As ES Law previously reported, the Federal Trade Commission issued a rule that would have taken effect on September 4, 2024 banning general non-competes nationwide. A federal court in Texas has now invalidated that rule. The court’s ruling applies nationwide; thus, the rule will not take effect. Many of our employer clients had been working to ensure their non-compete agreements would be compliant. We encourage employers to reach out to legal counsel to understand the full ramifications of this legal ruling and how the future landscape of this area is being shaped.
Erickson Sederstrom Welcomes Stephanie Heinke as Firm Administrator
We welcome Stephanie Heinke to the Erickson Sederstrom law firm team. Stephanie is a dedicated and motivated legal professional with a wealth of experience from her 21-year tenure with the United States Air Force.
Stephanie's unique qualifications stem from her service as a U.S. Air Force Judge Advocate General's Corps paralegal. Her extensive experience in Military Justice, Administrative Law, Claims, Legal Assistance, and Legal Operations Management, coupled with her leadership as a Master Sergeant, make her a standout addition to our team.
As a Legal Operations Manager, Stephanie directed operations for large teams, managed compliance programs, oversaw budgets, and implemented training initiatives. Her expertise in audit and compliance, budget management, and team leadership will be invaluable to our firm.
Stephanie's dedication to her profession and her proven experience as an Air Force Veteran make her a valuable addition to our team. We are excited about the contributions she will bring to Erickson Sederstrom. Please join us in giving Stephanie Heinke a warm welcome!
Nebraska Supreme Court Ruling on COVID-19 Workers' Compensation Claim
In the recent decision, Thiele v. Select Medical Corp., the Nebraska Supreme Court overturned the denial of a woman's workers' compensation claim for a COVID-19 infection.
Christine Thiele contracted COVID-19 in April 2020 while working as a nurse liaison at a critical care recovery hospital in Omaha. Thiele filed a Petition in the Nebraska Workers' Compensation Court alleging that COVID-19 is an occupational disease caused by her work and that she is entitled to benefits as a result of her exposure.
"Occupational disease" is defined in Section 48-151(3) as "disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and excludes all ordinary diseases of life to which the general public is exposed."
Initially, the Nebraska Workers Compensation Board denied her claim, ruling that COVID-19 was not to be considered an occupational disease. However, Thiel appealed, and the Nebraska Supreme Court reversed the dismissal of her case, finding that COVID-19 was still rare enough to be considered a particular risk for healthcare workers at the time of symptoms' contraction.
The Court's decision was split 4-3, with three justices endorsing one opinion considered the lead opinion; the result was that the trial judge should not have dismissed Thiel's claim and allowed the case to proceed to trial. Three justices dissented with the reasoning and result of the lead opinion. Ultimately, this decision does not resolve the ongoing debate about whether COVID-19 can be considered an occupational disease under the Nebraska Workers' Compensation Act.
The lead opinion introduced a new legal principle. It argued that when determining whether an illness is an 'ordinary disease of life,' the focus should be on the period of exposure prior to contraction or onset of symptoms, rather than the circumstances at the time of the hearing. In Thiel's case, this meant that the trial judge should have considered when she contracted the virus in 2020, a time when healthcare workers faced a heightened risk of exposure, rather than when the Petition was filed in 2022.
On the other hand, the three justices who dissented emphasized that COVID-19 has always spread in the same way; any person-to-person interaction carries the risk of contracting COVID-19 and found that COVID-19 cannot be considered anything other than an ordinary disease of life, regardless of the time period.
Thiel's case, while not providing binding authority or clarity on whether COVID-19 should be considered an occupational disease, does offer a starting point for future cases. The Court's opinion suggests that when determining if an illness, specifically COVID-19, is an ordinary disease of life, one must focus on the period of exposure. This interpretation could potentially influence future workers' compensation claims related to COVID-19.
Compliance Update for Employers and Employees – Non-Competes under the Federal Trade Commission
Yesterday, the FTC issued a significant rule regarding non-compete agreements. This is a nationally applicable rule.
In a nutshell, the FTC's rule aims to bring more transparency and fairness to non-compete agreements, ensuring they're used appropriately and not to stifle competition or restrict an employee's ability to change jobs. While this is a new rule nationally, any stricter rules under state law will still apply to those under such a state's jurisdiction.
Here are the basics to know about the new federal rule:
Non-competes must be tailored to protect legitimate business interests.
They should be disclosed before a job offer is accepted.
Employees should have ample time to review and seek legal advice.
Unreasonable restrictions could face scrutiny.
Employers should review past non-compete agreements and may need to notify employees of the new rule's effect on them.
The rule goes into effect in 120 days. We expect legal challenges to be filed in federal courts to invalidate or limit this new rule, so stay tuned!
Nebraska employers who are abiding by Nebraska legal requirements for their non-compete and non-solicitation agreements are likely already compliant with this new federal rule. Nebraska has long required that non-competes be narrowly focused, permitting employers to prohibit from soliciting customers, clients, vendors, and employees for a limited period after their departure. Nebraska courts will not enforce generalized non-competes that amount to industry bans. Of course, some nuances could affect a particular employer or employee differently, and legal advice should always be sought.
The FTC's press release is available here: FTC Announces Rule Banning Non-competes | Federal Trade Commission.
At ES Law, we're committed to helping you stay compliant and navigate these changes smoothly. Contact us today to ensure your non-compete agreements align with the latest regulations.
Nebraska Paid Sick Leave Initiative: What Employers Need to Know
As the 2024 elections approach, several ballot initiatives are gaining momentum in Nebraska, with one particular initiative standing out - the Paid Sick Leave for Nebraskans. This initiative, if passed by the majority of Nebraska voters in November 2024, would significantly impact employers across the state. Here's what employers need to know to prepare for this potential change.
Key Provisions of the Paid Sick Leave Initiative:
Accrual of Paid Sick Leave: Under this initiative, all Nebraska businesses would be required to offer paid sick leave to employees. Employees would earn one hour of paid sick leave for every 30 hours worked.
Carryover of Unused Leave: Employees may carry over unused paid sick leave to the following year, but it should not exceed the maximum number of hours specified in the policy.
Protection from Retaliation: The initiative would put into law the ability for employees to earn and use paid sick days without retaliation.
Effective Date: If passed, paid sick leave would go into effect on October 1, 2025.
Exemptions: This policy would not interfere with collective bargaining agreements, contracts, or policies that provide employees with more generous paid sick time. It also does not apply to federal, state, or county employees.
Who Benefits:
Paid sick leave is aimed at benefiting working families and businesses alike. It ensures that employees do not have to choose between their paycheck and their family's health. It applies to full-time, part-time, and temporary employees. Businesses can benefit because paid sick leave may help attract a qualified workforce to the many open jobs across Nebraska, including appealing to workers from other states.
Leave Entitlements:
Under the proposal, the amount of paid sick leave employees would earn varies depending on the size of the employer:
For employers with fewer than 20 employees, workers may earn up to five days of paid sick leave per year.
For employers with 20 or more employees, workers may earn up to seven days of paid sick leave per year.
Funding and Support:
The Paid Sick Leave for Nebraskans initiative has gained significant funding support, raising more than $1.7 million since its launch in July. The Sixteen Thirty Fund, a national organization supporting social change goals, has contributed over $1.6 million to the campaign. Local groups such as the Nebraska Appleseed Action Fund, the Women's Fund of Omaha, the Civic Engagement Table, the ACLU of Nebraska Foundation, and Raise the Wage Nebraska have also supported the campaign.
Implications for Employers:
Employers in Nebraska should be aware of the potential changes brought about by the Paid Sick Leave for Nebraskans initiative. If the initiative passes, businesses will need to adjust their policies and practices to comply with the new paid sick leave requirements. This may include implementing a tracking system for accrued leave, ensuring compliance with carryover limits, and updating company policies to prevent retaliation against employees for using paid sick leave.
In conclusion, the Paid Sick Leave for Nebraskans initiative has the potential to impact employers significantly. With fundraising support and growing public interest, this initiative could change the landscape of paid leave in the state. Employers should stay informed about the progress of this initiative and be prepared to adapt their policies accordingly if it becomes law in Nebraska.
How Businesses Can Prepare for the Pregnant Workers Fairness Act
A new federal law known as the Pregnancy Workers Fairness Act goes into effect June 27, 2023. The Act builds upon existing laws such as the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act. Its primary objective is to protect pregnant workers from discrimination, ensure reasonable accommodations, and promote a healthy and supportive work environment during pregnancy and childbirth.
Severance Agreements, Confidentiality, and Promises Not to Disparage Under NLRB Scrutiny
Employers crafting severance agreements or employees considering entering into such agreements should think carefully about rights they may give up or obligations they may take on through the agreements. Consulting with an experienced attorney to draft or review any proposed agreement is highly advisable.
