Yesterday, the White House announced that President Biden plans to issue an executive order encouraging the Federal Trade Commission (FTC) to restrict businesses’ use of employee non-compete agreements.  So-called “non-competes”, which ban or restrict workers from seeking similar jobs at rival firms, are employed by roughly half of all private-sector businesses in the United States and affect between 36 million and 60 million workers. Biden’s forthcoming order, summarized during yesterday’s press briefing, will urge the FTC to limit non-compete agreements via the agency’s recently-unlocked rulemaking authority under Section 5 of the FTC Act.  The order is also expected to ask regulators to ban “unnecessary” occupational licensing requirements and limit employers from sharing employee wage information with each other in ways that may amount to collusion.  The move coincides with growing interest among antitrust regulators and academics in addressing the issue of “monopsony power”—namely, the power of certain firms to limit competition for workers among employers and thereby depress wages.  Already, the Department of Justice has brought two criminal antitrust indictments against companies in the past six months for restricting labor market flexibility.

In a filing on Tuesday, National Nurses United (NNU) withdrew its challenge to the Occupational Safety & Health Administration’s (OSHA) newly released emergency temporary standard (ETS) regarding COVID-19 workplace protections.  The lawsuit, filed in the Ninth Circuit on June 24, was lodged in tandem with a suit filed jointly by the AFL-CIO and the United Food and Commercial Workers (UFCW) in the D.C. Circuit, as the two latter unions seek vacature of the ETS as arbitrarily narrow in scope.  As discussed before on the blog, OSHA announced last month that its long-awaited ETS would apply only to healthcare employers in a legally binding manner, much to the chagrin of labor advocates.

In a letter sent on Wednesday to President Biden, 20 Republican Attorneys General decried recent guidance from the Equal Employment Opportunity Commission (EEOC) stating that businesses are prohibited from denying employees access to restrooms and other public accommodations that correspond with an employee’s stated gender identity.  The Commission’s guidance document, issued exactly one year after the Supreme Court’s landmark decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020), interprets the ruling as barring employers under Title VII from discriminatorily limiting bathroom access for transgender employees.  The Commission also suggests in its guidance that the use of improper gender pronouns by employers could be considered harassment under certain aggravated circumstances.  In the letter, Republican AGs asserted that the EEOC “fundamentally misconstrue[d] and improperly extend[ed]” the holding in Bostock, which failed to explicitly address the issue of gender-segregated bathrooms.  They also argued that the Commission’s advice on pronoun-based sexual harassment runs afoul of free speech rights under the First Amendment.

Finally, in New York City, outgoing Mayor Bill de Blasio’s long-expected “Hometown Heroes” Parade became marred in controversy yesterday, as multiple unions and worker organizations boycotted the event in response to ongoing labor disputes with the city.  The procession, intended to honor first-responders and other essential workers who helped keep New York afloat during pandemic, was widely criticized by many of the city’s largest municipal unions.  One union currently in contract negotiations with the city, FDNYEMS Local 2507, represents thousands of emergency medical workers, whose entry-level salary stands at just $35,000 per year under the current agreement, absent overtime.  Other public-sector unions in the Big Apple—including nearly all affiliates of the city’s largest, District Council 37—declined to participate in the event and expressed solidarity with labor negotiators.  Andrew Ansboro, President of the Uniformed Firefighters Association, argued that a “more appropriate gesture” to support the workers than the parade would have been to grant hazard pay to essential city employees.