Global Trends in Non-competes

By Morna Mackenzie and David Whincup on Posted in Labour & Employment, Non-compete agreements

“Non-competes” or clauses that restrict employees from engaging in a competing business for a period of time after their employment ends are an important tool in the arsenal of employers seeking to protect their business interests, and in particular their trade secrets and other confidential information. Increasingly, however, non-competes seem to be coming under fire with many jurisdictions introducing tighter limitations on their use or even considering banning them entirely. 

As has been previously covered in Employment Law Worldview, the US Federal Trade Commission (FTC) placed an outright ban on non-competes in 2024. While the Federal ban was later overturned, several US states (California, North Dakota, Oklahoma and Minnesota) already have near-total bans and (as detailed in the table below) several others are currently legislating against the use of non-competes for defined categories of employee, including those on lower salaries and medical professionals. 

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When Artificial Intelligence Discriminates: Employer Compliance in the Rise of AI Hiring (US)

By Caroline Carrier on Posted in Age Discrimination, Americans with Disability Act, Artificial Intelligence, California, Discrimination, Employment Law, Hiring, Recruitment

Job applicants often worry about what sorts of things may prevent them from obtaining a position. Although applicants may understand that a lack of qualifications or experience can work against them, they might not be as aware that recruitment and hiring tools used by employers may be working against them as well. The processes employers use to narrow applicant pools and ultimately select candidates are becoming increasingly automated; indeed, the World Economic Forum reported in 2025 that approximately 88% of companies are already utilizing some form of artificial intelligence (AI) in candidate screening.

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Pay transparency – Italian draft confirms and surprises at the same time

By Marga Caproni and Elsa Mora on Posted in Pay Transparency

You’d think that, now that we’re less than four months away from the official implementation date of the Pay Transparency Directive, we’d be bombarding you with updates on national implementation initiatives, right? And yet no, things are still fairly quiet on the pay transparency front.

There are, however, some developments to report, for example in Italy. Following a period of formal consultation with unions and social partners, the Italian government has prepared and issued its first draft of legislation implementing the Directive. The draft stays very close to the Directive, but there are some interesting add-ons worth mentioning:

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The New Wage Rule and the $100K Proclamation Will Shape the 2026 H‑1B Cap Season

By Luisa Koidl on Posted in Business Immigration, Employment Law, Immigration Rules, Visa, Wages

USCIS has announced that the FY 2027 H‑1B cap registration window will run from March 4 to March 19, 2026. During this period, employers seeking to sponsor H‑1B workers for this year’s lottery (covering employment beginning October 1, 2026) must use a USCIS online account to electronically register each beneficiary for the selection process and submit the required $215 H‑1B registration fee for each entry.

This upcoming cap season will be shaped more than ever by two major policy developments: the new wage‑weighted lottery system and the presidential proclamation imposing a $100,000 fee on certain H‑1B petitions.

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Voluntary Disclosure by Applicant of Criminal Conviction History Triggers Protections Under State Ban-the-Box Law (US)

By Caroline Carrier on Posted in Ban-the-Box Laws, Employment Law, Hiring

Records of criminal convictions can last a lifetime, and thus can bring a lifetime of difficulty for employees with a criminal conviction history in finding employment, leaving them significantly disadvantaged before they even make it into the interview room. Lack of employment or difficulty assimilating after spending time in the criminal justice system can further increase the chances of re-offending, exacerbating the problem. These issues prompted a wave of state and local “ban-the-box” legislation – laws that delay employers from inquiring into or considering a job applicant’s criminal history until later in the hiring process.

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Pay Transparency vs. Privacy – Who Trumps Whom?

By Marga Caproni on Posted in Pay Transparency
Data Protection Padlock

If we had to rank the most frequently asked questions regarding the Pay Transparency Directive, the question of its relationship to individual employees’ right to privacy and the GDPR would be pretty high up there.

The concern is clear: the Directive requires employers to share averages of wages of male and female employees per category of employees, either at the request of an individual employee or as part of the (tri-) annual pay reporting. But what should you do if the number of employees of a certain gender in a specific category is very low, and sharing the data per category thereby indirectly comes down to sharing individual employees’ pay data with their colleagues?

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Workplace Recording Policy Gets Thumbs Up From NLRB Judge (US)

By Chase Clark on Posted in Employment Law, NLRA, NLRB

For a variety of reasons, including confidentiality and protection of trade secrets, many employers maintain policies that prohibit or limit employees from making audio or visual recordings in the workplace. These policies were targeted by the National Labor Relations Board (NLRB) under the previous Administration, which found them unlawful under the employee and union-friendly standard established under the NLRB’s 2023 decision in Stericycle, Inc. (see our discussion of that decision here). That case did away with the previous test for employer policies under Boeing Co. and LA Specialty Produce Co. and substituted a test that essentially presumes that employer policies that limit employee activities in the workplace, such as workplace recording policies, have an unlawful “reasonable tendency to chill” employees in the exercise of protected rights, unless the employer can show that its policy serves a “legitimate and substantial business interest” that cannot be addressed through more “narrowly tailored” rules.

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Rethinking Summary Judgment in Employment Discrimination Litigation (US)

By Isabela Gibson on Posted in Discrimination, EEOC, Retaliation, Termination

When Congress passed Title VII of the Civil Rights Act of 1964, it failed to address how a plaintiff is required to prove employment discrimination in the absence of direct evidence. Since then, a series of tests have evolved articulating how a plaintiff can defeat a defendant-employer’s motion for summary judgment relying on circumstantial evidence. The most famous of these is the McDonnell Douglas framework, referring to the burden-shifting test articulated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 92 (1973). In that case, the Supreme Court held that, in a private, non-class action alleging discrimination under Title VII, the complainant has the burden of establishing a prima facie case, i.e., that (i) they belong to a protected class; (ii) they were qualified for the position they held or sought; (iii) though qualified, they were rejected or suffered another adverse employment action; and (iv) the employer sought candidates with complainant’s qualifications or replaced them with a person outside their protected class. Once the complainant has satisfied their prima facie burden, the burden of production shifts to the employer to advance a legitimate, non-discriminatory explanation for the challenged employment action. If it does so, the burden returns to the complainant to establish that the employer’s explanation is pretextual, meaning that it is false and that discrimination was the real reason for the adverse action.

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