Several States Considering Restrictions on Non-Compete Agreements

Several States Considering Restrictions on Non-Compete Agreements

In 2016, Massachusetts state lawmakers failed to reach a compromise over a bill that would strictly limit companies’ ability to enforce non-compete clauses in employees’ contracts, slowing the momentum of a trend among states to restrict the use of these agreements in roles where they were unnecessary or would overly limit employees’ future career prospects. The bill was widely expected to be revisited in the state’s next legislative session; sure enough, it has, and members of the Massachusetts House and Senate are now close to reaching a deal on a bill that satisfies both houses’ concerns, Jon Chesto reports at the Boston Globe:

There are still some issues to be worked out between House and Senate negotiators. The legislation will most likely include noncontroversial elements such as bans on using noncompetes for lower-paid hourly workers, such as camp counselors and sub-shop employees. But the two sides have yet to agree on how long noncompete contracts can remain in force. In 2016, the House leadership supported up to 12 months, while the Senate backed a three-month limit. Another potential sticking point: the wording for how departing employees should receive payments, known as “garden leave,” while their noncompetes are in effect.

Advocates for curbing the use of non-competes in Massachusetts say it harms the state’s ability to leverage its highly educated workforce and become a full-fledged tech startup hub like California, which is one of the few states where the use of such clauses is almost always prohibited and where courts generally have refused to recognize them. Most other states have laws that limit the use of non-competes to the protection of trade secrets and other confidential information, but impose a varied range of standards for determining whether an agreement is enforceable.

Lawmakers in three other states—New Hampshire, Pennsylvania, and Vermont—are also considering new restrictions this year, Jackson Lewis attorneys Daniel P. Schwarz, Martha Van Oot, Erik J. Winton and Colin A. Thakkar write at SHRM:

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How the Workplace Will Change in 2018

How the Workplace Will Change in 2018

Over the past few years, we have witnessed a marked acceleration in the pace of change in the workplace. Each year brings with it new innovations, ideas, and passing fads, as well as social, political, and economic events that affect employers all across the world. 2017 was no exception: Tight labor markets driving competition for talent, concerns over automation and displacement amid the growing embrace of new technologies, the first year of the Trump administration, and the rise of the #MeToo movement were just a few of the many events and trends that impacted the working world last year. In 2018, we anticipate that some of these developments will continue to reverberate, while new challenges and opportunities will arrive.

Here are some of the major developments that employers can expect to see this year, in the US and around the world:

The Sexual Harassment Reckoning Will Only Grow

In the second half of 2017, revelations of sexual harassment, misconduct, and assault poured out of Silicon Valley and Hollywood, sparking a long-overdue conversation about the treatment of women and the harboring of known abusers in these male-dominated industries, as well as in politics, media, and other fields. Powerful men, from Hollywood moguls to tech CEOs to members of the US Congress, were toppled by multiple allegations of sexual misconduct ranging from inappropriate workplace behavior to outright assault. Organizations in all sectors are facing unprecedented public attention to their sexual harassment policies, how diligently they enforce them, and whether they uphold an inclusive and respectful work environment. If the reckoning didn’t come to your industry in the past few months, it likely will this year. Business leaders in corporate America and around the world will have their past and present behavior scrutinized, and some will be exposed as abusers and face strong public and investor pressure to step down. Addressing toxic workplace cultures that enable sexual harassment will become an issue of even greater concern for directors and HR leaders. Companies can ill afford to close their eyes and hope for this problem to go away on its own; time really is up.

The Private Sector Will Lead the Way on Raising the Minimum Wage

Congress is unlikely to take action to increase the federal minimum wage in 2018. Some states will raise their minimum wages, as will some cities, while other states will take action to preempt local hikes. Meanwhile, companies will take it upon themselves to increase their pay floors in order to attract and retain talent in a tight labor market. As large employers of low-wage hourly workers like Walmart and Target increase their own minimum wages, other companies will need to follow suit to remain competitive.

Technology, Social Media, and Journalists Will Continue to Bring Transparency into Company Culture

Companies’ cultures and employer brands are in the spotlight now more than ever before. The decisions, approaches, policies, and beliefs through which companies manage their employees will play a dramatically larger role in how consumers and investors (not just candidates and employees) view the company. In 2018, this will put pressure on companies to manage their employer brands through HR as aggressively as they protect their consumer brands through PR.

CEOs Will Be Forced to Take Stands on Political And Social Issues

Throughout 2018, the political polarization and dysfunction that has prevailed in Washington, D.C. recently will almost certainly persist, while gender equality, diversity, immigration, LGBT rights, and other issues with major workplace implications will remain hot-button topics. While some CEOs have already found their voices when it comes to responding to the news of the day, others will feel pressure this year from customers, employees, and investors alike to be more vocal about their beliefs and to back them up with concrete actions within their companies.

AI Will Play a Bigger Role In Hiring, Raising the Risk of Algorithmic Bias

The use of AI and algorithms in hiring decisions has already grown dramatically. In 2018, companies will continue to adopt these technologies, but many will also begin to recognize the danger of algorithmic bias. While these automated solutions have shown promise in terms of improving quality, efficiency, and even fairness in the recruiting process, they also run the risk of harming diversity in the workforce by replicating biases that already exist within the company.

Adoption of Wearables in the Workplace Will Increase

In 2017, 3 percent of companies introduced wearable technology in the workplace, giving employees smart badges to monitor their behavior in order to track productivity and identify inefficiencies in the use of office space. In 2018, as more companies adopt technology that can track the location and behavioral data of employees, companies will begin to use this data to redesign workspaces, schedules, and workflows to maximize employee productivity. As these technologies become more mainstream, employers may not have to worry as much as they think about employees resisting their implementation, but should think carefully about how much actionable insight they are gaining by monitoring their employees.

More Employees Will Change Jobs Due to a Lack of Respect

While compensation continues to be the top driver of attraction for candidates globally, respect was the the fourth most important driver in our Global Talent Monitor Report for Q3 2017. In 2018, the labor market will continue to remain tight and employees will feel that they have enough control to speak openly about the lack of respect or appreciation. If companies aren’t able to provide increased compensation or opportunities for growth, they should look at ways to improve employees’ sense of respect in order to retain talent.

Business Leaders Press Congress on DACA After Judge Blocks Trump’s Order

Business Leaders Press Congress on DACA After Judge Blocks Trump’s Order

Late on Tuesday, a federal judge in California issued an injunction blocking US President Donald Trump’s order winding down the Deferred Action for Childhood Arrivals program put in place by his predecessor Barack Obama to protect undocumented immigrants who were brought into the US as children, CNN reported on Wednesday:

Judge William Alsup also said the administration must resume receiving DACA renewal applications. But the ruling is limited — the administration does not need to process applications for those who have never before received DACA protections, he said. …

The ruling came in a challenge to the Department of Homeland Security brought by the University of California and others. In his 49-page ruling, Alsup said “plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious” and must be set aside under the federal Administrative Procedures Act. The judge said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”

The DACA program, which is based on the principle of prosecutorial discretion, was enacted in 2012 and has benefited some 800,000 individuals under 31 who arrived in the country before the age of 16, have lived in the US continuously since 2007, and are in school or have graduated. In total, up to 1.1 million so-called “dreamers” were eligible for the program, though not all who were eligible applied—potentially out of fear of “outing” themselves to the federal government as undocumented.

Trump, who campaigned on a pledge to drastically reduce legal and illegal immigration and to hasten the deportation of undocumented immigrants, ordered the DACA program canceled last September, giving Congress until March to find a legislative solution or the administration would begin phasing out its protections. Talks over a deal have stalled over disagreements between Democrats and Republicans over whether to pair it with funding for Trump’s proposed wall along the US-Mexico border. The Trump administration intends to fight Alsup’s injunction, but the court battle could drag on for years. The upshot, the Washington Post explains, is that DACA beneficiaries remain uncertain of their future status unless and until Congress acts.

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UK Legislator Proposes Ban on Zero-Hours Contracts

UK Legislator Proposes Ban on Zero-Hours Contracts

A member of the Scottish National Party plans to urge his fellow MPs to support a bill in the UK parliament that would ban the use of zero-hours contracts, Emily Burt reports at People Management:

Chris Stephens, MP for Glasgow South West, has urged fellow parliamentarians to back his Workers (Definition and Rights) Bill 2017-19, which will receive its second reading in the House of Commons on 19 January. The SNP MP said his bill would ban zero-hours contracts, boost employment rights for gig economy workers and protect younger workers in an increasingly uncertain economy. …

Under the draft bill, a worker could only be employed on zero-hours terms where there was a specific agreement with their trade union. This goes further than recommendations made in Matthew Taylor’s Good Work: The Taylor Review of Modern Working Practices, made earlier this year, which held back from endorsing a ban on zero-hours contracts, which it said would damage both employers and workers.

Instead, the Taylor Review had suggested introducing a higher minimum wage for employees on zero-hours and other flexible contracts. Stephens’s bill targets the issue of income stability among the UK workforce, but also comes in response to anxieties over the future of employment law in the UK after Brexit:

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PayScale Study Highlights Engagement Value of Appreciation, Company Outlook

PayScale Study Highlights Engagement Value of Appreciation, Company Outlook

Chris Martin, Director of Research at PayScale, showcases the findings of a recent study his company conducted based on survey responses from more than 500,000 US employees. The study sought to gauge the impact of various criteria on employee engagement and intent to stay in their current jobs:

Two variables stood out from the pack for both outcomes: whether an employee feels appreciated at work, and whether they feel their organization has a bright future. Employees who feel unappreciated or who think their organization isn’t going anywhere are less likely to feel satisfied at work and more likely to plan on seeking a new job in the next six months.

Although they don’t align precisely, PayScale’s findings here underline a key insight from our Global Talent Monitor at CEB, now Gartner. This quarterly report provides workforce insights on global and country-level changes about what attracts, engages, and retains employees, based on data from more than 22,000 employees in over 40 countries. (CEB Corporate Leadership Council members can peruse the full set of insights from Global Talent Monitor.)

What our latest global data show is that while compensation is the most common driver of talent attraction both worldwide and in the US, other factors are nearly as important to employees in deciding whether to take a job, including stability (related to the future prospects of the organization) and respect. Indeed, respect has been growing in importance as a talent attraction driver over time, especially in the US, Southeast Asia, and India. When it comes to drivers of attrition (what compels employees to quit), compensation is outranked both globally and in the US by future career opportunity, while people management problems and a lack of opportunities for development are also common factors in employee attrition.

The other interesting finding Martin highlights from PayScale’s study concerns employees’ perceptions of pay practices:

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Hollywood Women to Sexual Harassers: ‘Time’s Up’

Hollywood Women to Sexual Harassers: ‘Time’s Up’

On January 1, a group of over 300 women in the US entertainment business, including prominent actors like America Ferrera, Eva Longoria, Natalie Portman, and Reese Witherspoon, announced the launch of a massive, nationwide initiative to address sexual harassment, misconduct, and assault in their own workplace as well as other industries. Their effort, entitled Time’s Up, is a leaderless, volunteer-powered campaign to put pressure on employers to take action against harassment, connect victims to legal resources, and protect them from retaliation for speaking out about their experiences of harassment and abuse. As the New York Times’s Cara Buckley reported when the initiative was launched, Time’s Up is starting out with four key components:

  • A legal defense fund, backed by $13 million in donations, to help less privileged women — like janitors, nurses and workers at farms, factories, restaurants and hotels — protect themselves from sexual misconduct and the fallout from reporting it.
  • Legislation to penalize companies that tolerate persistent harassment, and to discourage the use of nondisclosure agreements to silence victims.
  • A drive to reach gender parity at studios and talent agencies that has already begun making headway.
  • And a request that women walking the red carpet at the Golden Globes speak out and raise awareness by wearing black.

Central to the endeavor is a focus not only on the rarefied world of these Hollywood stars, but also—especially—on women who lack their power, privilege, and wealth, such as domestic and agricultural workers, who suffer extensively from sexual harassment and violence in the workplace but often lack the resources to fight back. The Time’s Up legal defense fund, which has by now attracted over $16 million and counting in crowdfunded donations, will be housed at and administrated by the National Women’s Law Center and led by Tina Tchen, former chief of staff to first lady Michelle Obama, and Roberta Kaplan, who successfully argued before the Supreme Court to overturn the Defense of Marriage Act.

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Workplace Overdose Deaths Continue to Rise, in Grim Reminder of Opioid Crisis

Workplace Overdose Deaths Continue to Rise, in Grim Reminder of Opioid Crisis

Drug use among US employees has been increasing in recent years, with marijuana accounting for about half of the American workforce’s illegal drug habits. With a tight talent market, greater mainstream acceptance, and state-level legalization of marijuana, some employers have begun relaxing their drug testing policies, abandoning the zero-tolerance approach in favor of case-by-case judgments. The biggest substance abuse problems in the US, however, are not illegal drugs but rather alcohol and prescription opioid painkillers. Opioid addiction, as well as the underlying physical health issues that lead to these drugs being prescribed, has been persuasively identified as a significant driver of the decline in American workforce participation rates, particularly among men in what ought to be their prime working years.

Even more disconcerting is that the number of US employees dying from drug- or alcohol-related causes while at work has also risen sharply in recent years. While in absolute terms, those numbers remain very small, the rapid rate of increase is cause for concern, Gillian B. White warned at the Atlantic last month:

Last year alone, the number of workers who died at work because of drug- or alcohol-abuse-related incidents increased by more than 30 percent, to more than 200. While that number may seem small, it’s evidence of how rapidly the problem is growing—less than five years ago, fewer than 70 people died from overdoses at work. Since 2012, the number of people dying from drug or alcohol related causes while on the job has been growing by at least 25 percent each year, according to the Bureau of Labor Statistics. …

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