Q: Is proof of conspiracy required to state a claim that a no-poach agreement violated antitrust laws?

A: Many recent no-poach agreement antitrust claims have risen within the franchise context, where the alleged agreement was plainly described in the operative franchise agreements. In those cases, the parties fought over what standard of review should apply to the undisputed agreement. However, franchise cases are the exception not the norm. Many, if not most, Sherman Act Section 1 claims rise or fall on the plausibility of the allegations of an agreement, often oral, between the accused firms. Recently, the Ninth Circuit affirmed a district court’s dismissal of a factually threadbare no-poach antitrust claim. In Fonseca v. Hewlett-Packard Co.,[1] a former employee of Hewlett-Packard Co. (HP), who was fired by HP and not hired by one of HP’s competitors, alleged HP had entered into an illegal no-poach agreement with the competitor. Highlighting that no-poach antitrust cases require more than simply allegations of agreements and parallel conduct, the Ninth Circuit upheld the district court’s dismissal because the allegations of a conspiracy did not make sense and were not plausible. The decision serves as a poignant reminder that despite the class action bar’s and various government enforcement agencies’ (FTC, DOJ, and states attorneys general) stated desire to use the antitrust laws to protect employees’ wages and mobility, the law requires sufficient proof of a conspiracy to get beyond the pleadings stage of litigation.

Q: What do employers need to know about recent state and local laws providing for protections for gig workers?

A: Employers and businesses are likely familiar with recent changes to rescind more employer-friendly, Trump-era FLSA regulations governing independent contractor classification and joint employment status, which we previously covered. However, employers may be less familiar with various new laws being passed or considered by cities and states that provide additional protections specific to “gig” workers — i.e., those independent contractors who perform “on-demand” services.

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.

Q: Who are the newest members of the National Labor Relations Board (NLRB), and what does their arrival mean for the future of micro-units?

A: Party control of the National Labor Relations Board recently shifted to the Democrats when the Senate approved two Biden appointees. In August, longtime union-side attorneys Gwynne Wilcox and David Prouty joined fellow Democrat Chairman Lauren McFerran and Republican appointees John Ring and Michael Kaplan on the five-member board.

Q: May employers require that employees enter into agreements as a condition of employment, mandating them to arbitrate employment-related claims?

A: Not without risk. California Assembly Bill (AB) 51 bans mandatory arbitration agreements as a condition of employment, but before the statute went into effect, a California federal district court entered an injunction effectively blocking enforcement of AB 51. On September 15, a Ninth Circuit panel reversed the district court’s injunction. The Ninth Circuit panel’s decision does not take effect immediately, however, and it is very likely that the panel’s decision will be challenged and that further legal filings will result in the district court’s injunction remaining in effect for some period of time. In the meantime, California employers that continue to use mandatory arbitration agreements face risk and uncertainty.

Q: Do work-from-home arrangements create a heightened risk that company trade secrets may be exposed?

A: Without proper precautions, in many ways, “yes.”

Since the onset of the pandemic, we have observed an increased use of external storage devices by employees to save and access work-related documents. We have heard several reasons for this, but the primary one is that employees often complain that accessing large data files remotely takes considerably more time than when they access files via the network in the company’s physical offices. Thus, employees have resorted more often to using personally owned external storage devices, such as external hard drives and thumb drives to download and access company materials.

Q. Have any court rulings upheld the denial of requests for exemption from the COVID-19 vaccine?

A. Yes. Coming on the heels of President Joe Biden’s plan to require millions of workers to receive COVID-19 vaccinations, many employers either have already implemented or have begun implementing vaccine mandates. As expected, these mandates have triggered some employee pushback, particularly from those requesting an exemption from the vaccine requirement based on a disability or religious belief. While there have not been many published decisions on this issue yet, one recent decision from the Pennsylvania Court of Common Pleas provides guidance to employers in determining whether a request for exemption from a vaccine mandate based on a religious belief must be accommodated.

Q: Are California courts concerned about the manageability of actions under the Private Attorneys General Act (PAGA)?

A: Yes, on September 9, the California Court of Appeal agreed that a PAGA action was unmanageable, and it affirmed an order granting the employer’s motion to strike and dismiss the PAGA claim. In Wesson v. Staples the Office Superstore, LLC, the court held that trial courts have the inherent authority to ensure PAGA claims will be tried fairly and efficiently. The court ruled that this authority includes the ability to strike a PAGA claim “that cannot be rendered manageable.”

Q: What do employers need to know about the Biden administration’s new vaccine mandate?

A: Following the Biden administration’s September 9 announcement, employers are brimming with questions about the forthcoming White House COVID-19 vaccination mandate plan. Must all employers mandate the vaccine? Which employees are covered? When will the requirements take effect? What steps should employers take now to prepare? These and many other questions are yet to have complete answers. With the new rules expected to impact as many as 100 million workers (and with them, a significant number of businesses), employers should begin to prepare as soon as possible. Here’s what we know and what employers need to consider.

Q: Does the ADA apply to internet-only businesses?

A: The U.S. District Court for the Eastern District of New York recently ruled that the Americans With Disabilities Act (ADA) does not apply to websites that maintain no connection to a brick-and-mortar retail location based on a strict construction of the statutory language. Currently, the circuits are split as to the standard to be met for the ADA to apply to a website, and it remains to be seen whether the Second Circuit or other federal district courts will adopt the same rationale to afford a safe harbor for web-only retailers.