Employment Law Update
Severance Agreements in This Day and Age
What do your employee settlement agreements look like today? Chances are, after the National Labor Relations Board (NLRB) issued its groundbreaking McLaren Macomb decision last year, your agreements got somewhat of an overhaul. (If not, now’s the time.)
This is not our first time covering this seminal decision—but now, we have new guidance straight from the source. The author of this update recently received key advice from an NLRB investigator, starting with the reminder that settling parties should “keep in mind Board principles when writing the settlement, specifically those espoused in Memorandum OM 07-27 and recently in McLaren Macomb.” The investigator stressed the following points:
· A severance-agreement non-disparagement provision prohibiting an employee from making any statements “that could disparage or harm the image of the employer” to other employees or the general public is unlawfully overboard.
· A severance-agreement confidentiality provision broadly prohibiting the employee from disclosing the terms of the agreement “to any third person” is unlawful as well, because that provision could stop the employee from discussing the terms of the agreement with former coworkers who find themselves facing similar predicaments.
· A severance-agreement confidentiality provision should be limited to preventing the disclosure of “the financial terms of the settlement as set forth in OM 07-27.”
In addition to those useful reminders, the investigator also offered a word of caution: “I have repeatedly seen parties enter into non-Board settlement agreements containing overbroad confidentiality and non-disparagement provisions,” he stated, “which has led the NLRB to refuse to approve negotiated-for withdrawal requests of the underlying charges.”
The NLRB Says Consent Orders are Off the Table
The reminders above are particularly timely given another recent groundbreaking decision issued by the NLRB. For decades prior to this new decision, called Metro Health for short, employers had been able to propose unilateral settlement terms (that is, consent orders)—without general-counsel or charging-party approval—to the administrative law judge (ALJ) hearing a National Labor Relations Act (NLRA) dispute. After carefully reviewing those terms, the ALJ had the power to approve them if they were reasonable and effectuated the purposes of the NLRA.
In Metro Health, however, the NLRB did away with the practice of consent orders altogether. “[T]he practice of accepting consent orders seems contrary to the language of the board’s Rules and Regulations, creates administrative difficulties and inefficiencies, and tends to interfere with the prosecutorial authority of the General Counsel,” the agency stated.
Parties who previously had three avenues to resolve these charges are now left with only two: negotiating for a bilateral settlement agreement or proceeding to litigation. Note that the NLRB made its decision both prospective and retroactive—so the consent-order bar applies not just to future cases, but also to all cases currently pending before the NLRB.
A Different Downside to Remote Work
Remote work seems to be here to stay. So, too, do employer concerns with it.
Are remote workers able to communicate effectively? Do distractions at home make them less productive than their in-office peers? What challenges do they face collaborating with teams and managers? How does remote work affect company culture? Those are the types of questions leaders focus on when their employees work remotely.
As a recent Arizona headline demonstrates, however, there are flip-side concerns to consider too. In late August, a report broke that a Tempe-based Wells Fargo employee, who was working in the office while most of her coworkers chose to work from home, tragically passed away at her desk and was not found by building security staff until four days later. After the employee scanned in to work on Tuesday morning, her badge records indicate she never left again.
The story provides a sad (and extreme) reminder of a guiding principle we should all keep in mind while structuring our remote-work and flex policies. Right from the start, we should evaluate—and then work to preempt, prevent and proactively address—our policies’ blind spots. If employees are allowed to work remotely (or in-office while others are telecommuting), what safeguards are in place to ensure they’re not left completely unattended? What other measures (including clock-in/clock-out alerts) are in place to provide HR ways to check in on employees who either inadvertently—or, as here, critically—log many days of work in a row without ever clocking out? Think through those remote-work considerations as well.
Hot Off the Press OSHA Guidance
The Occupational Safety and Health Administration (OSHA) is the federal agency tasked with reviewing and regulating workplace conditions across the country. At the end of August, OSHA released a new proposed rule targeting heat injury and illness prevention.
As the agency reports, “[m]illions of U.S. workers are exposed to heat in their workplaces,” and “[a]lthough illness from exposure to heat is preventable,” thousands of American employees “become sick from occupational heat exposure, and some cases are fatal.” The proposed rule, which applies to both outdoor and indoor work settings, includes requirements for employers to both develop heat illness and injury prevention plans and to follow specific requirements for rest breaks. In addition, the rule requires employers to provide employees with 15-minute paid breaks every two hours anytime the heat index rises to 90ºF or higher.
What do you think? The notice-and-comment rulemaking process is an interactive one—and the agency encourages you to weigh in. OSHA’s online feedback portal is open now and will remain open to employers, interested parties and members of the public until Dec. 30, 2024.
Who’s an Employee Now?
Collegiate athletes are, as of late, newly-recognized employees. Now, at least some graduate students are set to join their ranks.
The Sixth Circuit recently reversed a decision by the Southern District of Ohio in which the lower court concluded that a graduate student who performed research in the course of her studies but was not designated an employee by the university, was not an employee for the purposes of the claims she raised under Title VII of the Civil Rights Act of 1964 (Title VII). The student alleged that her academic advisor sexually harassed and assaulted her while she pursued her Ph.D. The Sixth Circuit held that, although the graduate student was not intended to be performing work or services under the control of Ohio State, she was a common-law employee of the university for the purposes of Title VII liability given the research she undertook.
The Sixth Circuit began its analysis of the student’s employee status by noting that the school’s preferred characterization of the student’s status as a non-employee was irrelevant. Although the student’s admission letter “outlined a purely academic relationship,” a holistic evaluation of the student’s relationship with Ohio State revealed that she had performed research for the institution, which provided “significant economic benefit” to the school—and, contrary to the district court’s finding, that research “could be simultaneously an academic and employment activity.”
The court also noted that although the student’s advisor guided her academically, the bulk of their interactions “focused on . . . research and meetings” related to Ohio State’s “regular business.” Moreover, Ohio State exercised the type of control an employer would, through the advisor, by directing the student’s research topics, setting the times and location of her research and generally exercising “the type of control” that made the student a common-law employee. Finally, the court pointed to the student’s receipt of both a stipend and a discretionary bonus in connection with her research as a fact indicative of an employment relationship.
