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Employment Law Update

Making faces doesn’t count as retaliation

By Mike O’Brien

Not every negative consequence amounts to retaliation

In asserting a claim for retaliation, an employee must prove he or she suffered a “materially adverse action.” But that probably doesn’t include someone “making faces” at you. In Fisher v. Bilfinger Industrial Services Inc., the employee alleged that his supervisor retaliated against him by (among other things) “making faces at him.” The First Circuit Court wasn’t impressed. The court noted that “adverse employment actions” are things like “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” “Making Faces,” on the other hand, amounts to “a frivolous claim that does not implicate Title VII.” In the litigation world, we call this a “bench slap.” You can read the full decision here.

More limits on non-competes . . . eventually

On July 9, 2021, Pres. Biden signed an Executive Order that calls on the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” The Executive Order doesn’t actually change the law on non-competes. Not yet. The FTC still needs to engage in rulemaking to adopt rules restricting the use of non-compete agreements. We don’t know if the FTC will ban non-compete clauses outright, or only the “unfair use of non-compete clauses.

New independent-contractor test . . . eventually

The U.S. Department of Labor (DOL) is withdrawing the prior administration’s independent-contractor rule, which would have made it easier for businesses to classify workers as independent contractors rather than employees. The prior (never-actually-implemented) rule applied a multi-factor test looking at the “economic realities” of the relationship. The two “core factors” were (1) the nature/amount of control the worker has over the work they do for the company, and (2) the worker’s opportunity for profit or loss based on their initiative and/or investment. Although the DOL doesn’t plan to issue a new rule any time soon, President Biden has said he favors an “ABC” test similar to California’s independent-contractor rule, which generally requires three elements:

  • The worker is free from the hiring entity’s control and direction in performing the work;
  • The worker performs tasks that are outside the usual course of the hiring entity’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

For now, the DOL will continue to evaluate employment relationships under an established multifactor test.










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