How do office romances affect the workplace? What should employers consider when they learn of an office romance? In Episode 7 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Michelle Rice, senior corporate counsel, labor and employment at Yelp, to discuss the movie The Hating Game and best practices in dealing with office romances. Tune in for a lively discussion!

Q: Does Colorado have a law prohibiting an employer from requiring employees to sign a restrictive covenant agreement?

A: Yes. On August 10, a new Colorado law took effect that voids noncompete and customer nonsolicitation covenants with certain Colorado employees, depending on their compensation level. The new law places significant penalties upon noncompliant employers and will void any provision that violates the law.

What steps should an employer take to terminate an employee properly? What is the best way to communicate the termination decision? In Episode 6 of the Hiring to Firing Podcast, Troutman Pepper Partner Tracey Diamond and Associate Brian Ellixson sit down with Barry Thrutchley, vice president of human resources at Puratos Corporation, to discuss the movie Up In The Air and best practices in conducting terminations. Tune in to hear a lively discussion about the “right” way to deliver bad news.

In Episode 5 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Troutman Pepper Partners Ashley Hager and Lynne Wakefield to discuss the hit show The Handmaid’s Tale and lessons learned about corporate abortion policies. Tune in to hear a lively conversation about what companies can do if they want to offer abortion benefits, including travel benefits, and the risks and challenges of implementing such benefits.

Q: Can an employee opt into an FLSA collective action if the employee does not reside in the state in which the action is pending?

A: Unless an action is filed in the state in which an employer is incorporated or headquartered, the answer to this question varies by jurisdiction. In August 2021, both the Sixth Circuit (covering federal courts in Kentucky, Michigan, Ohio, and Tennessee) and the Eighth Circuit (covering federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) answered this question in the negative, requiring that opt-in plaintiffs under the Fair Labor Standards Act (FLSA) reside in the state in which an action was filed for a court to exercise personal jurisdiction. Earlier this year, the First Circuit (covering federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) reached the opposite conclusion, reasoning that disallowing nonresident opt-in plaintiffs from joining FLSA collective actions would frustrate the purposes of the collective action mechanism.

On July 26, the Third Circuit (covering federal courts in Delaware, New Jersey, and Pennsylvania) sided with the Sixth and Eighth circuits, further nudging the existing circuit split in favor of employers.

Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?

A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.

Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.

Work-life balance — does it exist? In Episode 4 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Debbie Epstein Henry, best-selling author, public speaker, consultant, and host of the Inspiration Loves Company podcast, to discuss the hit TV show Severance and lessons learned about work-life balance. Tune in to hear a lively discussion about ways companies can help workers find work-life balance to increase happiness and satisfaction, while maximizing effectiveness.

Why is confidentiality in the workplace so important? What employee information needs to be kept confidential? In Episode 3 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Richard Eskew, executive vice president, general counsel, and chief privacy officer of Accolade, Inc., to discuss the hit T.V. show Squid Game and lessons learned about confidentiality agreements and restrictive covenants. Tune in to hear a lively discussion about the balance between corporate confidentiality and employee engagement, different types of corporate confidential materials (and the methods used to maintain their secrecy), the risks of employees taking such materials, as well as what companies can do to protect themselves.

Q. Have any courts addressed companies’ obligations under the WARN Act, particularly in light of COVID-19?

A. Yes. Since COVID-19 was first confirmed in the United States more than two years ago, employers have faced many challenges, including, in some cases, the difficult decision to lay off or furlough employees. This decision has not been without legal implications. For example, depending on a variety of factors, companies that lay off employees may be required to provide written notice of the layoff under the Workers Adjustment and Retraining Notification (WARN) Act and similar state law. Specifically, the WARN Act requires employers to provide written notice to workers at least 60 calendar days ahead of “plant closings” or “mass layoffs.” The WARN Act defines a plant closing as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees (excluding part-time employees). The WARN Act defines a mass layoff as a reduction in force that does not result from a plant closing, and results in an employment loss at the single site of employment during any 30-day period for: (1) at least 50-499 employees if they represent at least 33% of the total active workforce (excluding part-time employees) or (2) 500 or more employees (excluding part-time employees).