With the election of President Trump, we have begun to see the removal of undocumented aliens from the country. Many of our clients are seeing removal operations occurring in major cities being reported daily in the news. We have received numerous calls from clients who are concerned about the possibility of enforcement actions by ICE agents at their facilities. The idea of ICE enforcement actions in workplaces is not new. These actions took place during the Obama administration as well. Here are some tips that may be helpful to concerned employers and their employees.

  • If ICE shows up at your workplace, employees should contact management at their earliest opportunity so that management is aware of what is occurring at the facility.
  • If ICE comes to your facility asking for access to non-public areas of your workplace without a warrant, you can deny access to those private areas. Agents may enter public areas of the workplace without a warrant. Employees should not interfere with agents in public spaces, as interference will an ICE enforcement action is a crime and could subject your employees to prosecution.
  • If ICE has gone so far as to come to your facility to conduct an enforcement action, they likely already have a warrant. If an ICE agent presents a warrant to search the facility you should not make any effort to resist the search. It is sensible to ask the agents who they are looking for and offer to bring that person to the office to avoid workplace disruption. It is certainly of no value to your organization to have ICE agents randomly roaming through your workspace.
  • Keep good attendance records and be sure that you know who is at work. Managers should pay attention to attendance daily. If a raid occurs, agents may or may not inform you of who they have detained. Take attendance again after enforcement action is completed to be sure you know who was taken into custody.
  • Prepare now by making sure your emergency contacts are up to date for all employees. If employees are taken from your facility, contact their next of kin to ensure arrangements are made for picking up their kids from school, etc. This also gives the next of kin the chance to contact counsel to assist the detainee if they choose to do so.
  • Be sure you have I-9s for all employees and that they are properly prepared. Once employees have been detained, ICE will likely ask for the employees’ I-9s and other employment records. Be sure you are in compliance. Go back and examine supporting documents (if you keep them) to be sure they appear valid on their face.
  • Employees who may be detained need to know they can invoke their right to remain silent. They may refuse to sign any documents presented to them by ICE.
  • If ICE begins asking authorized workers if they know the whereabouts of any undocumented persons, they should invoke the right to remain silent. Mistakenly identifying someone as illegally working in the United States could result in action being taken against the employee by the person mistakenly identified.

There is very little you can do to assist individuals who are in the country illegally. The steps we are recommending are designed to protect your business and your employees. Please contact us with any further questions.

Yesterday, the Trump Administration announced that it offered voluntary buyouts to over two million federal employees.  Employees who voluntarily resign their position will receive payments equal to approximately eight months of their salary.  Obviously, the goal is to reduce the size of the federal workforce and related expenses.

From time to time, our clients ask us about doing similar voluntary exit incentives to shrink their labor-related expenses.  Such voluntary programs often have pros and cons.  Some of those tradeoffs look like this:

Pros

  • By allowing employees to volunteer to resign or retire, the company can accelerate the departure of employees who are planning to leave anyway or who are on the fence about whether to leave. The buyout may provide them the final nudge they need.
  • Employees on the cusp of retirement often elect the voluntary buyouts.  Those same employees tend to be the highest compensated employees.   By capturing those employees in the voluntary buyout, a company can shed some of its most expensive labor.
  • It avoids difficult decisions. If the employee volunteers to leave, the company does not need to make the hard decision about who to keep and who to let go.
  • Voluntary buyouts often come with a severance agreement that includes a general release of all claims. The employees elect the voluntary buyout knowing that they will sign a general release to receive the incentive payments.  So, the risk of post-termination discrimination lawsuits is significantly diminished.

Cons

  • A company-wide buyout offer can lead to critical employees leaving the company. The departure of those key employees can cause serious skill-drain and corresponding loss in productivity/revenue.  As a result, the buyout may be entirely counterproductive.
  • The company may be left with the worst performing employees. A company’s highest performing (and most marketable) employees are typically confident that they can go back into the marketplace and find new employment.  So, they are more inclined to take the buyout.  Conversely, poor performing employees (particularly those who have become comfortable due to lack of supervisory oversight), tend not to elect.
  • A voluntary buyout is not precise enough. It is rare that the effects of a voluntary buy-out are spread evenly across all departments.  A voluntary buy-out risks that the employees who elect to participate are concentrated in a limited number of departments, causing imbalance in the workforce.  For example, let’s say a company’s IT department is lean, and because of that leanness the employees are disgruntled.  In a buyout, all the IT employees elect, leaving no one in the IT department.  At the same time, the marketing department is bloated, and because of the excess headcount work demand is low.  In the buyout, none of the marketing employees elect.  The end result is that the company loses employees it needs and keeps employees it doesn’t.
  • While financial payments are necessary to incentivize anyone to voluntarily resign, the uncertainty surrounding healthcare insurance and related costs often prevents employees from accepting the buyout. Unless there is some continuation of paid healthcare (often through COBRA) for a sufficient period of time to bridge the employee to their next job or to Medicare, the risk is often too great for employees to take the offer.  The cost of continued healthcare certainly impacts the cost-benefit analysis for the company.

 

Upon balancing these pros and cons, companies tend to either skip voluntary buyouts altogether or carefully determine which employees are eligible to participate.  It is not uncommon for companies to go through a two-step process: a narrowly defined voluntary buyout program followed by an involuntary reduction to surgically remove the remaining excess.

We will find out sooner rather than later whether some of these concepts will surface with the federal government voluntary buyout program.

Since 1965, federal contractors have been required to take affirmative action to ensure that they are not discriminating against employees.  The affirmative action requirement stemmed from an executive order (11246) issued during the Johnson Administration.  That executive order related specifically to taking affirmative action to avoid discrimination on the basis of sex, race, and ethnicity.  From Executive Order 11246, the Office of Federal Contract Compliance Programs (OFCCP) was born, and a body of regulation was developed.  Affirmative action was later expanded by legislative action of Congress to include disability and veteran status.  Our federal contractor clients are well aware of these affirmative action requirements, and many have endured audits by OFCCP evaluating their compliance.

Today, the pendulum swung.  As part of his executive order eliminating DEI initiatives, President Trump also gutted affirmative action.  President Trump’s executive order revokes the entirety of President Johnson’s Executive Order 11246, the origin of affirmative action.  As a result, the affirmative action requirements relative to sex and race/ethnicity no longer exist.  Federal contractors are only permitted to continue complying with the current regulatory scheme for 90 days.

President Trump’s executive order does not stop there.  It also orders OFCCP to stop: (1) promoting diversity; (2) “holding federal contractors and subcontractors responsible for taking ‘affirmative action’”; and (3) allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.  In effect, OFCCP is severely hamstrung.

Instead of the affirmative action requirements, President Trump’s order simply requires that federal contractors agree that its compliance with existing anti-discrimination laws is material to the government’s issuance of payment on the contract.  The order also requires that a contractor affirmatively certify that it does not operate any DEI programs that violate federal anti-discrimination laws.

Notably, President Trump cannot eliminate by executive order the statutory affirmative action requirements created by Congress related to disability and veteran status.  Unless and until Congress revokes those statutes, federal contractors continue to have affirmative action obligations with respect to those traits.

So, where does that leave you if you are a federal contractor?  Well, if you are collecting data and performing data analyses related to sex and race affirmative action, you need not.  You should, however, continue to comply with disability and veteran affirmative action requirements (though these are somewhat easier than sex and race).

It is clear that the intent behind President Trump’s executive order is to rely on existing federal discrimination laws to address employment discrimination in America.  It will be interesting to see whether a spike in federal discrimination lawsuits, and related burden on the judiciary, is an unintended consequence of today’s executive order.

It’s the most wonderful time of the year! The season’s greetings provide us with time to gather and reflect on the accomplishments and triumphs of ourselves and our peers. With a season so festive and spirits so bright, let’s not have legal nightmares keeping you up at night. You gather as co-workers, friends, and colleagues, but this holiday season, take it easy on the eggnog, please. Make sure to enjoy your holiday season (responsibly), and in doing so, let’s help you stay on the “nice” list this year!

Too much ‘Holiday Spirit?’

It’s important to remember that employment laws don’t take a break for the holidays.  A holiday party can be a great way to celebrate another year gone by and build camaraderie, but employers should remember, and remind their employees, that company policies still apply.  This includes, of course, policies against discrimination and discriminatory harassment.  And, with many employers choosing to serve alcohol at holiday functions, as you may guess, this could increase the odds that things could go sideways.  If the party gets too rowdy, or if a flirtation progresses into an inappropriate sexual advance, you may soon have a whole host of issues on your hands, ranging from the obvious sexual harassment claim to other issues, like workers’ compensation claims, or liability to a third-party for damages caused by one of your merrymaking employees.

As the holiday festivities are shortly starting, it is imperative to provide a helpful reminder to employees (and supervisors) that the company’s policies against harassment and discrimination apply during company-sponsored events, just as they ordinarily apply during the workday.

Remember that Holidays Aren’t the Same for Everyone

It’s also worth remembering that not all employees celebrate the religious aspects of the season.  Diversity makes the workplace a better, more productive place, and a holiday party should reflect the diversity of the workplace.  Beyond the fact that laws like Title VII of the Civil Rights Act of 1964 protect against discrimination on the basis of religion, your holiday party should be a place of inclusion that makes all employees of any or no religious affiliation feel welcomed. Consider these steps:

  • Hold holiday parties off-premises and during non-work hours if possible.
  • Make attendance optional. If the party is held outside of work hours and optional, then employees who may not celebrate holidays for religious or ethnic reasons can miss the party without forfeiting pay or suffering discipline.
  • Consider offering a “holiday party” or “end of year party” instead of a celebration linked to a particular religious observance. Although you may not get sued for simply having a “Christmas Party” or “Hanukkah Party,” adding religious overtones to your celebration may leave some workers feeling alienated or unwelcome.
  • If an employee has a religious or cultural objection to participating in your company’s holiday celebration, explore whether there’s a reasonable accommodation that will alleviate that employee’s concerns.

Don’t Hog the Eggnog!

Many employers choose to serve alcohol to add to the cheer and festive atmosphere at their holiday parties.  There’s usually nothing wrong with this from a legal perspective, and employees often appreciate the ability to enjoy an adult beverage while having a good time with work colleagues.  Serving alcohol at a work function does have its risks, though.  Here are some considerations if you decide to include alcohol at your holiday festivities:

  • Consider offering drinks with lower alcohol content, such as beer, wine, and hard seltzers, and serving food, too, to help slow the absorption of alcohol.
  • Consider having alcohol served by a professional bartender who can better recognize a visibly intoxicated person and/or limit the number of beverages available for each guest.
  • Make transportation available to and from the event.

The holidays are a time of celebration for everyone, and your holiday party should be, too. Remaining cognizant of the liability issues that may be associated with a holiday party can help keep things ‘merry and bright.’ As always, feel free to contact a member of the McNees’ Labor & Employment Group if you have any questions or concerns about your holiday party.  We wish you all a happy and healthy holiday season!

The National Labor Relations Board (“NLRB”) issued a decision finding that an employer violates the National Labor Relations Act (“NLRA”) by requiring employees to attend meetings in which the employer expresses its views on unionization. The decision, Amazon.com Services LLC, was issued on November 13, 2024 and overruled precedent dating back to 1948.

Under the ruling, these meetings—commonly known as “captive audience meetings”— violate the NLRA when the employer requires attendance under threat of discipline or discharge. The NLRB reasoned that these meetings interfere with an employee’s right to freely decide whether, when, and how to discuss unionization. Further, the NLRB stated these meetings can give a “coercive character” to the employer’s message.

Although this decision may take away a very powerful tool for employers facing a union campaign or election, employers can rest assured that the rule is not retroactive.  The ban will only be applied moving forward and will not be applied to meetings that occurred prior to the ruling.

While an employer may currently be prohibited from holding captive audience meetings, even under the Amazon decision, an employer can still meet with employees and discuss its views on unions.  The NLRB offered a safe harbor scenario to avoid violative captive audience meetings. An employer seeking to hold a meeting to express its views on unionization should provide advance notice regarding the following: (1) the subject matter of the meeting; (2) that attendance is voluntary with no adverse consequences for failure to attend; and (3) that the employer will not keep attendance records of the meeting.

In 2022, Jennifer Abruzzo, General Counsel of the NLRB, issued a memo stating her position that similar violations of the NLRA occur when a supervisor approaches an employee during work to discuss unionization and the employee perceives that they cannot walk away. Because that scenario was not at issue in the Amazon case, the NLRB did not take a stance on that argument. Therefore, employers should caution their supervisors not to approach employees to discuss unionization while the employee is working.

The ruling serves as a reminder for employers to consult with legal counsel when dealing with potential unionization efforts or a petition for election to ensure they are operating with the most up-to-date information on what is permissible under the ever-evolving NLRA legal landscape.

On Friday, November 15, 2024, a federal district court in Texas struck down the U.S. Department of Labor’s final rule issued in April 2024 that increased the minimum salary requirements for the Fair Labor Standards Act’s white-collar overtime exemptions.  Judge Sean D. Jordan found that the DOL lacked the statutory authority under the FLSA to raise the minimum salary requirements in the manner that the 2024 rule did.  Importantly for Pennsylvania employers, this decision vacates the new FLSA minimum salary requirements on a nationwide basis.

As we previously discussed, the DOL’s April 2024 rule increased the minimum salary requirements for the FLSA’s white-collar exemptions from $684 per week ($35,308 annually) to $844 per week ($42,888 annually) effective July 1, 2024, with another large increase to $1,128 per week ($58,656 annually) scheduled to take effect on January 1, 2025.

With this decision, the increased minimum salary requirement that was supposed to take place on January 1, 2025 will not take effect as scheduled.  The court also invalidated the increased minimum salary requirement that went into effect on July 1, 2024.

The court found that these significant minimum salary increases essentially created a de facto “salary-only” test for the white-collar exemptions, which the court said was contrary to the FLSA’s statutory language.  The court also struck down the automatic update (i.e., increase) provision of the 2024 rule, which would have automatically changed the minimum salary threshold every three years based on earnings data, with the first automatic update scheduled for July 1, 2027.

The minimum salary requirement for these FLSA exemptions now reverts back to the $684 per week number under the prior DOL regulations that took effect in 2020.

The DOL may appeal the decision to the Fifth Circuit Court of Appeals.  With the pending transition to the Trump administration in January, it is doubtful that the incoming DOL leadership would pursue such an appeal.  Whether the Trump DOL will consider changes to the overtime exemption requirements through regulatory action is currently unknown.

If you have any questions about how this decision impacts employee exemptions or your obligations under the FLSA, reach out to any member of the McNees Labor & Employment Group.

In Pennsylvania, fall is in full swing, football season is hitting its stride and Thanksgiving is just around the corner.  What is on the menu for employers as the fall turns to winter?  Maybe some more restrictions on marijuana testing in the workplace?  Medical Marijuana is legal in PA and if you listen to the rumors, recreational marijuana may soon be on the menu.  Before we can even get to that course, Pittsburgh joined the party with an amended ordinance that employers should be aware of.  Will this new Ordinance be a sign of things to come or a one and done?

The City of Pittsburgh amended its Anti-Discrimination Ordinance to include protections for medical marijuana cardholders who work in or are applying to work in the city. The amended Ordinance restricts drug testing for applicants and employees who meet the Ordinance’s definition of a “medical marijuana patient.”  Here are some of the specifics:

What Does the Ordinance Do?

The Ordinance provides enhanced workplace protections for medical marijuana patients. City employers with five or more employees (including employment agencies and labor organizations) may not condition employment upon the passage of a pre-employment drug test for marijuana. The Ordinance also imposes restrictions on drug tests performed during employment; testing is permitted only under reasonable suspicion and after a workplace accident. For those entitled to protection, the employer may continue testing for other illegal drugs and controlled substances, only marijuana must be excluded from the testing panel.

Who is Protected?

Only those who meet the definition of a “medical marijuana patient” are protected by the Ordinance. The Ordinance defines “medical marijuana patient,” as someone who is certified under the Pennsylvania Medical Marijuana Act to access medical marijuana. There are no protections for applicants or employees who may be protected under another state’s medical marijuana program. If an Ohio resident, for example, chooses to work in the City of Pittsburgh, he or she would not be protected by the Ordinance. Likewise, any applicant or employee who holds a card in another state – and who has not yet become certified under Pennsylvania law – is not protected.

Are There any Exceptions?

There are a few limited exceptions to the testing restrictions. The Ordinance does not preempt the drug testing requirements of the state or federal department of transportation. Testing is also permitted if specifically allowed by a collective bargaining agreement and where the employee is required to carry a firearm as part of the job. However, there is no broad exception that allows testing for applicants and employees in other safety sensitive jobs.

Does the Ordinance Enhance Any Other Protections for Medical Marijuana Patients?

No. Employers in Pittsburgh may still discipline employees for being under the influence while at work. Employers may still prohibit employees from using medical marijuana on employer property and during work hours.  Pittsburgh employers may still restrict medical marijuana patients from performing certain safety sensitive jobs if the individual would be under the influence of marijuana while performing the job.

What Should a Pittsburgh Employer Do Now?

  • Update your drug testing policies to comply with the Ordinance.
  • Work with your drug testing vendors/facilities to create a process for identifying medical marijuana patients and ensuring they receive the appropriate testing in accordance with the Ordinance. Keep in mind that no questions regarding medical marijuana patient status may be made until after a conditional offer of employment has been made; such question is considered a medical inquiry.
  • Train your managers and hiring personnel. Anyone involved in the hiring process must be educated on the new ordinance and the enhanced protections for medical marijuana patients.
  • Refresh your reasonable suspicion/workplace impairment recognition program. With broad prohibitions on drug testing, and the general inability of a test to detect impairment from marijuana, a strong reasonable suspicion/impairment recognition program is critical. Managers and supervisors should be trained on the signs of impairment and how to objectively recognize and clearly document when someone is impaired. This is the key to keeping workplaces safe in the age of medical marijuana.
  • Consult your counsel with questions.

On Tuesday, August 20, 2024, a federal judge in Texas set aside the Federal Trade Commission (“FTC”) Rule banning the use of noncompete agreements in employment, which was set to take effect on September 4, 2024. The judge held that the FTC exceeded its statutory authority in making the Rule, and that the Rule violated the Administrative Procedures Act because it was arbitrary and capricious.

As we explained in our prior post, the Rule would have rendered most noncompete agreements unenforceable, and imposed specific notice requirements on employers for employees with existing noncompetes. For now, the Rule is effectively blocked nationwide, pending a potential appeal by the FTC. At this time, employers can continue to utilize and seek enforcement of their otherwise enforceable noncompetes without regard for the FTC’s Rule.

Regardless of the viability of the FTC Rule, noncompetes continue to face heavy scrutiny from lawmakers and some courts across the country. For example, last month, Pennsylvania imposed new limitations on noncompetes for health care practitioners. Last year, two separate bills that would impose significant limitations on the enforceability of noncompetes were re-introduced by both Republican and Democratic lawmakers in the U.S. Senate and House of Representatives. Now that the FTC Rule has been struck down, these bills could be revisited.

Employers who utilize noncompetes should stay informed on the latest developments in the ever-changing noncompete landscape. We will continue to monitor and provide updates on developments with the FTC’s likely appeal of the court’s decision to set aside the Rule on noncompetes.

With a presidential election just around the corner, employers can expect to see an uptick in political discussions in the workplace, if they haven’t already. The days when coworkers typically refrained from discussing politics and religion have passed. However, what is permitted and required of employers with respect to politics in the workplace these days can be a minefield.

 

Employee Political Discourse

 

As an initial matter, in most cases, federal law does not protect employees’ political speech or views from the actions of private employers. The First Amendment to the United States Constitution only protects speech from government action. While public employers need to be mindful of the First Amendment, it does not have any impact on private employers and their relationships with their employees.

However, numerous states and localities prohibit discrimination based on political views, speech, and affiliation. Employers should familiarize themselves with any applicable laws that may exist within any jurisdiction where their employees are located. This may be increasingly challenging given the popularity of remote work. Additionally, government contractors may be subject to additional restrictions on taking action against employees for political speech or views.

Under the National Labor Relations Act (“NLRA”), employers are prohibited from taking action against employees for engaging in protected concerted activity, which includes communications about wages, hours, and terms or conditions of employment. Depending on the content and context of an employee’s political discourse, the National Labor Relations Board could construe political discourse as protected concerted activity. For example, labor unions and paid family leave are issues that have been discussed by the presidential campaigns during this cycle. If an employee expressed support for a candidate based on the candidate’s views on these issues, responsive action by the employer could implicate a potential violation of the NLRA.

As a side note, it has long been a best practice for employers to have clear, NLRA-compliant policies in place outlining the framework for permissible and impermissible solicitation and distribution by employees in the workplace.

Employment action in response to political discourse involving a trait protected by federal, state, or local anti-discrimination laws such as race, sex, disability, national origin, and religion, could be construed as illegal discrimination. Administrative agencies or courts could view the political discourse as serving as a proxy for the protected trait, which would bring the situation within the scope of anti-discrimination laws.

Taking action against employees for political speech on social media invites more complications. Many states and localities have social media privacy laws which restrict employers’ access to their employees’ social media accounts, and therefore limit the action that employers can take with respect to the employees’ posts. Further, employees’ social media activity can still implicate the anti-discrimination and protected concerted activity issues addressed above. Employers should have detailed social media policies in place, especially if they may take action based on an employee’s social media posts.

Additionally, employers should consider the impact that banning political discourse might have on employee morale and workplace culture. On the one hand, political discourse can be distracting and create division. On the other hand, a complete ban on political expression could result in resentment from employees, particular since individuals often feel a strong personal connection to political issues. Further, some political issues may be directly or indirectly relevant to the employer’s business or to the work performed by the employee, which makes it more difficult to both justify and enforce a complete ban.

 

Employer Political Discourse

 

Employers are generally not restricted from expressing their political opinions in the workplace. However, before engaging in political speech, employers and supervisors should consider the unintended effects that their words may have on employees. Depending on the content and effect of an employer’s or supervisor’s political speech, the employer or supervisor runs the risk of violating the NLRA’s protection against concerted activity as well as federal and state laws which prohibit voter intimidation and can carry significant criminal penalties.

 

Recommendations

 

Employers should clearly communicate their expectations to employees regarding workplace conduct generally, and should uniformly enforce their carefully drafted policies. Now would be a good time to issue reminders regarding professionalism and harassment policy requirements.  Employers should also consider discouraging supervisors from having political discussions with subordinates to reduce the risk of discrimination, NLRA, and voter intimidation claims.

Ultimately, before engaging in political speech or taking action based on the political speech or views of an employee, employers should consult legal counsel to avoid any unexpected pitfalls. If you have questions about how to handle a situation involving political discourse in your workplace, please contact a member of the McNees Labor & Employment Group.

 

 

On July 17, 2024, Pennsylvania passed a new law concerning noncompete agreements within the healthcare industry, which is known as the Fair Contracting for Health Care Practitioners Act (the “Act”). The Act will take effect on January 1, 2025, and brings significant changes impacting how noncompete agreements can be used and enforced within healthcare industry.

The Act prohibits the use of employment-related noncompete agreements that are: (1) more than one year in length ; and (2) entered into after the effective date (i.e., January 1, 2025). This prohibition applies to specific healthcare professionals, particularly those in direct patient care roles, including licensed medical doctors, osteopathic doctors, registered nurse anesthetists, registered nurse practitioners, and physician assistants (referred to as “Heather Care Practitioners”).

Although the Act still allows employers to enter into noncompete agreements that are one year or less in length, it prohibits enforcement of those noncompete agreements if the Health Care Practitioner was dismissed by the employer. However, the Act does not appear to impact noncompete agreements entered into prior to January 1, 2025.

The Act defines a “noncompete covenant” as “an agreement that is entered into between an employer and a Health Care Practitioner in this Commonwealth which has the effect of impeding the ability of the Health Care Practitioner to continue treating patients or accepting new patients[.]” We expect courts will be asked to decide whether a non-solicitation agreement might fit into this broad definition. The Act’s language could be interpreted either to apply only to noncompetes entered into in Pennsylvania, or, alternatively, to Health Care Practitioners in Pennsylvania.

Furthermore, the Act does not apply to noncompete agreements related to the sale of an ownership interest or the sale of all or substantially all of the assets of a health care practice, if the Health Care Practitioner has an ownership interest in the practice, or in connection with a Health Care Practitioner receiving an ownership interest in the practice. It does not appear that the one-year limited time duration mentioned above applies to these types of noncompete agreements.

The Act does allow an employer to recover from a Health Care Practitioner, reasonable expenses “related to the relocation, training, and establishment of a patient base,” only if the Health Care Practitioner left employment on his or her own volition and was not terminated or dismissed by the employer.

Additionally, the Act requires healthcare employers to issue patient notifications within ninety days after a covered Health Care Practitioner leaves the organization. This notice must inform patients how they may transfer their health records to a new Health Care Practitioner other than the employer and that they may be assigned to a new practitioner within the employer. The notice is required for all patients with an ongoing relationship with the practitioner of two or more years and seen by the departing practitioner within the past year.

Pennsylvania employers in the healthcare industry should review the noncompete agreements they currently use with Health Care Practitioners and modify their terms as needed to prepare for compliance with the Act. Upon the departure of practitioners with noncompetes covered by the Act, employers will need to ensure compliance with the Act’s new restrictions on enforcement and specific requirements for providing notice to certain patients. In the coming years, employers should also work with their legal counsel to monitor how Pennsylvania courts refine some of the issues that the Act leaves open to interpretation, such as the question of whether the Act applies to non-solicitation restrictions.