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States Continue to Revise Non-Compete Laws

Following the “Call to Action”[1] that was issued by the White House and the U.S. Department of Treasury in October, 2016 concerning what the Obama Administration perceived as overuse of non-compete agreements, a number of states have revised their laws regarding non-competes.

In 2016, prior to the “Call to Action,” Idaho passed a law that established a presumption that an employee’s breach of a non-compete agreement caused irreparable harm to the employer.  However, the legislature reconsidered that move.  In July of this year, the Idaho legislature repealed the presumption, placing the burden back on the employer to prove that it suffered harm to a legitimate business interest.

In 2016, Utah imposed numerous requirements and restrictions on non-compete agreements.  Rather than the previous common law requirement that the agreement only restrict a former employee for a reasonable time, the new law voids any agreement that restricts a former employee for longer than one year.  Now, two years later, Utah continues to reassess its non-compete law.  Earlier this year, the state enacted a law prohibiting non-competes for employees working in the broadcasting field and making less than $913 per week or $47,476 per year, aside from a few exceptions.

Massachusetts has also taken action.  Earlier this month, Massachusetts enacted a law bill regulating non-competes, which will go into effect on October 1, 2018. The new law requires that certain criteria be met or the agreement will not be enforced.  The agreement must be in writing, must be signed by both

Kansas City Votes to “Ban the Box”

February 9, 2018

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On February 1, 2018, Kansas City, Missouri joined the ranks of more than 150 cities and counties to enact a “ban the box” ordinance, aimed at equalizing the chances to gain employment by those previously convicted of a crime.  Effective June 9, 2018, the ordinance expands Kansas City’s 2013 ordinance that applied only to city employees.  The new ordinance, “Criminal Records in Employment,” found at Section 38-104, applies to most employers employing six or more in Kansas City.  It excludes employers that are prohibited by a local, state, or federal law or regulation from considering applicants with a criminal record.

Under the ordinance, employers are banned from inquiring into an applicant’s criminal history until after the applicant has been interviewed, i.e., employers can no longer ask about criminal convictions on an employment application.  Criminal history is defined in the ordinance to include felony and misdemeanor convictions, guilty and no contest pleas, and records of arrest.  After an applicant is interviewed and considered qualified for the position, but before an offer is extended, an employer may ask about his or her criminal history.  However, the ordinance prohibits an employer from basing a hiring decision on this factor alone.

The Kansas City, Missouri Human Relations Department (the “Department”) will enforce the ordinance.  If the Department finds a violation occurred and conciliation is not reached, the Department can prosecute the employer in municipal court.  Penalties for violating the ordinance include a loss of business license for up to 30 days on the first

Some States and Municipalities Begin the Ban on Salary History Inquiries

September 19, 2017

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Many employers base an employee’s pay on his or her past salary.  Applicants are typically asked, either on the application or during an interview, how much they made in their previous job(s).  Critics of this practice believe using salary history to set current salary is discriminatory and prohibits women and minorities, frequently paid less than their white male counterparts, from overcoming pay disparity.

In April 2017, in Rizo v. Yovino, the 9th Circuit Court of Appeals held that salary history is a valid justification for paying a female employee less than her male counterpart, so long as the employer’s use of the salary history was reasonable and accomplished a business purpose.  Several states and municipalities, perhaps in response to Rizo, have enacted and/or proposed legislation prohibiting the practice of asking applicants about their salary history.  Other states and municipalities previously banned this practice.

In June 2017, both Delaware and Oregon passed statutes prohibiting an employer from asking an applicant his or her past salary, either on the application or during the interview.  They join Massachusetts, New York City, San Francisco, and Puerto Rico, with similar bans.  California, Mississippi, Pennsylvania, and New Jersey have also proposed similar bans.  Philadelphia passed a pay history ban, which its Chamber of Commerce sought to enjoin on the grounds that the ban would cause employers to struggle to establish wages and attract top talent.  The Eastern District of Pennsylvania dismissed the Chamber’s injunction for lack of standing.

As the equal pay debate continues, the states

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