Offit Kurman Blogs
Labor and Employment
Virginia Joins the National Trend Limiting Noncompete Agreements
Employers who do business in Virginia and have employees who work in that jurisdiction need to be aware of a law which will soon be enacted limiting the use of noncompete agreements. It is no secret that there is a growing national trend towards limiting the use and enforceability of noncompete agreements, predicated upon what legislatures and courts deem to be unfair restrictions on employee mobility and freedom of competition in the marketplace. Thus, on March 4, 2026, the Virginia legislature approved Senate Bill 170, which contains a detailed regimen of restrictions imposed on employers who have employees in the Commonwealth. So, in general, what does this piece of legislation do, which is expected to be signed into law by Governor Spanberger? Well, there are a number of detailed nuances to the legislation, and they are too numerous to be enumerated here, but the following are merely highlights of the newly anticipated restrictive law: The new law, if enacted as expected, would prohibit noncompetes for any employee who is laid off without severance benefits or other monetary payment, unless such employee is terminated for “cause” (both “severance benefits” and “cause” are undefined in the law) The new law would become effective for all noncompete provisions entered into, amended, or renewed AFTER July 1, 2026, but significantly does not apply retroactively to any agreement entered into prior to July 1, 2026 Interestingly, the law applies to all employees, irrespective of their rank or station in the company, even those in senior management positions The law does not prohibit non-solicitation of customers or employees Employers who violate the provisions of the law face the possibility of being sued in a private right of action where the claimant can obtain injunctive relief, liquidated damages, backpay, and counsel fees Additionally, under the law, the Virginia Commissioner of Labor and Industry may impose a civil monetary penalty of $10,000 for each violation Employers doing business and employing individuals in Virginia need to closely monitor developments with the new law, and if enacted as expected, be prepared to carefully draft noncompete provisions in accordance with what appears to be a very restrictive legislative scheme. Because there are many open questions surrounding the details of the new law, it is strongly advised to seek qualified employment counsel when contemplating the use of noncompete provisions in the Commonwealth of Virginia.
April 1, 2026
Labor and Employment
The Social Media Aftermath of the Charlie Kirk Assassination – Can An Employer Fire An Employee for Offensive Social Media Posts?
In an article in the September 16, 2025, edition of The Washington Post, the lead paragraph read as follows: “The wave of companies and other institutions firing or suspending employees over what they’ve said in reaction to last week’s killing of conservative influencer Charlie Kirk has expanded in recent days, as some of his supporters in and outside the government amp up a push against speech they say crosses lines.” Thus, the question that arises in the minds of both employees and employers related to the voluminous publicity surrounding the recent Kirk assassination is whether an employee’s social media post, which is deemed to be offensive, can justify the potential termination of such an employee. The short answer to this inquiry is that in the private sector, as opposed to the arena of public employment, where First Amendment protections may be applicable, employers have wide discretion to discipline and even fire employees for posts which are deemed to be unduly offensive, inflammatory, or violative of their cultural or internal policies. The caveat for private sector employers is that employees enjoy statutory protections under the National Labor Relations Act for speech of a political or social nature when such speech or posted comment is related to such employee’s workplace’s wages, hours or terms and conditions of employment. Furthermore, employees also enjoy protections under Title VII of the federal Civil Rights Act if, for instance, their social media posts protest discrimination in the workplace, when that alleged discrimination refers to any protected status, such as religion, national origin, race, disability, etc. Private employers would be well-advised in this incendiary political climate to analyze each situation based on the facts and circumstances of the post in question, and to evaluate whether such post is violative of its internal policies, is deemed to be overly inflammatory and/or offensive to a person(s), is disparaging or defamatory to the employer or its employees or customers, is damaging to the company’s reputation or cultivated image, or is deemed to be simply inconsistent with civilized and acceptable societal discourse. In any situation where termination may be predicated upon a social media post and where uncertainty may exist regarding potential legal exposure and/or a looming public relations crisis, it is always advisable for the employer to consult with competent employment counsel and/or a public relations crisis expert. Howard Kurman is a founder of Offit Kurman, a AmLaw 200 law firm. He is a principal in the firm’s labor/employment practice and regularly counsels employers on all facets of employment and labor relations law and practice. To contact Howard, he may be emailed at hkurman@offitkurman.com, or by phone at his office: 410-209-6417.
September 18, 2025
Labor and Employment
Here We Go Again: The DOL’s Proposed Overtime Rule with its Accompanying New Salary Test is Struck Down by a Texas Federal Court
On November 15, 2024, in the case of State of Texas v. United States Department of Labor, Texas federal court judge Sean Jordan struck down what had been scheduled to be a mandatory adjustment in the so-called “white collar” overtime exemption classifications taking effect on January 1, 2025. The “white collar exemptions” included those employees classified as “executive”, “administrative” or “professional” employees who met both a “duties” test and a “salary” test under the Fair Labor Standards Act. Under a 2019 rule, the salary level needed to be met by an exempt employee was $684/week or $35,568 per year. The Department of Labor under the Biden administration promulgated a rule which mandated two adjustments to the exempt salary requirement for executive, administrative and professional employees. Those adjustments called for an increase on July 1, 2024 to $844/week or $43,888/year; and a further adjustment scheduled for 2025 of $1,128/week or $58,656/year. In his decision Judge Jordan, in vacating the DOL’s proposed rule, concluded that the DOL had impermissibly elevated the new salary requirement in a manner which, in essence, negated or drastically reduced the importance of an exempt employee’s bona fide job duties and thus exceeded its Congressionally delegated authority to determine the elements of a legitimate exempt employee under the FLSA. While it is certainly possible that Judge Jordan’s decision could be appealed to the Fifth Circuit, given the results of the recent presidential election and the predicted more conservative and employer-friendly trends that will most likely follow in agencies such as the DOL, EEOC and NLRB, it is more probable that for the time being the decision striking down the proposed new salary level will remain in effect. The implication of the decision is that the former salary level of $684/week for exempt employees will remain in effect now pending any further adjustment sometime in the future. From a business perspective, companies that adjusted their exempt salary levels back in July will have to decide whether it is more prudent and acceptable to keep those salary levels intact rather than reverting to the then-mandated July 1 adjustment.
November 21, 2024
