As has been widely reported, including in our February E-Update, the National Labor Relations Board recently asserted that severance agreements may not contain general non-disparagement or confidentiality/non-disclosure clauses, based on its premise that such clauses violate the rights of employees under Section 7 of the National Labor Relations Act to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity”). This ruling was troubling for unionized and non-union employers alike. General Counsel Jennifer Abruzzo has now issued a memo expressing her views regarding the practical impact of this ruling.

Continue Reading NLRB General Counsel Provides (Some) Clarification on Severance Agreement Non-Disparagement and Confidentiality Provisions

In repurposing an always-popular topic (and, as we have done with last year’s March Madness tournament) we offer employers some guidance on March Madness at work, this time with some improvements and updates on gambling and productivity, and a brand new drug and alcohol section. 

Continue Reading A Revised Updated Employer’s Guide to March Madness

When I was first practicing law, I quickly learned that the answer to many legal questions under National Labor Relations Act depends on which Board’s decision you pick. If the Board has a majority of Members (the name for those people who issue decisions) appointed by a Republican President, I was likely to find an answer that would please my management clients (and the partner who asked me to do the research). By contrast, if the Board’s majority was comprised of appointees named by a Democrat President, the outcome would vex my clients. In other words, the “rules of the game” shift with administrations.

Continue Reading Say What? NLRB Rules Employees May Tape Record Others in Violation of State Law.

On February 22, 2023, the U.S. Supreme Court issued its opinion in Helix Energy Solutions Group, Inc. v. Hewitt, clarifying that, in order to qualify for the highly compensated employee (HCE) exemption from the Fair Labor Standard Act’s overtime mandate, the employee must be paid on a salary basis, and the payment of a daily rate does not constitute a salary.

Continue Reading Supreme Court Provides Clarification on the Highly Compensated Employee Exemption’s Salary Requirement

There have been a couple of interesting situations in the news recently involving employees who have been ordered by a court to repay wages to their employers. One involved a Canadian employee who submitted fraudulent timesheets. Another involves law firm associates who failed to meet their billable hours requirement. And a third involves police officers in a New York town who swiped time clocks for each other to falsely claim time worked. These cases provide some insights for employers – good and bad.

Continue Reading Can You Force Employees to Repay Wages?

On February 9, 2023, the U.S. Department of Labor issued guidance on how to comply with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) as to teleworking employees. Although intended for DOL staff, the Field Assistance Bulletin (FAB) provides employers with insight into the DOL’s position on issues arising under these two laws, including: (1) compensation under the FLSA, (2) protections under the FLSA that provide reasonable break time for nursing employees, and (3) eligibility rules for teleworking employees under the FMLA.

Continue Reading The DOL Issues Guidance on Telework

Well, Super Bowl Sunday is almost here. Unlike March Madness or the World Cup, which extends over weeks, it’s a single event. However, there’s a high level of interest in the game – last year, the NFL estimated that approximately two-thirds (!!!) of the U.S. population watched the Rams defeat the Bengals in Super Bowl LVI. (And those of us on the East Coast stayed up late to do so). So, we can still expect the Super Bowl to have an impact in the workplace. And as we did for March Madness and the World Cup, we offer employers a little guidance on the Super Bowl at work.

Continue Reading An Employer’s Guide to the Super Bowl

As a follow up to Fiona Ong’s blog post detailing the highly disturbing (but sadly not surprising) treatment[1] of an associate who interviewed for and accepted a new position while on parental leave, this blog post focuses on how employers can best support their employees who have taken parental leave—both those who have given birth and those who take caregiving leave and are adjusting to new responsibilities as a parent. As an employment lawyer and mom who returned to full-time work after having three children, here are some tips to support your new parents in the workplace.

Continue Reading Maternity Leave ≠ Sitting on Your Ass: Part II

I’ve previously written about an employer’s obligation to accommodate service or emotional support animals in the workplace, as well as guidelines the employer should consider if it finds itself on the receiving end of such a request.  At the time of that blog post, the EEOC had filed suit in the Northern District of Iowa alleging that a national trucking conglomerate failed to accommodate, refused to hire, and then retaliated against a veteran truck driver because he used a service dog, in violation of the Americans with Disabilities Act (“ADA”). (The ADA both prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to such employees to enable them to perform their essential job functions or enjoy the privileges and benefits of employment.) That case ultimately resulted in a negotiated settlement and consent decree in March 2019.  More recently, in July 2022, the EEOC filed suit against arts-and-crafts retailer Hobby Lobby alleging that it violated the ADA by refusing to provide reasonable accommodations and by terminating a cashier who relied upon a service dog to assist her with symptoms caused by post-traumatic stress disorder, anxiety, and depression. 

Continue Reading Support/Service Animals in the Workplace – What Should Employers Do?