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What I've Been Reading This Week


It has been quite some time since I have come across a good article (or case) on non competes.  However, an article from Bloomberg BNA was too good to pass up and well worth highlighting this week.  Although I would lead this post off with that note, I think the development out of West Virginia in regard to the passage of a medical marijuana law (and how it will impact employers) is a bit more timely.

As always, below are a couple articles that caught my eye this week.


Employers Take Note: West Virginia Passes Medical Marijuana Law

Last month, West Virginia became the 29th state to adopt a medical marijuana law.  As Christina Stoneburner over at Fox Rothschild writes, this will certainly impact employers in the state...but perhaps not as much as some might think.  While the law prevents employers from taking an adverse employment action against an employee simply because that employee has a medical marijuana card, no employer is required to make an accommodation for use of medical marijuana in the workplace.  As well, employees who are under the influence of medical marijuana at work can be subject to discipline.  With all that being said, I highlight this article for Christina's sage advice at the end:  Although no person will be issued a medical marijuana card until July 2019, now is a good time to review and revise workplace policies while this matter is fresh.


Non Competes Face Uncertain Future Amid Increased Scrutiny

Gayle Cinquegrani at Bloomberg BNA penned an article recently in which she points out that contrary to the Obama Administration's efforts to corral the restrictive nature of non compete agreements, there is widespread uncertainty as to how the Trump Administration will handle the matter.  While state law (as opposed to federal law) controls the agreements, the Obama Administration took steps to encourage states to reign in non competes.  With several states stepping up to the plate and limiting the scope of non competes, the question shifts to what (if anything) the Trump Administration will now do.


A Few Practical Steps to Take When Firing An Employee

Some readers might have heard that James Comey, the Director of the FBI, was fired late Tuesday by the President.  Following that development, Daniel Schwartz wrote an article that uses the way Director Comey was apparently fired (by first learning of it on television screens while giving a speech) as a way to guide employers on a few practical steps to take when firing an employee.  While Daniel's suggestions might not be applicable in every instance, they could certainly be implemented in some work environments...or at the very least, are worth consideration for those employers (or HR professionals) who deal with employee terminations.


Using Interns This Summer? Make Sure to Avoid FLSA Liability

Every summer (and oftentimes throughout the year), employers utilized interns.  Of course, many employers often walk a fine line, when using unpaid interns, in regard to whether FLSA liability attaches.  Joseph Leonoro reminds employers about the Department of Labor's six party test for analyzing whether an intern is actually an employee (and therefore entitled to compensation under the FLSA) and offers a few suggestions on how employers can take steps to ensure an intern is actually treated as an intern.  Insightful read for those who have interns in the workplace.


Additional Extension Granted to Department of Labor on Overtime Regulation Appeal

Recently, the Fifth Circuit Court of Appeals granted the Department of Labor's request for another extension to allow the Department additional time to consider if it wants to continue its appeal of an injunction granted last year that halted the implementation of the Obama Administration's proposed changes to the overtime exemption threshold.  With the confirmation of a new Labor Secretary, Alexander Acosta, having only recently occurred, the Department of Labor requested additional time to consider if an appeal is the direction the Department now wants to go (which had initially been pursued prior to President Trump's inauguration).  The question still remains as to whether Secretary Acosta would support this proposed overtime regulation (and therefore continue the appeal) or drop the Department of Labor's appeal entirely and go back to the drawing board (as some suspect he would propose a less burdensome increase in the overtime exemption threshold).  Currently, the Department of Labor has until June 30, 2017 to file its reply brief to the Fifth Circuit Court of Appeals.

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