• Obama Administration Urges States to Reform Non-Compete Laws
  The Obama Administration has urged states to amend laws governing non-compete agreements to narrow the circumstances under which they can be obtained and enforced. Proposed limits include: (1) exempting low-wage workers or employees who do not have access to trade secrets; (2) limiting enforcement to agreements proposed before a job offer or promotion is accepted; and (3) barring enforcement when the company terminates the employment relationship. The Administration asserts these changes would lead to a more competitive labor market and increased wages. It remains to be seen whether, and to what extent, states consider and adopt these proposals.

• Withdrawal Liability: An Unpleasant Surprise
  A number of clients have been unpleasantly surprised by “withdrawal liability” asserted against them upon ceasing to contribute to a multi-employer (union) pension plan under a collective bargaining agreement. We’ve seen a number of cases where the liability is many times the sum of the hourly contributions ever made to the plan. Many multi-employer plans continue to struggle financially and the Pension Benefit Guaranty Corporation’s (PBGC) guarantee program may become insolvent within ten years. Congress is aware of the problem, but there are no easy solutions. 
• The DOL’s Fiduciary Rule Marches On
  The Department of Labor (DOL) just issued its first set of FAQs under its “fiduciary rule,” which requires that many service providers that have not previously accepted fiduciary responsibility now must do so. Providers are reacting ahead of the rule’s April 2017 effective date.  Some providers have announced that they will no longer pay their brokers and employees on a commission basis, and others are sending out contract amendments that purport to bring them into compliance with the DOL’s rule. Any such contract changes require careful review.
• DOL’s FMLA Information Gathering Could Signal Changes
  The DOL is seeking public feedback on two proposed data collection initiatives regarding employee and employer perspectives on the FMLA — both of which would occur sometime in 2017-18. The first would survey employees on use of leave, need for leave and their experience with FMLA-eligible leave, while the second would survey employers on employee use of leave and their experience managing FMLA leaves. While it did not specifically come out and say so, the DOL could be planning to use the data it gathers as a basis to revise the FMLA regulations sometime in the future.