On July 2nd, OSHA proposed a heat injuries and illness rule that would establish a nationwide standard for addressing the hazards of heat in the workplace. The rule, if finalized, will require most employers to monitor heat in the workplace, develop heat illness prevention plans, and take measures to protect workers from heat hazards. The rule will apply to most employers and covers both indoor and outdoor work. An outline of the rule follows:
Who is Covered?
The proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors where OSHA has jurisdiction.
Who isn’t Covered?
OSHA is proposing to exclude from the rule: Short duration employee exposures to heat, emergency response activities, work at indoor sites kept below 80°F, telework, and indoor sedentary work activities.
What Does the Rule Require?
Protections Based on Heat Index. The OSHA rule adopts two heat index thresholds that trigger employers to take preventative measures to protect workers from heat. One, at 80 degrees Fahrenheit, would require employers to:
Provide cool drinking water;
Provide break areas with cooling measures;
Implement indoor work area controls;
Implement acclimatization plans for new and returning workers. This involves gradually increasing workloads and exposure time to build up a worker's tolerance to heat; and
Provide paid rest breaks if needed to prevent overheating.
More protections would kick in at 90 degrees, including:
Monitoring for signs of heat illness;
Mandatory 15-minute rest breaks every two hours;
Monitoring employees working alone every few hours to observe for heat related illness;
Issuing a hazard alert, reminding their workers of the importance of staying hydrated; and
Placing warning signs at indoor work areas with ambient temperatures that regularly exceed 120 degrees Fahrenheit.
Heat Illness Prevention Plan. Employers will be required under the rule to develop and implement a written Heat Injury Illness and Prevention Plan. Employers with fewer than 10 employees may communicate the plan verbally to workers, while employers with more than 10 employees will need to have a written plan. The plan must be made available to each employee performing work at the site and in languages all employees and supervisors understand. The rule requires employers to seek input from nonmanagerial employees and their representatives when developing the plan. Employers will need to evaluate their heat safety plan annually.
Heat Emergency Medical Response. Employers will also need a Heat Emergency and Response Plan to ensure supervisors and workers are trained in first aid and contacting emergency services to respond to heat-related emergencies.
Mandatory Training. Employers will need to provide initial and annual refresher training for supervisors, heat safety coordinators, and employees, as well as supplemental training after changes in exposure to heat hazards, policies and procedures, or the occurrence of a heat injury or illness.
Recordkeeping and Reporting. The OSHA rule requires employers to maintain written or electronic records of indoor monitoring data for a minimum of six months, maintain detailed records of heat related incidents, and conduct regular audits to ensure compliance with the new rule.
OSHA published the proposed rule unofficially. It will soon be formally published in the Federal Register and will be open for public comment for 120 days thereafter. OSHA officials will then need to review the comments and hold at least one public hearing before publishing a final rule. This will take several months, so a final rule should be expected in 2025.
Federal Court Partially Blocks FTC Non-Compete Ban, Connecticut Gives Non-Competes a Boost
Judicial treatment of non-compete agreements was a mixed bag for employers last week, with a federal court in Texas delaying the ban on non-competes for only a handful of employers and the Connecticut Supreme Court opening a door to non-competes once thought closed.
Narrow Delay of FTC Rule
On July 3rd, a federal court preliminarily delayed the FTC’s ban on non-compete agreements from taking effect on September 4th for a handful of employers. The ruling stems from a lawsuit filed by a Texas tax firm seeking to block the Federal Trade Commission’s final rule outlawing non-compete agreements throughout the United States. The challenge was filed by Ryan LLC, a global tax services firm, in the United States District Court for the Northern District of Texas. Several associations, including the U.S. Chamber of Commerce, joined the suit.
While the Plaintiffs sought to have the rule suspended nationwide, the court limited its ruling only to the plaintiffs named in the lawsuit. Accordingly, the decision does not change the obligation of other companies across the U.S. to comply with the FTC Final Rule by September 4, 2024.
While the July 3rd order was preliminary, and limited to handful of companies, the court indicated it intends to rule on the ultimate merits of the case on or before August 30, 2024.
It is possible the court will issue a judgment that declares the FTC rule invalid. If this occurs, the FTC will not be able to enforce its rule unless that decision is reversed on appeal.
Plaintiffs in another case challenging the rule will have an opportunity to argue for a nationwide injunction today (July 10th) in a hearing in federal court in Pennsylvania at noon. The court in that case indicated it will issue a decision after the motion to suspend the FTC rule is argued by July 23rd.
Connecticut Supreme Court Gives Non-Competes a Boost
On July 2nd, the Connecticut Supreme Court ruled not firing a current at-will employee in exchange for his signing a non-compete can constitute sufficient “consideration” to uphold the agreement. The legal term, “consideration”, is a basic principle of contract law that holds that an agreement is unenforceable if it is entered into without the exchange of something of value.
In Connecticut, it is generally accepted that when non-competes are entered into at the start of employment, the consideration is the offer of the job itself. However, Connecticut courts have been divided when it comes to individuals already employed. Some courts have held not being fired in exchange for signing a non-compete is adequate consideration, while others have held “mere” continued employment is not of sufficient value to bind the parties.
In the case overturned by the Connecticut Supreme Court, Dur-a-Flex, Inc. v. Samet Dy, the lower court ruled that continued employment can never constitute sufficient consideration.
Dur-A-Flex, a manufacturer of commercial flooring systems and polymer component materials, hired the defendant, Samet Dy, as a research chemist. During the course of his employment, Dy signed a non-compete agreeing not to work with a competitor for two years after the end of his employment. Dy eventually resigned.
Unbeknownst to Dur-a-Flex, prior to his resignation, Dy had incorporated a business and constructed a laboratory in his basement where he developed formulas for flooring systems. He then contacted ECI, a flooring installation company that was a longtime customer of Dur-A-Flex. Dy agreed to provide ECI discounts on future purchases below Dur-a-Flex’s prices, in exchange for ECI using his sample flooring products in the field.
After learning of Dy’s activities, Dur-a-Flex filed suit for Dy’s breaching his non-compete, among other claims. After the superior court ruled the non-compete unenforceable, the case was appealed, eventually up to the Supreme Court.
The Connecticut Supreme Court, reaffirmed a case from 90 years earlier which held “a promise of indefinite, continued employment for an at-will employee in exchange for the employee’s promise not to compete constitutes adequate consideration to form an enforceable agreement.”
On that basis, the Supreme Court concluded the trial court incorrectly determined that continued employment can never be consideration for a noncompete agreement.
While the court clarified that continued employment can be sufficient consideration, it remains to be seen under what circumstances it will constitute sufficient consideration. The Supreme Court ordered the lower court in Dur-a-Flex to decide whether there was sufficient consideration to enforce the non-compete in light of its ruling.
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