Page 18 - BusinessWest May 1, 2023

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Remote
Clauses
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confusing for employees, leave entitle- ments absolutely need to be addressed in your company handbook and/or poli- cy and procedure manual.
Poster and Notice Requirements
Numerous labor and employment laws, including wage and hour laws and family and medical leave laws, require employers to put a poster up in the workplace and provide informational notices to employees in places like a handbook. This obligation does not vanish when employees are working from home. If employees rarely visit the office, the required postings need to be distributed via email or posted on an employee-accessible intranet.
Health and Safety Requirements
Even for remote employees, busi- nesses must ensure a safe and secure working environment. This means iden- tifying risks and hazards associated with working in the home and requiring employees to report any work-related injuries or incidents. Even employees working from home are entitled to workers’ compensation for job-related injuries.
Consider an Employment- practices Audit
An employment-practices audit is a complete risk-and-liability assessment of your human-resources and compliance operations. Audits are a cost-effective way for employers to confirm that they are meeting their legal requirements under federal, state, and local laws and regulations. Employers with a hybrid
or remote workforce should consider engaging labor and employment coun- sel to conduct an employment-prac- tices audit to detect and fix any of the problems identified in this article (and more). BW
John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; jgannon@skoler- abbott.com
and include a time frame on such a restriction, may be considered law- ful; 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 rec- ommend such action.
Accordingly, to ensure enforceabil- ity 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 negoti-
ate broader non-disparagement and confidentiality agreements in com- munications with supervisory employ- ees, which remains unaffected by the McLaren Macomb decision.
Although McLaren Macomb involves union employees, the risk of non-compliance following this deci- sion extends to all employers sub-
ject 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 deci- sion. While employers may choose not to follow the proactive advice of the NLRB general counsel, employers should consider reviewing their cur- rent severance agreements and con- sider revising the non-disparagement and confidentiality clauses to avoid possible non-compliance.
Employers with questions regard- ing the enforceability of their non- disparagement and confidentiality clauses may wish to seek advice from their legal counsel. BW
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.
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18 MAY 1, 2023
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