Paul Burgin

Subscribe to Paul Burgin's Posts

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to issue a Final Rule banning nearly all non-compete clauses in employment agreements nationwide. As set forth in the FTC’s fact sheet, non-compete provisions are “an unfair method of competition” and therefore violate the Federal Trade Commission Act. The U.S. Chamber of Commerce, however, has already filed suit to block the Final Rule. Continue Reading FTC Bans Nearly All Non-Compete Agreements – For Now…

On December 15, 2023, the Maryland Department of Labor (“MDOL”) issued proposed regulations to implement the Maryland Economic Stabilization Act (“the Act”), which requires employers to provide notice of a mass layoff or a reduction in force in certain circumstances.  The proposed regulations are intended to provide guidance on how the MDOL plans to interpret obligations under the Act and enforce the Act, and the public is invited to provide comment on the proposed regulations before the MDOL issues final regulations. Continue Reading The Maryland Department of Labor Issues Proposed Maryland Economic Stabilization Act Regulations

On Tuesday, December 13, 2022, the National Labor Relations Board issued a wide-reaching decision expanding the remedies available to workers subjected to unfair labor practices by either unionized or non-union employers.  In Thryv, Inc., the Board stated it will add compensation “for all direct or foreseeable pecuniary harms” to its customary “make-whole” remedy, which typically has consisted of back pay along with reinstatement. The Board will consider “all direct or foreseeable pecuniary harms” in any case that calls for relief to make employees whole for unfair labor practices, not just egregious violations.  The Board, however, declined to extend make-whole relief to pain and suffering or emotional distress, as advocated by its General Counsel, or to front pay, compensation for legal fees, or heightened bargaining remedies, as sought by other interested entities through amici (i.e. “friend of the court”) briefs.
Continue Reading NLRB Expands its Make Whole Remedy to Include “Direct or Foreseeable” Financial Harms

Every now and then I read a case where from the beginning when presented with the employer’s handling of a termination, I can see the wheels coming off – so to speak.

Such was the case when I read Matchko v. Kost Tire Distributors, Inc.  The employer laid off (or was he terminated? – more on that later) its 73-year old District Manager, who had received several promotions, had never been disciplined, and had never received negative performance evaluations. He sued, alleging age discrimination under the Age Discrimination in Employment Act and state law.Continue Reading Employers – Make Sure Your Story Makes Sense! (And Is Truthful!)

Several federal agencies have recently issued additional COVID-19 guidance of interest to employers, including the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Small Business Administration (SBA). We summarize these developments below.
Continue Reading COVID-19 Agency Update: OSHA Issues Guidance on Reopening for Non-Essential Businesses; EEOC Addresses Antibody Testing and Reasonable Accommodations, Harassment and Discrimination; SBA Provides New PPP Application

The Small Business Administration (SBA), in consultation with the Department of the Treasury, updated its Frequently Asked Questions (FAQs) to address the “necessity certification” in the Paycheck Protection Program (“PPP”) loan application and to extend the repayment period of “unnecessary” PPP loans to May 18 in order to allow entities to review the new guidance. The loan application requires certification that “[c]urrent economic uncertainty makes this loan necessary to support the ongoing operations of the Applicant.”
Continue Reading PPP Borrowers Who Received Loans of Less than $2 Million Deemed to Have Made Certification in “Good Faith;” Safe Harbor Return Period Extended to May 18

This is a new entry in our occasional series on extremely bad behavior by employees. I am constantly amazed by the lack of awareness and judgment exhibited by employees in the workplace. I was baffled when I read Hennessey v. Dollar Bank, FSB, a case in which a Caucasian employee at Dollar Bank was terminated when, over the Martin Luther King, Jr. holiday weekend, he hung a brown monkey from the ceiling of a workspace utilized by African American employees.
Continue Reading Extraordinary Employee Misconduct: Monkeying Around in the Workplace!

For all you employment litigators, we just learned that you don’t have to file a Freedom of Information Act (FOIA) request with the Equal Employment Opportunity Commission (EEOC) in order to get its file on a plaintiff’s charge of discrimination! What?! Our (admittedly somewhat limited) world has been rocked!
Continue Reading FOIA Request to the EEOC – Maybe Think About Section 83 Instead?