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Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm's Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Contact:Read more about Lindsay BurkeEmail

On Friday, California Governor Gavin Newsom signed SB 399, the “California Worker Freedom from Employer Intimidation Act” (the “Act”) that should be of interest to any company with employees in the state. The Act, which takes effect on January 1, 2025, adds a new section to the California Labor Code to prohibit employers from taking or threatening adverse employment action against an employee because the employee refuses to attend employer meetings about, or to participate in, receive, or listen to, any communications about the employer’s opinion on religious or political matters. The law is similar to, but broader than, laws in several other states that attempt to decrease the influence of “captive audience” meetings communicating an employer’s political or religious opinions.Continue Reading California Joins Growing List of States Prohibiting Employer Action Against Employees Who Refuse Political or Religious Communications

On September 9, 2024, the SEC announced settled enforcement actions against seven companies for violating the SEC’s whistleblower rules.[1]  Specifically, the SEC alleged that the companies had provisions in various kinds of agreements with employees, including employment, separation, and settlement agreements, that purport to restrict, and thereby could potentially discourage, employees and other signatories from reporting information to government investigators or participating in a whistleblower award.Continue Reading SEC Enforcement Sweep Reaffirms Focus on Anti-Whistleblower Provisions in Employee Agreements

Nationwide Injunction

On August 20, 2024, Judge Ada Brown of the United States District Court for the Northern District of Texas granted summary judgment for the plaintiffs in Ryan LLC v. FTC, preventing the FTC from enforcing its proposed rule banning almost all non-compete clauses in employer agreements. (Click here for the opinion.) The rationale for Judge Brown’s decision was consistent with her prior ruling on plaintiffs’ motion for a preliminary injunction (described here): the FTC does not have substantive competition-related rulemaking authority and the proposed non-compete rule was arbitrary and capricious. However, unlike Judge Brown’s preliminary injunction order, which was limited to the named plaintiffs, her summary judgment order states that the proposed rule “shall not be enforced or otherwise take effect on September 4, 2024, or thereafter.” Applying the plain text of § 706(2) of the APA, Judge Brown held that the proper remedy after concluding that the non-compete rule was in excess of the FTC’s statutory authority and arbitrary and capricious was to “set aside” the rule. According to the opinion, “setting aside agency action under § 706 has ‘nationwide effect,’ is ‘not party-restricted,’ and ‘affects persons in all judicial districts equally.” As a result, the order prohibits the FTC from enforcing the proposed non-compete rule on a nationwide basis.Continue Reading Texas District Court Prohibits the FTC from Enforcing Its Non-Compete Ban Nationwide

On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule that increases the salary thresholds required to classify certain employees as exempt from overtime pay requirements under the Fair Labor Standards Act (FLSA).  The final rule, applicable to employees who otherwise satisfy the “white-collar” (bona fide executive, administrative, and professional) and “highly compensated” exemptions, is similar to the proposed rule DOL issued last August, although the salary thresholds in the final rule have been increased to align with the latest Census salary data.

The final rule represents a sharp increase—approximately 65%—from the current salary thresholds implemented in 2019 under the Trump Administration.  The rule is scheduled to take effect in two phases, with the first phase effective July 1, 2024 and the second on January 1, 2025.  Thus, employers have only a small window to determine how the rule will impact their operations and make any necessary adjustments.Continue Reading DOL Issues Final Rule Expanding Overtime Eligibility

Since 2020, with the adoption of Washington state’s non-compete statute (Chapter 49.62 of the Revised Code of Washington (“RCW 49.62”)), Washington has imposed significant restrictions on employer use of non-compete agreements with employees and independent contractors, permitting such agreements only subject to certain statutory and common-law requirements, including without limitation, a minimum annual earnings threshold (the 2024 limits are $120,559.99 for employees and $301,399.98 for independent contractors), and a Washington forum for any disputes.

Now, Senate Bill 5935 (“SB 5935”) – which takes effect on June 6, 2024 – amends the non-compete statute to further restrict the use of non-compete provisions and expand the types of agreements that may be considered non-competes. As a result, employers will need to take quick action to review their employment agreements and hiring processes to ensure compliance with the new law.

However, as discussed in our Covington Alert, on April 23, 2024 the Federal Trade Commission issued a final rule purporting to ban the use of non-competes with most U.S. workers.  The FTC Rule – should it become effective – would supersede inconsistent state laws.  The earliest the FTC Rule would take effect is late August 2024, and pending legal challenges may result in court orders that could delay or stay enforcement of the FTC Rule. Accordingly, employers with workers in Washington State should take steps to comply with SB 5935 before it takes effect on June 6, 2024.  Employers should also consider consulting with employment and executive compensation counsel for assistance with navigating the evolving non-compete landscape.

Here is an overview of the key changes under SB 5935:Continue Reading Changes to WA’s Non-Compete Law Require Employers to Take Action

In a unanimous decision, the U.S. Supreme Court rejected an argument that would have made it harder for whistleblowers to prevail on retaliation claims under the Sarbanes-Oxley Act (“SOX”). The decision, Murray v. UBS Securities, LLC, No. 22-660, may be welcome news to whistleblowers, but as a practical matter, employers will likely not see a significant change in SOX whistleblower retaliation claims or awards.Continue Reading The Supreme Court Keeps Status Quo for SOX Whistleblower Retaliation Claims

In its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina[1] issued on June 29, 2023, the Supreme Court held that the undergraduate admissions programs of Harvard College and the University of…

Continue Reading Considerations for Employers Following the EEOC’s Response to the Supreme Court’s Ruling on Race-Conscious College Admissions

As interest rates rise and the threat of a recession looms, many employers are beginning to struggle with balancing the cost of maintaining their workforce with an expected decrease in profits. The frequent result of such a balancing act is a mass layoff. While a reduction in workforce may be inevitable, below are options that employers can consider to try to avoid that outcome. For all of these alternatives, employers should apply any changes consistently across the workforce to avoid claims of inequity or discrimination.Continue Reading Avoiding Layoffs In an Uncertain Economy

A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court.  On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”).  The Act amends the Federal Arbitration Act (“FAA”) to provide that predispute arbitration agreements and predispute joint-action waivers relating to sexual assault and sexual harassment disputes are unenforceable at the election of the person or class representative alleging the conduct.  The Act took effect immediately upon signing.
Continue Reading New Law Ends Mandatory Arbitration for Sexual Assault and Sexual Harassment Claims

Pursuant to a new Order issued by New York City’s Commissioner of Health and Mental Hygiene, beginning December 27 workers in New York City who perform in-person work or interact with the public in the course of their work must provide proof of at least one dose of a COVID-19 vaccination before entering the workplace.  Workers then have 45 days to show proof of their second dose if they received either the Pfizer or Moderna vaccine.  The Order requires employers to exclude from the workplace any worker who has not provided proof of vaccination or been granted a religious or medical accommodation to the vaccine mandate, as well as workers who do not provide proof of a second Pfizer or Moderna dose within 45 days of submitting proof of the first dose.
Continue Reading New York City Announces Workplace COVID-19 Vaccination Requirement