Topic: LEGAL & LEGISLATIVE

Restrictive covenants, also known as non-compete agreements or post-employment restrictions, are contractual clauses that limit an employee’s ability to work for a competitor or start a competing business after leaving their current employer. These covenants have sparked considerable debate and controversy.

There are only three authentic objections – every other objection is BS. No good deed goes unpunished. In the case of PEO clients this punishment is an extended one – with no end in sight. During the height of the pandemic, thousands of small and mid-sized businesses made an ethical and noble decision: keep their employees on payroll while weathering a once-in-a-generation economic catastrophe.

As more and more states adopt paid family leave laws, the PEO industry is confronted with both challenges and opportunities as we adapt and manage these laws on behalf of our worksite employer clients. Like the Americans with Disabilities Act (ADA) or the Family Medical Leave Act of 1993 (FMLA) or the Occupational Safety and Health Act (OSH Act), and other laws that have been bestowed on us, we are in a great position to use what we have learned and accomplished over the years to handle the challenges brought on by state paid family leave laws.

Employee mobility and turnover continue to plague many employers. Naturally, this breeds concerns about what else might go out the door along with a departing employee. Implementing a strategy for protecting a PEO’s or client’s goodwill, business relationships, other employees, confidential information, and trade secrets is crucial. What an appropriate protective strategy should look like depends on numerous factors, and one PEO’s or client’s successful strategy might be disastrous or unworkable if simply duplicated elsewhere. Combined with the challenges of the ever-changing legal landscape of non-compete agreements and other restrictive covenants, many companies struggle knowing where to start.

As we begin to close out the year and look ahead to 2023, one trend we believe should garner significant attention from PEOs is data protection and privacy, and the impact of new laws.  Protecting data in this increasingly data-driven economy isn’t a new concept. However, when the new year rolls around, new legislation in California will take effect that will add a level of complexity to data protection efforts.  

When writing his theories on evolution, Professor Leon C. Megginson said, “It is not the strongest or the most intelligent who will survive, but those who can best manage change.” The global business world continues to shrink for the modern employer, and change is inevitable. New business opportunities are just an email away. Employees want remote work options, and employers wish to find talent wherever they can. As businesses expand their borders regarding services and products, and evolve their internal company makeup, international barriers still exist- laws, language, and resources. However, enterprises view these obstacles as manageable. There are avenues to expand globally, and our clients are looking for those solutions. 

Earned wage access (EWA) is the increasingly accepted term referring to an employee’s ability to access a portion of earned wages in between pay periods. EWA is not a loan, but an advance payment on funds available in the employees’ next paycheck. Financial technology advancements have allowed for significant growth in EWA solutions. However, growing input from state and federal regulatory agencies suggests that PEOs need to carefully consider which solutions most closely adhere to regulatory guidance.

As of the writing of this article, it appears that the Democrats will retain control of the Senate. The only question is whether their majority is 50-50 (with Vice President Harris breaking ties) or 51-49. That will be determined by the Georgia run-off between incumbent Sen. Raphael Warnock and challenger Herschel Walker. The House of Representatives will be controlled by the Republicans, though by a very slim margin. From a legislative perspective, with Republican’s controlling the House, President Biden’s remaining legislative agenda has little to no possibility of being enacted. Split control of Congress means that the only bills that will be enacted into law will have to be bipartisan in nature. This is another way of saying “expect gridlock” this session of Congress. 

As PEO industry professionals serving our companies and our customers, it is prudent to have an introductory knowledge about ESG, consider reasons why our industry should pay attention to ESG, identify ways you can help further ESG initiatives within your own organizations, and aid your customers in doing the same. While the aspects of ESG covered here easily merit separate articles or hour-long webinars, this article will serve as a primer and cover ESG ideas at a high level.

As more and more states legalize the use of cannabis for both medical and recreational purposes, worker advocates have increasingly pushed for corresponding employment legislation that protect employees’ right to use cannabis without the fear of adverse employment action. This is a growing area of the law that can create real compliance challenges for PEO clients on issues ranging from hiring decisions to workplace drug testing.

On September 7, 2022, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) that would update the requirements for whether a company is a joint employer under the National Labor Relations Act (NLRA). The NPRM proposes to rescind and replace the current final rule, entitled “Joint Employer Status Under the National Labor Relations Act,” that took effect on April 27, 2020.

The past few years set the stage for significant upheaval in the regulatory landscape for employers across industries and localities. COVID-19 sent certain regulatory agencies into high gear as they rushed to introduce new policies to meet the unique moment. But the pandemic wasn’t the only factor that reshaped the business landscape. Heading into 2022, concerns around equity, security, privacy, benefits access, and other larger issues took center stage, changing long-held practices at small and large businesses alike—and more of these changes are in the pipeline.

As the industry continues to grow, we will continue to expand our lobbying presence in Washington. Ramping up our efforts and resources will be necessary to meet the challenges presented to PEOs. The hiring of Mehlman has, and will continue to, helped NAPEO and the PEO industry navigate the many challenges that await.

Just as the pandemic seems to be at a manageable point and you think you can breathe easy for a bit, it’s time for you to gear up for the next wave of workplace troubles. A confluence of several events will likely lead workplaces across the country to face a wave of employment litigation at the end of 2022 and well into 2023. What forces are leading to this inevitable future, what will it look like, and what should PEOs do to prepare?

The PEO industry has made great strides in recent years in raising public awareness in large part due to NAPEO’s industry marketing efforts. While the future seems bright, it is unfortunate that still many people do not have a clear understanding of what PEOs are all about. Regrettably, many legislators and regulators fall into this category which is why industry advocacy is so very important.

The Supreme Court of the United States (SCOTUS) has certainly received much attention in recent weeks, but PEOs need to keep their eyes on the highest court in the land for an altogether different reason: The decisions we have already seen—and soon expect to see—from SCOTUS in 2022 will alter the landscape of workplace law. We’ve seen two big workplace law decisions already this year, we expect another one in the next month, and the court just accepted review of another case we will most likely see decided around the end of the year.

Among the biggest landmines for PEOs is the misclassification of co-employees. This has become increasingly pressing as the Biden administration focuses heavily on the misclassification of exempt employees, as well as the misclassification of independent contractors. This article discusses common pitfalls of classification, best practices to minimize PEO liability when misclassification occurs, and how to navigate issues when they arise.