Home Posts tagged NLRB

Time to Inspect Workplace Policies

By Contributor
Opinion

By Michael Lewis, Esq.

Federal workplace enforcement has picked up speed. The EEOC continues to pursue discrimination, accommodation, and retaliation claims. OSHA has renewed its focus on heat hazards. The NLRB has adjusted charge-handling guidance in ways that can shape how workplace disputes start, spread, and settle. For employers, the point is simple: now is the right time to inspect your policies, your records, and the choices your managers make every day.

The risk rarely begins in court. It usually begins earlier, with a charge, an inspection, or a demand for records. At that stage, agencies tend to look for the same things: a written policy, a clear paper trail, and proof that the company followed both. When the file tells a scattered story, the problem grows. When the handbook says one thing and supervisors do another, the gap invites scrutiny.

The EEOC’s recent activity reflects a steady push toward disability issues, retaliation claims, and broader workplace practices, not just one-off incidents. That should force a hard question. If an employee requests an accommodation tomorrow, would your managers know the next step? If an employee reports bias, would your team respond and document the response in a way that holds up under scrutiny? A policy alone will not carry the day. Your records, training, and follow-through will do that work.

OSHA’s renewed attention to heat hazards carries the same lesson. Employers with outdoor crews or hot indoor worksites should not treat heat as a seasonal annoyance. They should treat it as a safety issue that requires a concrete plan. Water, rest, training, supervisor awareness, and site-level judgment all count. So does documentation. If an inspector arrives after a stretch of high heat, you will want more than a binder on a shelf. You will want records that show what your company actually did.

Labor enforcement also remains active, even for non-union employers. Many business owners still assume labor law concerns only union shops. That assumption can create avoidable risk. Employee complaints about pay, schedules, staffing, safety, or workplace rules can raise labor issues in an ordinary workplace. When a manager reacts too quickly or writes a rule too broadly, a routine personnel issue can turn into a charge.

Prevention carries real value. A sound handbook, current policies, manager training, and disciplined recordkeeping can stop problems before they spread. They can also put an employer in a far stronger position when an agency comes calling. Early review usually costs far less than late repair.

Now is a smart time to ask a few blunt questions. Do your accommodation procedures work in practice? Do your wage-and-hour records hold together? Do your safety policies match conditions on the ground? Do your managers document facts, or do they leave gaps for someone else to fill?

Business owners do not need more paper for paper’s sake. They need policies that fit the workplace, records that tell a clear story, and guidance that catches trouble early. A focused review now can spare a great deal of cost, distraction, and strain later. Early attention often marks the difference between a contained problem and a long, expensive fight.

Attorney Michael Lewis is an associate in the Springfield office of Halloran Sage. His practice areas include litigation and dispute resolution, labor and employment, discrimination claims, non-competes and restrictive covenants, and labor disputes.

Decision Restricts on Non-Disparagement, Confidentiality Clauses

By Contributor
Law

Case in Point

By Mary Jo Kennedy and Briana Dawkins

 

A recent decision by the National Labor Relations Board (NLRB), McLaren Macomb, has employers in both union and non-union settings reviewing non-disparagement and confidentiality provisions used in their employee-separation agreements for possible legal challenges.

Mary Jo Kennedy

Brianna Dawkins

Brianna Dawkins

In February of this year, the NLRB held that the severance agreements at issue in McLaren Macomb violated the National Labor Relations Act. The employer, a hospital, offered severance agreements to union employees being furloughed that required them to waive certain rights under the act. The agreements included provisions that prohibited furloughed union employees from making statements that could disparage or harm the image of the hospital and prohibited employees from disclosing the terms of the agreement.

The NLRB found that those provisions were overly broad, unlawfully restrictive, and coercive on the employees’ ability to exercise their rights under Section 7 of the act. Section 7 protects the ability of employees and former employees to discuss terms and conditions of employment with co-workers. More broadly, Section 7 affords employees a wide range of protection, including communications with third parties “where the communication is related to an ongoing labor dispute and when the communication is not so disloyal, reckless, or maliciously untrue.”

The NLRB’s decision in McLaren Macomb makes clear that a severance agreement that has a reasonable tendency to interfere, restrain, or coerce the exercise of Section 7 rights by employees is unlawful. An employer that proffers a severance agreement with provisions that would restrict employees’ exercise of their rights under the act may be found in violation of the act. The decision states that it is immaterial whether an employee accepts the agreement. It remains uncertain whether any courts will uphold McLaren Macomb.

“The NLRB’s decision in McLaren Macomb makes clear that a severance agreement that has a reasonable tendency to interfere, restrain, or coerce the exercise of Section 7 rights by employees is unlawful.”

One month after issuance of the McLaren Macomb decision, the NLRB’s general counsel issued a guidance in response to inquiries about the McLaren Macomb decision, which responded to some inquiries regarding the decision’s impact. While not binding or controlling, some key points referenced in this guidance are:

• The McLaren Macomb decision applies to existing separation agreements. The general counsel suggests employers should proactively consider contacting those subject to severance agreements with overly board provisions in order to advise them that the provisions are null and void and that the employer will not seek to enforce the agreements or pursue any penalties;

• Because of the inequality of bargaining power between employees and their employers, it is the role of the NLRB to act “in a public capacity to protect public rights to effectuate the public policy of the act.” Even if the employees agree to broad confidentiality or non-disparagement provisions, the rights of the public may not be waived in a way that precludes the future exercise of Section 7 rights;

• Provisions in any employer communication to employees that tend to interfere with, restrain, or coerce employees’ rights under Section 7, if not narrowly tailored, may also be prohibited under Section 7 of the act;

• Confidentiality provisions that are narrowly tailored to restrict the disclosure of proprietary or trade-secret information, and include a time frame on such a restriction, may be considered lawful; and

• Non-disparagement clauses that are narrowly tailored and limited to employee statements about the employer that meet the definition of defamation, as set forth in McLaren Macomb, may be lawful.

With regard to supervisors who are generally not protected under the act, the guidance notes that they would be covered in situations in which an employer retaliates against a supervisor for refusing to act on the employer’s behalf in committing an unfair labor practice under the act. Supervisors, as defined by the act, are individuals who have authority requiring independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees in the interest of the employer, or to adjust their grievances, or to effectively recommend such action.

Accordingly, to ensure enforceability of its severance agreements, it is important for employers to classify its employees appropriately with respect to their responsibilities and not solely based on their job titles. Nonetheless, employers may continue to negotiate broader non-disparagement and confidentiality agreements in communications with supervisory employees, which remains unaffected by the McLaren Macomb decision.

Although McLaren Macomb involves union employees, the risk of non-compliance following this decision extends to all employers subject to the act, including non-union employers. Small businesses with non-union employees, while least likely at risk of a claim of unfair labor practices, are also subject to this decision. While employers may choose not to follow the proactive advice of the NLRB general counsel, employers should consider reviewing their current severance agreements and consider revising the non-disparagement and confidentiality clauses to avoid possible non-compliance.

Employers with questions regarding the enforceability of their non-disparagement and confidentiality clauses may wish to seek advice from their legal counsel.

 

Mary Jo Kennedy is a partner, and Briana Dawkins is an associate, with the law firm Bulkley Richardson, which has offices locally in Springfield and Hadley.