If you are prepared to accept “bold” as a substitute for “reasoned and sensible”, then there is much to like in the government’s formal response to its 2020 consultation on restrictive covenants, which was finally published last month. It is this which seeks to explain the thinking behind the proposal we covered here – to … Continue Reading
As we previously reported, the National Labor Relations Board (“NLRB,” or “the Board”) decided last month in McLaren Macomb, 372 NLRB No. 58, that an employer commits an unfair labor practice (“ULP”) when it presents a non-supervisory employee with a severance agreement containing broad confidentiality and/or non-disparagement provisions. The Board reasoned that even proffering an … Continue Reading
On February 21, 2023, the National Labor Relations Board (“NLRB” or the “Board”) decided in McLaren Macomb that an employer commits an unfair labor practice when it presents a non-supervisory employee with a proposed severance agreement containing broad confidentiality or non-disparagement provisions. Reversing two earlier decisions by the previous Republican-majority NLRB in 2020, a majority … Continue Reading
The California Legislature increased the complexity of employment law in the Golden State by enacting several employment laws that will soon take effect. Below we summarize key aspects of the more significant new legislation. Intentional Failure to Pay Wages May Constitute the Felony of “Grand Theft” (Assembly Bill 1003) Under current law, employers who wrongfully … Continue Reading
Back in 2016 the Government published a Call for Evidence to better understand, it said, how non-compete clauses in employment contracts are used and why, and to assess the benefits and disadvantages associated with them. The Call was a mess in every sense, legally, practically and even grammatically, as we said here nowhere in the whole … Continue Reading
On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance concerning COVID-19 and the workplace. The update provides much-needed answers to questions that have been troubling employers struggling to adapt to circumstances presented by the still-ongoing public health emergency. Can we test employees for COVID-19 prior to allowing them back in … Continue Reading
The National Labor Relations Board continues to clarify and update employers’ obligations in key areas. As discussed below, one recent decision clarifies when employers may enter into arbitration agreements that require employees to keep the proceedings confidential. Another recent decision rescinded a rule issued by the Obama-era NLRB and clarified, for employers who are negotiating … Continue Reading
Since the National Labor Relations Board issued the precedent-changing Boeing Company decision in late 2017, the Board has continuously illustrated when employment policies will survive scrutiny under the National Labor Relations Act. Recently, in Argos USA LLC, the Board clarified its position about three common types of employment agreements or policies, i.e., those concerning confidentiality, … Continue Reading
The National Labor Relations Board issued a slew of precedent-changing decisions this month, as well as significant changes to its rules and regulations. These new rules and decisions will change labor law in several key ways for both union and non-union employers, including during union elections, during internal investigations, when employees seek to use work … Continue Reading
On October 10, 2019, the National Labor Relations Board’s (“NLRB” or “Board”) decision in LA Specialty Produce Company provided some employer-friendly clarification of its standard for assessing the lawfulness of employee handbook provisions under the National Labor Relations Act (“NLRA”), and in doing so, categorized two specific types of policies as generally lawful. In this … Continue Reading
The Equality and Human Rights Commission (EHRC) has issued new guidance on the use of confidentiality agreements (often referred to interchangeably as “non-disclosure agreements” “NDAs”, “gagging clauses” or “confidentiality clauses”) in discrimination cases. The stated aim of the guidance is to “clarify the law on confidentiality agreements in employment and to set out good practice … Continue Reading
On August 9, 2019, Illinois Governor JB Pritzker signed into law the Illinois Workplace Transparency Act (“WTA”), imposing new requirements and modifying existing laws in ways that will impact nearly all Illinois employers – and may be a signal of things to come in other US states. The WTA aims to address concerns raised through … Continue Reading
Last week we issued an alert about the UK government’s plans to introduce new legislation to tackle alleged misuse of confidentiality clauses in employment contracts and settlement agreements. The consultation has been launched primarily in response to concerns that some employers are using confidentiality clauses (sometimes referred to as “non-disclosure agreements”) to “gag” victims of … Continue Reading
As most union and non-union employers know, the National Labor Relations Board has updated its standards in several respects over the past year. For some of these updates, the Board has not comprehensively clarified how far they extend or when they apply. In an effort to help clarify employers’ obligations, the Board’s top prosecutor, General … Continue Reading
Apparently, said the Court of Appeal, the unlawful retention and circulation of confidential material by a union representative “was not a sufficient departure from good industrial relations practice” to justify his dismissal, a conclusion which initially seems little short of perverse, let alone an alarming comment on the state of industrial relations in the UK’s … Continue Reading
During the first month and a half of 2018, the National Labor Relations Board (“NLRB” or “Board”) released a torrent of memoranda authored by its Division of Advice (“Advice”), a section of the NLRB’s Office of the General Counsel. As you may have read on our blog before, Advice memoranda are issued by the NLRB’s … Continue Reading
News out this week that a committee of MPs is to look into workplace harassment, and in particular the use of confidentiality wording in settlement agreements arising from harassment allegations. Critics allege, says the BBC New Online, that such clauses are “abused by employers and legal experts to cover up wrongdoing” and used to “buy … Continue Reading
The National Labor Relations Board (NLRB or Board) issued two groundbreaking decisions on December 14, which will give both union and non-union employers significantly more flexibility to manage their operations. Earlier this week, the Board also signaled that it will revise the “quickie” election rules implemented in 2015 in the near future. These developments will … Continue Reading
In the current climate where sexual assault and harassment allegations against Hollywood elite, Congressmen and news anchors have triggered a wave of “me too” allegations, several tools commonly used by employers to shield themselves from liability have come under attack, including non-disclosure agreements (NDAs) and arbitration agreements. Many employers require employees to sign NDAs as … Continue Reading
“The system will not work if people think they can ignore court orders and destroy evidence. Those who so can expect terms of imprisonment.” Mr Dadi was an employee of OCS, an aviation cleaning contractor working at Heathrow for (amongst others) British Airways. OCS lost the British Airways contract to a competing firm Omni Serv … Continue Reading
In 2015, we reported to you about the National Labor Relations Board’s (NLRB) decision in the Banner Estrella Medical Center case, which placed significant limits on employers’ ability to request employee confidentiality during workplace investigations. As a reminder, in the Banner case, the NLRB found that Banner Estrella maintained a policy of instructing employees involved in … Continue Reading
Proponents of workplace mediation often stress its confidential and voluntary nature and the ability to fail to agree without there necessarily being any adverse consequences. It is all about listening and rapport and trust, say those commentaries, making the whole process sound as cuddly and unthreatening as your favourite puppy. In fact, there are a … Continue Reading
On April 3, 2015, we reported that the Securities and Exchange Commission (SEC) had sent letters to numerous publicly-traded U.S. companies requesting their nondisclosure agreements, severance and settlement agreements, and other contracts entered into after the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) to determine whether the documents unduly interfere … Continue Reading
“We want to ensure that when used, covenants are justified, well-constructed, targeted and reasonable. There needs to be a balance which ensures the employer can protect its business interests when staff move on and the worker is not unfairly disadvantaged when they (SIC) decide to leave or start up their own business“. So says the … Continue Reading
