COMPANIES THAT USE noncompete agreements to limit workers’ future employment prospects can expect greater legal scrutiny now that a second federal agency has marked the restrictive covenants as enforcement targets, Robert Iafolla and Dan Papscun report.

• National Labor Relations Board General Counsel Jennifer Abruzzo said this week that noncompete pacts violate federal labor law, with narrow exceptions. Read Abruzzo’s Memo
• Her statement isn’t binding precedent. But the problem for private employers subject to the labor board’s authority is the immediacy of the enforcement threat.
• The Federal Trade Commission is developing a rule that would ban noncompete agreements economy-wide, with the commission eyeing April 2024 for a vote on a final rule. By contrast, employees can now file an unfair labor practice charge with the labor board, which begins the enforcement process, said Catherine Fisk, a University of California, Berkeley Law School professor.
• “Many noncompete agreements that were formerly arguably lawful are now void,” Fisk said. “That is, they’re an unfair labor practice, so any effort to enforce could presumably draw an unfair labor practice charge.” Read More

THE FTC WILL LIKELY have to prevail in court in order to enforce a regulatory ban on noncompetes. The US Chamber of Commerce and other business groups have vowed to fight a final rule in court.

• The first episode in a new series of our UnCommon Law podcast explores the legal debate over noncompete agreements, and the question of whether the FTC has the legal authority to institute a sweeping ban. Listen Here

THE DEBT CEILING DEAL includes rare legal protections for a pipeline project championed by Sen. Joe Manchin (D-W.Va.): it orders the approval of permits to complete and operate the gas-transmission system, strips courts of the power to review the permits, and directs any challenges to those legislative provisions to the D.C. Circuit.

• That creates uncomfortable political optics for Senate Democrats, all but a handful of whom voted for the bill after an amendment to cut the Mountain Valley Pipeline text was defeated. Several members of the Democratic caucus have railed against conservative efforts to funnel lawsuits to sympathetic judges, including in cases challenging abortion pills and protections for LGBTQ people, Lydia Wheeler reports. Read More
• Congressional authorization of project permits raises the bar for challenges by opponents and bigfoots state environmental laws that have been at the heart of litigation over the pipeline at the Fourth Circuit. Manchin’s power play follows a roadmap established more than 30 years ago to lock down another controversial Appalachian energy project, Daniel Moore reports. Read More

DON’T ASSUME most women leave law firms for full-time caregiving, Brittany Johnson writes in her latest Stated Differently column. Drawing on a recent survey, Starbucks’ corporate counsel director writes that many female lawyers simply find themselves in a rigid work environment where their personal and professional obligations can’t seem to coexist.

• Improving the process of returning from parental leave is essential to retention, Johnson writes. “Creating a supportive environment that retains parents—particularly new mothers—requires normalization of working parenthood from the start,” she writes. “This means empowering individuals to make decisions that support their own and their family’s well-being without repercussion or judgment.” Read More

LAST MONTH ALONE, three large firms announced plans to expand parental leave for employees. It’s a sign that firms are wising up to the recruiting and retention benefits of extensive leave policies, said Jennifer Henderson, a partner at legal recruiting firm Hatch Henderson Fivel, told Tatyana Monnay.

• But whether to take all available leave can be an agonizing decision for lawyers, as some fear being passed over for opportunities, bumped from the partner track, or pressured over their priorities. The larger issue is for firms to create cultures in which lawyers feel empowered to take leave.
• “I know lots of firms that have lots of good policies,” said Lauren Stiller Rikleen, a law firm leadership consultant. “I know lots of lawyers who think they’re not worth the paper they’re printed on.” Read More

DOUBTS ABOUT THE VERACITY of AI-produced legal work and other risk factors led at least two prominent firms—Squire Patton Boggs and Mintz Levin—to prohibit use of ChatGPT. Yet generative AI tools are making inroads in Big Law: 17 firms told Skye Witley they allow their lawyers to use ChatGPT, with certain limitations. Read More

EXECUTIVES AT LEADING companies in artificial intelligence touched off significant debate this week with a single-sentence statement that warned of potential harms to humanity if mitigation measures aren’t handled as a “global priority.”

• Bloomberg Law’s latest video story considers the challenge US regulators and lawmakers will face to design a regulatory framework after amassing an undistinguished record in adapting regulations to fit emerging technology. Watch it Here

https://www.youtube.com/watch?v=ZLCfasjTWvY

AND BECAUSE AI is everywhere these days, here are a few more stories we found interesting:

• AI Imitating Artist ‘Style’ Drives Call to Rethink Copyright Law
• Attorneys Must Certify AI Policy Compliance, Judge Orders
• Generative AI Debate Braces for Post-Warhol Fair Use Impact

Blot on Pride Month?: Pride month celebrations are a cherished tradition for LGBTQ+ communities each June, but Southwestern Law School’s Hila Keren says Pride is overshadowed this year by discriminatory state bills and worry over a pending US Supreme Court decision.

On Dirty Money: Transparency International’s Scott Greytak says Congress and the ABA missed an opportunity to subject lawyers to anti-money laundering rules, and that US lawyers are often “go-to middlemen” for financial crimes.

Recusal Review: Emory Law’s Michael Broyde proposes a check on disputed Supreme Court recusal decisions, saying a panel of chief judges of the US circuit courts of appeal could provide external review.

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