As a new administration takes office, the landscape of employment law is rapidly changing. Here, we highlight some of the major issues that are likely to be battled in the courtroom over the coming year.

Anti-DEI Push.

A primary focus of the new administration and consequence of the presidential election is a vocal push against DEI (diversity, equity, and inclusion). The new Attorney General has announced plans to prosecute corporations who continue to pursue DEI efforts.1 Many major U.S. corporations have publicly announced rollbacks of DEI programs that have been in place for years, while others seem to be quietly adopting a wait-and-see approach. At the same time, there have been numerous recent lawsuits against companies with DEI or similar policies in the wake of the recent Supreme Court decisions prohibiting affirmative action in university admissions, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

We believe that this is going to continue to be a hotly-litigated issue in courts and the media. There will be natural consequences for all employees, in areas of hiring, promotion, and termination, including employees selected for layoffs as employers grapple with “anti-DEI” and attempt to avoid scrutiny.

At Radford Scott, we are on the lookout for instances where the “anti-DEI” push conflicts with federal law. Under Title VII of the Civil Rights Act of 1964, and other federal civil rights laws, an employer is forbidden to retaliate against an employee who objects to discrimination. We envision scenarios where an employer punishes an employee who is vocal about unlawful discrimination, believing they have cover under the rhetoric of the new administration. However, such retaliation remains unlawful. If you have experienced it, please contact us.

Federal Deferred Resignations, “Fork in the Road,” and Federal Layoffs

After the new administration takeover, over two million federal employees received the now well-known “fork in the road” email, offering them the option of “deferred resignation.” There are a number of considerations that impact such a mass reduction in force. While we anticipate courtroom battles over this issue, the deferred resignation agreements have, for now, received a preliminary green light from the courts.

We have received a number of inquiries about this issue, and it is a situation we are continuing to monitor. Federal employees have unique protections and procedures for challenging employment actions. It is critical for impacted employees who are considering their options to seek experienced counsel. This is a dynamic situation that will continue to develop.

Remote Work and the ADA

COVID-19 demonstrated that many jobs can be performed remotely, at whole or in part. At Radford Scott, we find ourselves appearing virtually in Court far more frequently than pre-pandemic.

Employment disputes often arise when employers insist that employees must perform all or part of their job in the office and the employee wants or needs to work remotely, including to accommodate a disability. In this situation, both the employer and the employee must engage in an interactive process to determine if a reasonable accommodation can be reached that allows the employee to perform the essential functions of the position.

The question then is whether in-person work is an essential job function. We recently achieved a favorable result on this issue for our client, a college professor who needed to teach from a remote location because of sinusitis exacerbated by allergies when living in the southeast. The Court held that a reasonable jury could find that the professor could perform his essential job functions when teaching remotely. See Greene v. Bd. of Regents of Univ. Syst. of Ga., 2024 WL 3508158 (N.D. Ga. July 18, 2024).

As with the issues above, the current administration has waded into the fray, requiring that all federal workers return to in-office work. It’s unclear what impact there will be on employees working remotely because of a disability, although the official communication provides that department and agency heads are permitted to make exemptions they deem necessary.

Non-competition and Non-solicitation Agreements

Battles over employment noncompetition and nonsolicitation restrictive covenants continue to flow into our office. Many officers and employees who sign, or decide to violate, noncompetition agreements unfortunately do so under the mistaken belief that such agreements are unenforceable or were invalidated by the highly-publicized rule issued by the FTC in 2023.

This is not the case. A district court in Texas enjoined the FTC rule in August 2024. An appeal has been filed to the Fifth Circuit Court of Appeals; we do not believe that very conservative court will reverse the lower court’s decision, although there is always a chance.

The real action is at the state level. Where you live and work will often decide whether and to what extent a non-competition agreement is enforceable. Post-employment non-competition agreements are alive and well in Georgia, provided certain statutory criteria are met and they are properly drafted. Non-competition clauses have, however, been banned outright or curtailed in other states. Some states, such as Illinois, now have income thresholds for non-competition agreements.

In Georgia, there have been recent swings in whether a geographic restriction is required for an employee non-solicitation agreement. After the Georgia Court of Appeals ruled in 2023, in North American Senior Benefits, LLC v. Wimmner, 2023 WL 396391 (Ga. Ct. App. June 12, 2023) that a geographic restriction was required for an employee nonsolicitation agreement, employers and their counsel rushed to revise agreements to comply. Then, in 2024, the Georgia Supreme Court stepped in and held that such geographic restrictions were not required for employee solicitation agreements and further suggested that an express geographic restriction may not even be required for noncompetition agreements, provided they are reasonable overall. See N. Am. Senior Benefits, LLC v. Wimmer, 319 Ga. 641 (2024).

This area is regularly in flux and requires constant monitoring.

The biggest mistakes that we see employees making in this area are: (1) signing the noncompetition agreement without consulting a lawyer to fully understand the consequences; or (2) post-employment, starting to violate the agreement without consulting counsel and determining what the valid restrictions are. As to the latter, we frequently can work out a deal with employers to allow employees to continue to earn a living so long as the employer’s legitimate interests are protected.

On the other side, employers slip up when they: (1) fail to account for the state law for the state in which their employees are working (a particular problem with remote work); or (2) attempt to draft the agreements themselves using outdated or AI-generated agreements.

For both employees and employers, it’s critical to understand the state of the law where the employee is working before everyone signs off on the contract.