legal challenges. Among the arguments advanced by those opposing the Final Rule were that the FTC lacks legal authority to regulate unfair methods of competition, that the FTC’s actions violated the “major questions doctrine” because the FTC’s actions lacked authorization from Congress, and that the FTC’s actions constituted an unconstitutional delegation of legislative power.

On July 3, Judge Ada Brown of the United States District Court for the Northern District of Texas issued the first ruling in these pending challenges to the Final Rule (Ryan LLC v. Federal Trade Commission). In her 33-page decision, Judge Brown preliminarily enjoined the Final Rule from going into effect on September 4, 2024 but only with respect to the Plaintiffs in the action—consisting of one private business (Ryan, LLC), the U.S. Chamber of Commerce, the Longview, Texas Chamber of Commerce, and two trade organizations (Business Roundtable and the Texas Association of Business)—and signaled that the Final Rule is unlikely to pass final judicial review on the merits for a number of reasons.

First and foremost, Judge Brown found unconvincing the FTC’s explanation that it was authorized to publish the Final Rule under its broad powers to prevent unfair methods of competition. In its briefing, the FTC argued that it is an unfair method of competition for persons to enter or enforce non-compete agreements, and that the powers entrusted to the FTC empower the agency to make substantive rules precluding unfair competition. The court rejected this argument. Although Judge Brown acknowledged that the FTC has the authority to make certain “housekeeping” rules dealing with unfair or deceptive practices, the FTC Act does not “expressly grant the [FTC] authority to promulgate substantive rules regarding unfair methods of competition.” Because agencies only have “the powers that Congress grants through a textual commitment of authority” and Congress has not expressly delegated substantive rulemaking to the FTC to regulate unfair competition, the court found that the FTC exceeded its authority in enacting the Final Rule.

Although the first reason was by itself sufficient to find that the Plaintiffs had established a likelihood of success on the merits, the court also found that the FTC’s rulemaking was arbitrary and capricious: “[The Final Rule] imposes a one-size-fits-all approach with no end date,” and thus lacks a rational connection between the agency’s goal of preventing unfair competition and the “categorical ban” it adopted without “targeting specific, harmful non-competes.” The court specifically noted the FTC’s failure to consider any alternatives to a blanket ban on non-competes, failure to consider the potential “pro-competitive justifications” of such covenants, and failure to differentiate the effect of non-competes among different types and classes of workers.

The court also had little trouble finding that the Final Rule would result in irreparable harm to the Plaintiffs, agreeing that its implementation would “announce open season” for poaching workers and increase the risk that departing workers would take valuable intellectual property and proprietary methods to competitors. The operational cost of complying with a likely invalid rule and the nonrecoverable financial costs associated with complying with the Final Rule before its effective date were sufficient to demonstrate a significant risk of irreparable harm. Thus, finding that the injury to the Plaintiffs and the public interest would be great if the court were not to enjoin the rule, the court granted the Plaintiffs preliminary injunctive relief and stayed the Final Rule’s effective date as to the Plaintiffs. The court would not, however, grant nationwide injunctive relief and limited its preliminary injunction and the stay of the Final Rule’s effective date to the Plaintiffs before the court. However, Judge Brown noted that she “intends to enter a merits disposition on th[e] action on or before August 30, 2024,” a decision likely to convert the preliminary injunction to permanent relief. Between this initial blow to the Final Rule and the pendency of other lawsuits in Texas and Pennsylvania attacking the Final Rule, the chances of the FTC’s non-compete ban going into effect appear to be in serious jeopardy. We’ll continue to monitor and update with further developments.

New DOL Salary Threshold for Most White-Collar Exemptions Is Now in Effect

Update July 1, 2024: The U.S. Department of Labor’s new rule on the required salary threshold for employees to qualify as exempt from overtime is now in effect as of July 1, 2024. Although the federal district court for the Eastern District of Texas issued an injunction blocking enforcement of the new rule against the State of Texas as an employer on Friday, June 28, 2024, that injunction does not apply to other employers, including private businesses. Thus, the new salary thresholds for exempt status, as detailed below, are in effect nationwide. Other lawsuits challenging the regulation remain ongoing, and should continue to be monitored for any further developments.

The U.S. Department of Labor (DOL) has issued a final rule that significantly raises the required salary threshold for many salaried exempt employees starting July 1, 2024. Under this final rule, issued on April 23, 2024, the guaranteed salary that most employees must receive to qualify as exempt from the overtime rules will increase dramatically over the next nine months. Effective July 1, it will jump from $35,568 per year to $43,888 per year; and then just six short months later, on January 1, 2025, it will jump to $58,656 per year.

Under the Fair Labor Standards Act, employees who work in executive, administrative, professional, and certain computer positions must generally meet both the salary basis test and the job duty requirements to be classified as exempt from the overtime rules. In addition to being paid on a salary basis (which means there can be no deductions from salary, subject to certain limited exceptions), the threshold salary is currently $684 a week, amounting to $35,568 annually. The final rule raises the threshold for salaried employees significantly, according to the following schedule:

Effective July 1, 2024: $844 per week (equivalent to $43,888 per year)
Effective January 1, 2025: $1,128 per week (equivalent to $58,656 per year)
Effective July 1, 2027, and every three years thereafter: To be determined based on available earnings data

In addition, the new rule increases the total annual compensation threshold for highly compensated employees from $107,432 per year to $132,964 per year effective July 1, followed by yet another increase to $151,164 per year effective January 1, 2025. This will result in an increase of nearly $44,000 per year to the salary threshold necessary to qualify for the highly compensated employee exemption.

It is widely expected that various business and industry groups may file suit to attempt to block these changes from taking effect. Many employers may remember that a similar scenario occurred in 2016, when the DOL under the Obama Administration proposed a large increase in the salary threshold for these white collar exemptions, before that increase was blocked by court action. If the final rule issued by the DOL is not blocked through court action, it will mean significant changes for employers in compensation structure, as more employees nationwide will qualify for overtime pay unless their salaries are increased over the new threshold.

Employers should immediately review their workforces to determine what changes, if any, may be necessary if the final rule takes effect. Possible considerations include:

Raising the annual salary of employees who meet the duties test to at least $43,888 as of July 1, and $58,656 as of January 1, 2025, to retain their exempt status;
Converting employees to non-exempt status and paying the overtime premium of one-and-one half times the employees’ regular rate of pay for all overtime hours worked; or
Converting employees to non-exempt status and eliminating or reducing the amount of overtime hours worked by such employees.

Similar considerations should be undertaken with highly compensated employees. While it is wise to review pay practices proactively and identify potential changes that may become necessary, employers may wish to continue to monitor legal developments prior to actually implementing such changes. As employers will recall from 2016, significant changes can occur between the announcement of a final rule and the date on which it is scheduled to become effective.

Employers are encouraged to consult with legal counsel to discuss their options and strategies for implementing these changes, if necessary.

Supreme Court Weakens NLRB’s Ability to Obtain Injunctions in Labor Cases

On June 13, 2024, the Supreme Court of the United States held that courts must assess requests for an injunction by the National Labor Relations Board (NLRB) using the traditional four-factor test for preliminary injunctions. The ruling weakens the Board’s ability to obtain quick court orders to maintain the “status quo” in favor of workers in pending labor cases.

Quick Hits

The Supreme Court held that federal courts must apply the traditional four-factor equitable test for preliminary injunctions when considering the NLRB’s request for a 10(j) injunction.
The ruling found the NRLA does not require courts to defer to the NLRB’s initial findings of a labor violation.
The ruling weakens the NLRB’s ability to quickly stop employer actions it alleges are unfair labor practices.

The Supreme Court held that when considering temporary injunction requests under Section 10(j) of the National Labor Relations Act (NLRA), courts must apply the traditional equitable four factors as set forth in the high court’s 2008 decision in Winter v. Natural Resources Defense Council, Inc. The decision means that courts must consider 10(j) injunction requests under the same equitable principles that they do for other preliminary injunctions without deferring to the NLRB’s determination that an unfair labor practice had occurred.

The unanimous decision comes in a labor dispute in which the trial court issued a preliminary injunction against an employer after applying a two-part test that only asked whether “there is reasonable cause to believe that unfair labor practices have occurred” and whether an injunction is “just and proper.” The injunction was later affirmed by the Sixth Circuit Court of Appeals.

The NLRA prohibits employers from engaging in certain unfair labor practices and allows workers to file a charge with the NLRB. The NLRA provides the NLRB with authority to seek a temporary injunction in federal court and Section 10(j) states that courts may “grant the Board such temporary relief … as it deems just and proper.”

However, the Supreme Court held that the NRLA does not strip courts of their equitable powers, and they must apply the traditional four-factor rule as articulated in Winter when considering a request for a 10(j) injunction. Under that rule, a plaintiff must show “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The Supreme Court rejected the NLRB’s argument that Section 10(j) informs the application of equitable principles and that courts should use a “reasonable cause” standard as applied by the Sixth Circuit in the case. The NLRB had pointed to the context that Congress has given it the authority to adjudicate unfair labor practice charges in the first instance and that courts must give deference to the NLRB’s final decisions.

Justice Clarence Thomas, in the Court’s opinion, stated that the reasonable cause standard “substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.” Justice Thomas stated the fact that the NLRB is the body that will adjudicate unfair labor practice charges on the merits does not mean courts must defer to what amounts to be the NLRB’s initial litigating position. Section 10(j) “does not compel this watered-down approach to equity,” Justice Thomas stated.

In a partial dissent, Justice Ketanji Brown Jackson agreed that the NRLA does not strip courts of their equitable powers and that the injunction in the case should be overturned. However, Justice Jackson argued the Court should not ignore the fact that Congress, through the NRLA, granted the NLRB authority over labor disputes.

Key Takeaways

The Supreme Court’s ruling raises the bar for the NLRB to seek injunctions by requiring courts to make their own assessment of the equitable factors for issuing preliminary injunctions without deference to the NLRB’s initial findings that an unfair labor practice has occurred. Under the reasonable cause standard, the NLRB merely had to show that its legal theory was not frivolous and that an injunction was necessary to protect the “status quo” pending the NLRB’s proceedings. That standard had allowed the NLRB to quickly put a stop to employer actions that its in-house attorneys believe are labor violations during the pendency of an administrative proceeding on the merits, which could take years to resolve.

Navigating Politics in the Workplace

In this election year, employees inevitably will engage in discussions of the impactful and divisive political issues that are at the forefront of our national discourse. Employers must be aware of the ways in which political discussions in the workplace have intensified and be prepared to navigate the legal and other challenges posed by these interactions. This checklist provides employers with an overview of key topics to consider when addressing issues related to political speech in the workplace.

1. First Amendment Protection. The First Amendment protects freedom of speech, but it generally applies only to governmental action. Private employers generally have latitude to restrict political speech in the workplace unless it implicates other legal protections.

2. National Labor Relations Act (NLRA). Section 7 of the NLRA protects non-supervisory employees in the private sector, regardless of whether they are members of a union. Employers generally cannot restrict covered employees’ discussions related to the terms and conditions of their employment, i.e., “protected concerted activity.” Political speech that also falls under NLRA protection must be considered carefully.

3. Anti-Discrimination and Anti-Harassment Policies. Political speech may implicate discrimination or harassment concerns when it includes topics related to protected categories or characteristics, e.g., race, gender, religion. Employers should have robust anti-discrimination and anti-harassment policies that cover these issues.

4. State Laws Protecting Political Speech. State laws may protect employees’ political activity, expression or affiliation. These laws include prohibitions against initimdation, threats, or adverse actions based on employee voting, political activities, or candidate endorsements. Employers must assess their policies and practices in each state where they have employees because the scope of these laws varies by jurisdiction.

5. Respectful Workplace and Other Policies. Employers should consider adopting policies that promote respectful behavior and prevent political discussions from escalating into conflicts. Employers also should consider dress code and other workplace policies concerning political attire or messages, and ensure consistent, content-neutral enforcement of those policies. When reports of potential policy violations are made, employers should respond promptly.

6. Train Employees. Employees should receive regular training on company policies and their rights, including the boundaries of political speech in the workplace.

Employers should tailor their policies to address political speech while respecting employees’ rights and maintaining a positive work environment. Each workplace is unique, however, and issues often require context and fact-specific solutions with the assistance of counsel.

The FDA Wants To Reschedule Cannabis. Does That Mean All Employees Can Soon Legally Use It?

On May 21, 2024, the Drug Enforcement Agency (DEA) issued a notice of proposed rulemaking indicating that the U.S Food and Drug Administration (FDA) intends to transfer marijuana from Schedule I to Schedule II of the Controlled Substances Act (CSA). This notice is consistent with opinions from the Department of Health and Human Services (HHS) acknowledging that marijuana has currently accepted medical uses as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence. But assuming that the proposed rescheduling goes through, does that mean that cannabis is now federally legal, leaving employees free to consume cannabis like any other legal substances such as alcohol?

The short answer is “no.”

While rescheduling cannabis as a Schedule II drug may go a long way to opening doors for additional cannabis research and generally changing perceptions on cannabis use, such rescheduling does not make possession or use of cannabis “legal” at the federal level. The federal ban, though, is still against the weight of the direction many states are heading across the country. Recreational cannabis is now legal in 24 states and the District of Columbia. Considering that just 12 years ago there were only two states with legal recreational cannabis, it is not hard to see where the trend is heading. In fact, when accounting for medical cannabis programs, there are now only six states that do not offer any sort of legalized cannabis.

Perhaps unsurprisingly, recent drug testing data suggests that the increasing legality at the state level is resulting in increased cannabis use across the country. Positive drug tests for cannabis are on the rise. In Michigan, for example, positive cannabis drug tests have more than tripled since 2008. Notably, while cannabis positive tests are on the rise, use of other drugs such as opiates and cocaine have been steadily decreasing. Another study related to drug testing showed that employees are increasingly trying to thwart these drug tests. In 2023, drug tests with signs of tampering increased an astonishing 633% — the highest rate in more than 30 years.

With all these factors in mind, what might the “best practice” be for employers as it relates to the treatment of cannabis among their workforce? Of course, the answer is not a “one-size-fits-all” issue. The decision will depend on a number of factors, including certain jurisdictions’ prohibition on testing for cannabis, anti-discrimination laws protecting the use of cannabis, laws requiring drug testing for certain jobs, and position-specific questions surrounding job duties (e.g., desk job versus operating heavy machinery or other safety-sensitive positions). Still, what many employers may have considered as a best practice for years is one that should be reconsidered in light of these rapid developments.

6 Strategies for Recruiting Top Legal Talent

Recruiting top-tier legal talent is not merely a goal but a necessity for sustained success. Whether your firm is planning to strengthen expertise in niche practice areas or expand the firm’s capabilities, attracting and retaining adequate talent is one of the most critical aspects of the strategic planning process. However, the process of sourcing attorneys can be complex, requiring a multifaceted approach that taps into various channels and recruiting strategies. Your search must be thorough when looking for the best person for the job. Whether you lead a boutique law firm or a multinational megafirm, you must know all your options for locating your next, best hire. If you are curious about your options, we have you covered!

Here is Performlaw’s list of the top 6 ways to source and legal talent.

Law School Recruiting

SUMMER ASSOCIATE PROGRAMS

Summer associate programs offer a structured platform for law firms to evaluate and engage with prospective hires. Law firms typically offer summer associate programs to law students between their second and third years of law school. These programs provide students with hands-on experience working in law firms to develop the fundamental skills for success as an associate. The skills summer associates typically focus on developing include legal research, drafting documents, and participating in client meetings and negotiations. Summer associates often rotate through different practice areas within the firm to gain exposure to various areas of law.

These programs are a win-win because they allow firms to evaluate potential future hires and allow students to assess whether they are a good fit for the firm and the practice area(s) in general. Having a summer associate program in place in your firm is a classic recruiting strategy that is a surefire way for law firms that want to grow and/or prepare for longevity in the industry.

Where you recruit matters! Many firms stick to Law Schools in their personal network or those near the physical geography of the firm. This is an excellent choice however, let’s consider how you can optimize your program. It is important to remember that the summer associate program presents the firm with an excellent opportunity to diversify the talent pool. Recruiting from schools that may not be within your typical network could position your firm to pull in fresh perspectives and improve your firm culture. We encourage you to be intentional about diversifying your talent pool! That means creating relationships with Private, State, and HBCU law schools and taking trips to recruiting events! This is especially important for firms who have taken the pledge to be a part of the Mansfield Rule!

NEW GRAD HIRES

Ok, so you have your summer associate program, and it is going well. If you want to grow your firm fast, double down on the new graduate hires! You should also consider recent graduates who have not participated in your summer associate program. Some law firm leaders get nervous about hiring new grads because they fear investing time and money into someone who might leave or underperform. Let’s be real: attrition is something no business owner enjoys, and being perfectly honest, anyone could leave you at any time for any reason; that is the reality of business. The best thing to do is to prepare in advance. Go in understanding that only a fraction of hires will stick around long term, and make peace with it; the key is to prepare your budget in advance with attrition in mind, but do not allow the idea of attrition to pre-defeat you in building your team. If your firm can afford to hire more than you would like to actually retain long-term, you should do it! Once attrition occurs, the firm is less likely to be unable to produce.

Recent graduates often bring fresh perspectives, cutting-edge legal knowledge, and a strong work ethic to the table. Their recent immersion in legal academia equips them with an up-to-date understanding of evolving legal principles and practices. Moreover, recent graduates tend to be highly adaptable, eager to learn, and open to guidance, making them valuable assets to any law firm; investing in their development can yield long-term benefits. By providing mentorship, training, and opportunities for growth, law firms can foster loyalty and retention, nurturing young talent into seasoned legal professionals who contribute significantly to the firm’s success.

Aside from funneling talent through your summer associate program, participating in on-campus recruiting events, job fairs, and networking sessions can facilitate connections with graduating students seeking entry-level positions. Offering competitive compensation packages, professional development opportunities, and flexible work models can incentivize graduates to choose your firm over competitors. Remember, don’t limit your firm to only choosing recruits from the top of the class. We urge you to broaden your perspective and challenge your firm to cultivate talent through your leadership and mentorship!

Professional Legal Recruiting Services

Sometimes, you really don’t have the capacity or team to build out an entire summer associate program, or maybe you just really need a lateral hire, or perhaps you just prefer that a recruiting specialist handles the sourcing and recruiting for your firm. This is where legal recruiters come into play. Legal recruiters specialize in the legal industry and possess a deep understanding of its nuances, including the specific skills, qualifications, and experience required for various roles. This expertise allows them to efficiently identify candidates who not only meet the basic job requirements but also possess the desired cultural fit and potential for long-term success within the firm. By leveraging their industry knowledge and extensive networks, legal recruiters can save law firms significant time and resources in the hiring process.

Additionally, legal recruiters can provide valuable insights and guidance throughout the hiring process, from refining job descriptions to navigating salary negotiations, streamlining the entire recruitment journey, and reducing the risk of costly hiring mistakes. Also, legal recruiters offer a level of discretion and confidentiality that can be necessary when making hiring and onboarding moves in the competitive legal market. Confidentiality is often desired for both law firms and candidates, particularly when it comes to exploring new career opportunities or replacing existing positions. Legal recruiters understand the importance of discretion and can maintain confidentiality throughout the recruitment process, protecting the reputations and interests of both parties involved. This ensures that sensitive information remains secure and minimizes the potential for any disruptions or conflicts that could arise from a publicized job search.

We suggest using legal recruiters when you seek a lateral attorney or an attorney with a specialized skill set. Legal recruiters can expedite the recruitment process while ensuring the quality of hires. Of course, nothing worth having comes free, legal recruiters typically get paid through a contingency fee or a retained fee model. In a contingency fee arrangement, the recruiter is compensated only if they successfully place a candidate with the law firm, usually receiving a percentage of the candidate’s first-year salary. Alternatively, in a retained fee model, the law firm pays the recruiter upfront to conduct a thorough search for suitable candidates, regardless of whether a hire is made, with the fee often being a portion of the anticipated salary for the position. The specific payment structure may vary depending on the agreement between the law firm and the legal recruiter.

Firm Website Careers Section

A well-curated careers section on the firm’s website serves as a primary point of contact for prospective candidates. Clear and comprehensive job postings detailing roles, responsibilities, and qualifications can attract qualified applicants. Additionally, showcasing the firm’s culture, values, and employee testimonials can resonate with potential candidates, fostering interest in joining the team.

Moreover, leveraging the careers section of the firm’s website as a platform for thought leadership can further enhance its effectiveness in attorney recruitment. Publishing blog posts, articles, or case studies that highlight the firm’s expertise in specific practice areas not only demonstrates its legal prowess but also serves as a magnet for top legal talent seeking opportunities for professional growth and development. Positioning the firm as a thought leader within the legal industry can attract candidates who are not only interested in the job but also in contributing to and learning from a team of experts.

Furthermore, the careers section can be utilized to provide insights into the firm’s career progression paths and professional development opportunities. Offering information about mentorship programs, continuing education initiatives, and opportunities for advancement can appeal to ambitious candidates who are looking to build long-term careers within the firm. Clear pathways for career growth not only attract talented individuals but also contribute to employee retention by demonstrating the firm’s commitment to investing in the success and fulfillment of its legal professionals. In essence, the careers section of the firm’s website serves as more than just a job board; it’s a window into the firm’s culture, values, expertise, and opportunities for professional advancement, making it a powerful tool for attorney recruitment and retention.

Networking:

To optimize networking efforts in attorney recruiting, it’s essential to approach these interactions with a strategic mindset and genuine interest in building meaningful connections. While attending legal industry events, bar association meetings, and alumni gatherings, it’s important to engage with attendees rather than simply collecting business cards actively. Taking the time to listen to others, ask thoughtful questions, and share insights about the firm’s culture and opportunities can leave a lasting impression and lay the foundation for fruitful relationships. Additionally, participating in panel discussions, speaking engagements, or hosting informational sessions can further showcase the firm’s expertise and provide valuable networking opportunities.

In addition to attending organized events, cultivating relationships with legal professionals, alumni networks, and referral sources on an ongoing basis is crucial. Regular communication through personalized emails, phone calls, or coffee meetings can help nurture these connections and keep the firm top of mind when potential opportunities arise. Building rapport with individuals who may not be actively seeking employment but are well-connected within the legal community can also lead to valuable candidate referrals. By investing time and effort into cultivating a robust network of contacts, firms can tap into a diverse pool of talent and gain insights into the ever-evolving talent landscape.

Furthermore, leveraging technology can enhance networking efforts and extend the firm’s reach beyond traditional face-to-face interactions. Utilizing professional networking platforms such as LinkedIn allows firms to connect with legal professionals across geographic boundaries and engage with both active and passive job seekers. Engaging in relevant online discussions, sharing industry insights, and showcasing the firm’s thought leadership can help attract candidates who align with the firm’s values and vision. By integrating online networking with offline efforts, firms can create a comprehensive networking strategy that maximizes their ability to connect with top legal talent.

Job Boards:

To effectively leverage job boards in attorney recruiting, firms must first identify the platforms that best align with their recruitment needs and target candidate demographics. Utilizing reputable job boards tailored to the legal profession, such as Lawjobs, Indeed Legal, and LinkedIn’s Legal Jobs section, ensures that job postings reach a qualified and relevant audience of legal professionals. These platforms offer features that allow firms to narrow down candidate searches based on specific criteria such as experience level, practice areas, and geographic preferences, helping to streamline the recruitment process and target candidates who best fit the role.

Crafting compelling job descriptions is essential to capturing the attention of potential candidates and encouraging them to apply. Job postings should clearly outline the responsibilities, qualifications, and expectations for the role, providing candidates with a comprehensive understanding of the position. Moreover, incorporating elements that highlight the firm’s unique selling points, such as its culture, values, and career development opportunities, can help differentiate the job posting from others and attract top talent. Additionally, leveraging targeted advertising on job boards can increase the visibility of job postings and ensure they are seen by the most relevant candidates. By strategically allocating advertising budget to promote job postings to specific demographics or geographic regions, firms can maximize their reach and attract qualified applicants.

Furthermore, job boards offer valuable insights and analytics that can inform recruitment strategies and optimize the effectiveness of job postings. Tracking metrics such as the number of views, applications received, and applicant demographics can help firms evaluate the success of their job board postings and make data-driven decisions to improve future recruitment efforts. Additionally, job boards may offer features such as applicant tracking systems (ATS) or candidate matching algorithms, which can streamline the recruitment process by organizing applicant data and identifying top candidates based on predefined criteria. By harnessing the capabilities of job boards and leveraging data-driven insights, firms can enhance their recruitment strategies and attract the best legal talent to join their team.

Social Media:

Social media is a great way for law firms to enhance their attorney recruiting efforts by reaching a broader audience and engaging with passive candidates. Establishing and maintaining an active presence on professional networking sites such as LinkedIn, Instagram, TikTok, and Facebook allows firms to showcase their expertise, culture, and career opportunities to a vast network of legal professionals. By regularly updating profiles with engaging content, firms can demonstrate thought leadership within their practice areas, positioning themselves as attractive employers within the legal community.

Sharing thought leadership content on social media platforms showcases the firm’s knowledge and expertise and provides valuable insights into its values and culture. By publishing articles, blog posts, or case studies that demonstrate the firm’s legal acumen and innovative approaches to solving complex legal challenges, firms can attract the attention of passive candidates who may not have been actively seeking job opportunities. Additionally, highlighting firm achievements, such as successful case outcomes, client testimonials, or awards and recognitions, further enhances the firm’s credibility and reputation as an employer of choice.

Active participation in relevant discussions and industry groups on social media platforms can also help firms connect with potential candidates and build relationships within the legal community. By engaging in conversations, offering insights, and providing value to others, firms can establish themselves as trusted sources of information and foster meaningful connections with legal professionals. Moreover, actively responding to inquiries and messages from potential candidates demonstrates responsiveness and accessibility, further strengthening the firm’s reputation and appeal as an employer. By harnessing social media’s power, law firms can amplify their recruiting efforts and attract top legal talent to join their team.

By integrating these strategies, law firms can effectively attract and retain top legal talent, fostering a dynamic and successful legal practice.

Payday: Terminated Employee Awarded $78,000 in EEOC Settlement

Employees returning to work following a hospitalization or illness can present legally nuanced issues, particularly if an employer is considering terminating an employee in close proximity to such a leave. A recent case settled by a company with the Equal Employment Opportunity Commission (EEOC) highlights some of the legal risks that can come into play.

According to an EEOC press release: “The EEOC charged in [a lawsuit] that, in February 2022, [a company] fired a long-tenured receptionist, despite having recognized the 78-year-old employee as one of its employees of the year in January 2022. The receptionist’s termination came shortly after a brief hospitalization. The EEOC alleged that upon the receptionist’s return to work, [the company’s] general manager asked her how long she planned to continue to work, whether she needed to work, and whether she would prefer to spend her time traveling and seeing family instead of working.

Although the receptionist expressed her desire to continue working, and despite having never previously raised substantial performance concerns to the receptionist, the general manager told the receptionist that [the company] had lost confidence in her ability to work, citing her recent hospitalization. The receptionist was fired the next day and replaced by substantially younger employees.”

The EEOC alleged that these actions violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), noting the alleged statements about “losing confidence” in the employee due to a hospitalization could be viewed as disability discrimination (the ADA defines “disability” very broadly), and the fact the employee was over the age of 40 (i.e., in the protected age group) and replaced with a younger employee could give rise to an inference of age discrimination under the ADEA.

The company elected to settle the allegations. As part of the settlement, the company agreed to pay $78,000 to the terminated employee. In addition, it entered into a two-year consent decree that also requires it to “revise its ADEA and ADA policies, post a notice in the workplace informing employees of the settlement, and train all employees and supervisors on their rights and responsibilities under both the ADEA and the ADA. Moreover, the company agreed to provide the EEOC with periodic reports regarding any future complaints of age or disability discrimination including a description of each employee’s allegations and the company’s response.”

Accordingly, this case serves as an important reminder that employee terminations should be carefully evaluated with respect to legal risks under various employment laws. Vetting such risks on the front end may mitigate pain on the back end.

Top Five Labor Law Developments for April 2024

Volkswagen employees at a Chattanooga, Tennessee, facility voted to join the United Auto Workers (UAW). The workers voted 2,628 to 985 to join the UAW. The union has been focusing its organizing efforts at foreign automakers with U.S. facilities following successes with the “Big Three” automakers last year. The UAW won record-breaking pay increases for those workers. Those successes likely increased momentum at Volkswagen. According to a UAW press release, the Volkswagen workers are the first Southern autoworkers outside the Big Three to win a union election. The UAW plans to continue its push to organize at other non-union car manufacturers across the country.
The National Labor Relations Board’s General Counsel (GC) Jennifer Abruzzo issued a memorandum instructing Board Regional Offices to seek enhanced remedies for unlawful work rules or contract terms. Memorandum GC 24-04 (Apr. 8, 2024). While the GC noted progress in achieving make-whole relief relating to back pay for employees “discharged for engaging in union or other protected concerted activity,” she stated such relief must be expanded to include all employees harmed as a result of an unlawful work rule or contract term — such as in an employment or severance agreement — “regardless of whether those employees are identified during the course of the unfair labor practice investigation.” The GC asserted that “mere rescission” of the rule or term does not provide adequate relief. Rather, discipline must be expunged or retracted to make impacted employees whole. Accordingly, Regions should seek settlements for make-whole relief where the discipline or legal enforcement action stemming from an unlawful rule or term “targets employee conduct that ‘touches the concerns animating Section 7,’ unless the employer can show that the conduct actually interfered with the employer’s operations and it was that interference, and not reliance on the unlawful rule or term, that led to the employer’s action.” Regions should seek and obtain information from employers regarding which employees were impacted with discipline or legal enforcement action..
The Board reported significant increases in union election petitions and unfair labor practice charges. According to a Board press release, union activity is still on the rise, with both unfair labor practice charges and election petitions increasing at the highest levels in decades. In the first six months of fiscal year (FY) 2024 (which began Oct. 1, 2023), the Board noted a 7% increase in unfair labor practice charges compared to the same period last year. Union election petitions increased 35%, from 1,199 in the first six months of FY2023 to 1,618 during the same period in FY2024. RM petitions by employers have particularly skyrocketed — accounting for 281 of filed petitions — due to the Board’s new framework for when an employer needs to file an RM petition after receiving a demand for union recognition..
The Department of Labor’s final rule for Occupational Safety and Health Administration (OSHA) inspections raises unionization concerns for employers. The rule aims to clarify (but it instead expands) the rights of employees to authorize third-party representatives to accompany an OSHA compliance safety and health officer during a workplace inspection. As a result, however, the rule seemingly allows a third-party union representative during an organizing campaign to report a safety concern to OSHA and then gain direct access to an employer’s workplace during the inspection that follows. This would give union organizers unprecedented access and broaden unions’ access rights to employer property. The rule is scheduled to take effect on May 31, 2024.
Law360 reported that the College Basketball Players Association filed an unfair labor practice charge against the University of Notre Dame regarding classification of college athletes. University of Notre Dame, 25-CA-340413 (Apr. 18, 2024). The charge alleges Notre Dame violated the National Labor Relations Act “by classifying college athletes as ‘student-athletes.’” The charge follows the Board GC’s 2021 memorandum, Memorandum GC 21-08, in which she stated her position that student-athletes at private universities are “employees” under the Act because they perform services for their colleges and the National Collegiate Athletic Association in return for compensation and are subject to their respective college’s control. The Board has yet to rule on the issue.

United States | Labor Department Posts Final H-2A Regulation

The U.S. Department of Labor announced a final H-2A regulation Friday, saying the rule was crafted to target the “vulnerability and abuses experienced by workers under the H-2A program that undermine fair labor standards for all farmworkers in the U.S.”

The H-2A program allows employers to hire temporary agricultural workers when there is a lack of “able, willing and qualified” U.S. workers. The new rule includes sections:

Adding new protections for worker self-advocacy.
Clarifying “for cause” termination.
Making foreign labor recruitment more transparent.
Ensuring timely wage changes for H-2A workers.
Improving transportation safety.
Preventing labor exploitation and human trafficking.
Ensuring employer accountability.

The final rule is scheduled to take effect on June 28; however, H-2A applications filed before Aug. 28, will be processed according to federal regulations as is in effect as of June 27. Applications submitted on or after Aug. 29, 2024, will be processed in accordance with the provisions of the new rule.

Additional Information: The 600-page rule is scheduled to be published in the Federal Register on Monday, April 29. A pre-publication version is available here.

Tag: Employment Law

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