District Court Strikes Down FTC’s Rule Banning Non-Competition Agreements

In our June E-blast, we informed you that the five member Federal Trade Commission (FTC) voted 3-2 along party lines to approve a new rule intending to make unlawful most non-competition agreements. Importantly, the new rule, which was scheduled to take effect on September 4, was set aside by the U.S. District Court for the Northern District of Texas on August 20, 2024. The court held the FTC exceeded its authority and that the rule was arbitrary and capricious. The FTC is now blocked from enforcing its rule. 

Significantly, for now, employers will remain able to use non-competition agreements in accordance with applicable state law, if any. The FTC, however, may appeal the Court’s decision to the Fifth Circuit Court of Appeals. In doing so, the FTC may ask the appellate court to stay the enforcement of the District Court’s ruling. Stay tuned. We will continue to keep you informed.

In the meantime, if you have any interest in exploring the use of a restrictive covenants agreement which protects your customer base, your confidential information, and your trade secrets, please contact Philip Siegel, who often prepares and reviews these agreements for the Firm’s’ clients. You can e-mail Philip by clicking here, or you can reach Philip directly at (404) 469-9197.

OSHA Publishes Proposed Heat Illness and Injury Prevention Standard

After what seems months, if not years, of anticipation, on July 2, OSHA released a proposed rule addressing the heat hazard for the workplace, in both indoor and outdoor settings. The rule, when implemented, has significant legal consequences for the construction industry. You can link to the proposed rule here.

OSHA’s proposed rule applies to employers with employees exposed to an initial heat trigger defined as a heat index of 80 degrees for at least 15 minutes in any 60 minute period. Employers subject to the proposed rule need to prepare for the following:

(1)  A requirement to have a Heal Injury and Illness Prevention Plan with specific content identified within the rule. For employers with more than 10 employees, the Plan must be in writing.

(2)  A duty to monitor heat conditions at outdoor work areas with sufficient frequency to determine with reasonable accuracy employees’ exposure to heat.

(3)  A duty to provide drinking water, break areas, acclimatization, and paid rest breaks if needed when employees are exposed to heat at or above the initial heat trigger.

(4)  For employees exposed to a high heat trigger, defined as a heat index of 90 degrees, the employer must provide a 15 minute paid rest break at least every two hours and employers must observe for signs and symptoms in accordance with the rule’s requirements, and employers must provide warning signs for excessively high heat areas. All of these steps are in addition to those protections required in response to the initial heat trigger exposure. This includes acclimatization.

(5)  Permitting employees to get acclimatized to heat exposure. For new employees, this means complying with the high-heat trigger requirements at the initial heat trigger temperature, or phasing the new employee in by having them work only 20% of a normal work shift on the first day, 40% on the second day, 60% on the third day, and 80% on the fourth day. For returning employees who have been out of work for more than 14 days, the employer must either comply with the high-heat trigger requirements at the initial heat trigger temperature, or phase the returning employee back to work by restricting work to 50% of a normal work shift on the first day, 60% on the second day, and 80% on the third day.

(6)  Training requirements, including initial training, supervisor training, annual refresher training, and supplemental training.



(7)  Recordkeeping requirements.

OSHA will soon publish the rule in the Federal Register, which will commence a 120 day period for the public to offer comments on the rule. At the conclusion of the comment period, OSHA will issue a final rule, also to be published in the Federal Register. The final rule will become effective 60 days after it is published in the Federal Register. We will certainly keep you informed. In the meantime, if you have any questions about OSHA’s proposed rule, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can call him directly at (404) 469-9197.

EEOC Releases Promising Practices for Preventing Harassment in the Construction Industry

On June 18, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) today issued a comprehensive guide, Promising Practices for Preventing Harassment in the Construction Industry, aimed at addressing and mitigating harassment in the construction sector. A copy of that guide is available here.

During a White House-hosted roundtable, EEOC Vice Chair Jocelyn Samuels emphasized the necessity of this guide, explaining that the unique structure of construction jobs leaves workers especially vulnerable to workplace harassment. Ms. Samuels stated that “The strategies outlined in our new Promising Practices document will help all construction industry stakeholders identify and take concrete steps to effectively prevent harassment, address it if it occurs, and create a worksite culture that promotes equal opportunity for all workers."

The “Promising Practices” guide focuses on the following key recommendations for construction industry leaders:

• Committed and Engaged Leadership:
• Leadership at all levels should actively demonstrate a commitment to a harassment-free workplace. This includes clear, consistent messaging and a visible dedication to enforcing anti-harassment policies.
• Project owners and general contractors should prioritize collaborative efforts across the worksite to prevent harassment, ensuring all entities on-site are held accountable.

• Strong and Comprehensive Harassment Policies:
• Policies should clearly define prohibited behaviors and outline procedures for reporting harassment. They should be communicated regularly in accessible formats, considering language barriers and literacy levels.
• Anti-harassment policies should extend beyond legally mandated characteristics to cover additional factors relevant in construction, such as apprenticeship status or undocumented status.

• Trusted and Accessible Complaint Procedures:
• Multiple reporting channels should be provided, including anonymous options. These channels must be well-resourced and accessible to all workers, regardless of their employer.
• The complaint system should ensure prompt, thorough, and impartial investigations with appropriate corrective actions for substantiated complaints.

• Regular Interactive Training:
• Training should be tailored to the specific workforce and work environment, repeated regularly, and interactive to engage participants effectively. It should cover what constitutes harassment and retaliation, how to report it, and the consequences of such behaviors.
• Training should be provided in all languages commonly used on-site and include sessions for both supervisors and non-supervisory employees to encourage open communication.

The “Promising Practices” Guide also identifies risk factors unique to the construction industry, such as a predominantly male workforce, pressure to conform to traditional stereotypes, and decentralized workplaces. These factors are compounded by the presence of multiple employers on worksites and the cyclical nature of construction projects.

Implementation Strategies:

• Leadership and Accountability: Leaders at all levels, from project owners to union stewards, should clearly and frequently communicate that harassment is not tolerated. Approaches include site-wide collaboration, regular training, and anonymous hotlines for complaints.

• Comprehensive Policies: Effective policies must include clear descriptions of prohibited conduct, accessible complaint procedures, and a commitment to prompt investigations and corrective actions.

• Complaint Procedures: Multiple and accessible reporting channels should be established, ensuring confidentiality and protection against retaliation.

• Training Programs: Training should be continuous, interactive, and adapted to the construction environment, with a focus on recognizing and preventing harassment and retaliation.

EEOC Chair Charlotte A. Burrows highlighted the urgency of these measures, stating, "At a time when job opportunities in construction are rapidly growing thanks to historic federal investments, significant harassment and discrimination still hinder equal employment opportunity in the industry. The EEOC is committed to removing barriers to equal opportunity, and these promising practices, together with the agency's updated Enforcement Guidance on Harassment in the Workplace, provide resources to employers to help prevent and respond to harassment." For more detailed information and guidance on implementing these practices, visit EEOC's official website or contact Mark Husted. You can e-mail Mark by clicking here, or you can reach him directly at 256-453-7506.

For further insights, refer to the Promising Practices for Preventing Harassment in the Construction Industry guide and additional resources provided by the EEOC, which include comprehensive enforcement guidelines and support tools tailored to the unique challenges of the construction industry.

Firm News!

We are also excited to announce that Elina Gutsaeva recently joined the Firm. Prior to joining HPSS Law, Elina was an Associate at an Atlanta law firm where she assisted construction litigation, contract drafting and review for owners, contractors, subcontractors and other clients. She also actively supported negotiating and drafting takeover agreements while providing expertise to advise clients on revisions to governance documents to comply with statutory and regulatory requirements. Elina was formerly Staff Attorney with Ogeechee Judicial Circuit in Statesboro, GA where she assisted four (4) Superior Court judges with a wide range of civil litigation matters, conducted legal research and drafted memoranda and proposed orders. She actively attended jury trials and calendar calls, and communicated with attorneys and clerks of court to ensure cases were efficiently handled.

We are proud to announce that Philip Siegel, Stephen Phillips, and Martin Salzman were selected by their peers for inclusion in the 2025 edition of The Best Lawyers in America® for their expertise in Construction Law!