Administrative Law

NLRB Issues Ruling Prohibiting Non-Disparagement and Confidentiality Provisions in Severance Agreements

Megan Shaked Leave a comment

By Megan S. Shaked

Over the last few years, we have seen states enact various restrictions on confidentiality and nondisparagement clauses in employment agreements. These changes were made in the wake of the #MeToo movement and in an effort to reduce perceived barriers to workers’ ability to raise claims for unlawful conduct in the workplace.

Last week, the National Labor Relations Board (NLRB) ruled that a severance agreement containing nondisparagement and confidentiality provisions is unlawful under the National Labor Relations Act (NLRA).

The main issue was whether the employer violated the NLRA by offering a severance agreement to 11 bargaining unit employees it permanently furloughed. The agreement broadly prohibited the employees from making statements that could disparage the employer. The agreement also prohibited the employees from disclosing the terms of the agreement.

In examining the language of the severance agreement at issue, the Board ultimately concluded that the nondisparagement and confidentiality provisions “interfere with, restrain, or coerce employees’ exercise of Section 7 rights.” The Board reasoned that because the agreement conditioned the receipt of severance benefits on the employee’s acceptance of the unlawful provisions, the respondent’s proffer of the agreement violated the NLRA.

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Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Theresa Green Leave a comment

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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[Webinar] Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation

Theresa Green Leave a comment

On Wednesday, November 16, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Megan S. Shaked for a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn about: Continue reading →

New DOL Rule on Classifying Employees, Independent Contractors

Darius Rohani-Shukla Leave a comment

On October 13, 2022, the Department of Labor (the “DOL”) published its proposed rule on classifying employees and independent contractors. This rule would update the factors analyzed when determining whether a worker is an independent contractor or an employee under the Fair Labor Standards Act (the “FLSA”). 

DOL’s press release revealed that when drafting this rule, it focused on preventing employee misclassification as independent contractors, preserving worker rights, and providing a consistent approach to resolving FLSA cases. Specifically, Secretary of Labor Marty Walsh said: 

“While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers… Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages. The Department of Labor remains committed to addressing the issue of misclassification.”

Under the newly proposed rule, “an employer suffers or permits an individual to work as an employee if, as a matter of economic reality, the individual is economically dependent on that employer for work.” The rule differentiates employees from independent contractors in stark terms – explaining that an independent contractor is only a worker who is “as a matter of economic reality, in business for themselves.” 

Notably, the rule sets forth a six-factor test to guide any assessment of the economic realities of the working relationship between a worker and an employer. Those six factors are:

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Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

Theresa Green Leave a comment

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

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New DOL Proposed Rule Reverses Course on Treatment of Tipped Employees

Lindsay A. DiSalvo Leave a comment

On Monday, June 21st, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking (“NPRM”) that would alter regulations interpreting who is considered a “tipped employee” under the Fair Labor Standards Act (“FLSA”) yet again.  Specifically, the NPRM proposes (1) to withdraw the dual jobs Picture1portion of the Final Rule promulgated in December 2020; and (2) a new regulatory framework by which to determine whether an employee is performing work that meets the definition of a tipped occupation and allows the employer to take a tip credit under the FLSA.  Specifically, the FLSA allows an employer to pay a tipped employee less than the minimum wage – specifically $2.13 per hour under Federal law – only when the worker is engaged in a tipped occupation because the tips the employee receives should make up for the rest of minimum wage hourly rate.  The NPRM creates a revised standard by which an employer would determine who is a “tipped employee” and for what portion of that employee’s work hours the employer can take a tip credit and pay the employee at the lower rate.  The standard the DOL proposes to adopt generally reflects the interpretive guidance it maintained for decades before a new standard was established during the Trump Administration – the “80/20 Rule” – along with some other changes that the DOL asserts better define tipped work. 

Background of the Dual Jobs Standard for Tipped Employees

Under the FLSA, “tipped employees” are defined as those employees who customarily and regularly receive more than $30 a month in tips.  As stated, employers can pay tipped employees a reduced cash wage and claim a “tip credit” to make up the difference between the reduced cash wage and hourly minimum wage.  When the DOL first published its regulations on application of the tip credit, it directly addressed the scenario where an employee has “dual jobs” under 29 C.F.R. 531.56(e) – two jobs for the same employer.  In that situation, employers can take the tip credit only for the tipped job (i.e., the one routinely satisfying the $30-a-month provision).  Later, the DOL revised its Field Operations Handbook (FOH), vastly broadening the scope of its “dual jobs” distinction by applying it to dual tasks.  It stated that when “tipped employees spend a substantial amount of time (in excess of 20%) performing preparation work or maintenance, no tip credit may be taken for the time spent in such duties.”  This is what’s known as the “80/20 rule.”

The DOL enforced this interpretation until 2018 when Continue reading →

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

Theresa Green Leave a comment

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.

2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th
Marijuana, Drug Testing and Background Checks

Tuesday, July 13th
COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th
Employee Misconduct Defense & Employment Law

Wednesday, August 11th
Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th
Employee Handbooks, Training and Internal Audits

Tuesday, September 21st
Withdrawal Liability Pensions

Wednesday, April 14th
NLRB Update

Tuesday, October 19th
ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th
Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th
What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th
Recap of Year One of the Biden Administration

Tuesday, December 14th
   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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The PBGC Acts to Level Withdrawal Liability’s Procedural Playing Field

Mark Trapp Leave a comment

shutterstock_pensionThe recent action by the Pension Benefit Guaranty Corporation (“PBGC”) to rein in run-away filing fees imposed by the American Arbitration Association (“AAA”) brings to mind Homer Simpson’s declaration that alcohol was “the cause of, and solution to, all of life’s problems.” In a like manner, the PBGC can be seen as the cause of, and now (happily) the solution to, the very steep filing fees previously imposed by the AAA on withdrawn employers.

By way of background, for many years, employers assessed withdrawal liability faced a Hobson’s choice: either pay the fees demanded by the AAA to initiate arbitration, or forego any chance to challenge the assessment. Of course, by failing to initiate arbitration, the amounts demanded by the pension fund become, in the words of the statute, “due and owing on the schedule set forth by the plan sponsor.”

This unpleasant situation for employers – pay up, or else – was set in motion by a PBGC regulation that allows pension funds to impose the AAA rules (and the required filing fees) on withdrawn employers. That regulation purports to allow Continue reading →

DOL Releases Final Rule for Determining Joint Employer Status

Beeta B. Lashkari Leave a comment

Department of LaborEarlier this week, on January 12, 2020, the U.S. Department of Labor (DOL) announced the release of its final rule revising and updating its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA).  According to DOL, “The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.”  The DOL published its Notice of Proposed Rulemaking (NPRM) on April 9, 2019, and received over 12,000 comments within the 30-day comment period.  The final rule becomes effective on March 16, 2020, 60 days after publication in the Federal Register today, January 16, 2020.

As a threshold matter, under the FLSA, an employee working for one company may be found to be the joint employee of a second, independent company, depending on the nature and extent of control over the employee’s work.  Joint employer status is important for numerous reasons, including the fact that a joint employer can be held joint and severally liable for FLSA wage and hour obligations.  In 1958, DOL published an interpretive regulation, 29 C.F.R. § 791, explaining that joint employer status depends on whether multiple persons are “not completely disassociated” or “acting entirely independently of each other” with respect to the employee’s employment. 

Specifically, the regulation provided three situations where two or more employers are generally considered joint employers: (1) where there is an arrangement between the employers to share the employee’s services (e.g., to interchange employees); (2) where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.  The DOL issued its NPRM out of concern that Continue reading →

SSA No-Match Letters Are Back: How Should Employers Respond?

Kara Maciel Leave a comment

Capitol BuildingRecently, the Social Security Administration (SSA) resumed their practice of sending Employer Correction Requests (informally “no-match letters”) to employers advising them that information submitted on an employee’s Form W-2 does not match SSA records.  The SSA stopped sending no-match letters in 2012, but in recent months, employers across many industries have received letters.

The no-match letter states that there is an error with at least one name and the Social Security Number (SSN) on a W-2 that is submitted by the employer.  Importantly, the no-match letter does not imply that the employer or the employee intentionally reported incorrect information.  They are educational in nature to advise employers that a correction may be needed for the SSA to post the correct wages to the right record because discrepancies could occur due to typographical errors, unreported name changes (such as changes due to marriage or divorce) and inaccurate employer records.

If your company has received a no-match letter, consider taking the following action: Continue reading →