The District of Columbia passed the Ban on Non-Compete Agreements Amendment Act of 2020, which prohibits non-compete agreements entered into by any D.C. employee once the Act became effective, except certain physicians whose annual compensation exceeds $250,000, as well as volunteers, lay members of religious organizations, and casual home-based babysitters. There are specific restrictions to the physician exception that employers should review, including a notice requirement.

Additionally, employers cannot restrict employees from having other jobs or their own business while employed, or restrict their subsequent employment.  However, employers can still protect their own confidential, proprietary, or sensitive information, client or customer lists, or trade secrets.

Employers must provide notice to all employees stating: “No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment of 2020.” This notice must be provided (1) within 90 days after the Act is effective, (2) to new employees within 7 days of hire, and (3) within 14 days following an employee’s request for the notice. There are also anti-retaliation protections, penalties, and enforcement provisions for violation of the Act.

Action Items

New York City’s existing “ban-the-box” law, called the New York City Fair Chance Act (FCA), was recently expanded with the passing of bill Int. 1314-A.  The expanded FCA imposes stronger restrictions on employers who are considering adverse action against applicants or even current employees in specific circumstances and prohibits inquiry into or consideration of dismissed or non-criminal violations in employment decisions.

The FCA originally implemented several provisions impacting recruiting and hiring efforts. Employers cannot inquire into any type of criminal history until after a conditional offer of employment is extended to the applicant. Employers must conduct an individualized assessment of an applicant’s conviction history, utilizing an eight-factor test to determine if the conviction history negatively impacts the applicant’s fitness for employment. If the employment offer will be withdrawn, employers must follow a specific process to notify the applicant and allow them the opportunity to respond.

Virginia’s Emergency Temporary Standard addressing COVID-19 in the workplace expired on January 26^th, and a permanent standard was enacted in its place, effective the following day. The temporary and permanent standards are largely similar with some important distinctions.

• Workplace Exclusion – Employees with COVID-19 must remain away from work for the required exclusion period. Employers should not require a negative COVID-19 test as a condition of returning to work, unless expressly permitted. Employers are not required to exclude employees who have been in close contact with someone with COVID-19.
• Face Coverings and Shields – Approved face coverings were further clarified, including that a face shield is not a substitute for a face covering.
• Air Systems – Employers with employees in the top three risk tiers must implement certain ventilation controls for air systems under their control, such as increasing airflow and air filtration, and using natural ventilation in ground transportation settings.
• Virginia Dept. of Health Reporting – Employers are required to report to the Virginia Department of Health when two or more of its employees test positive for COVID-19 within a 14-day period, rather than the previous requirement of reporting for every COVID-19 case.

Action Items