Is It Time to Revise Severance Agreements and Employee Handbooks?

Is It Time to Revise Severance Agreements and Employee Handbooks?

The National Labor Relations Board (“NLRB”) returned to a longstanding precedent recently by holding that employers violate the National Labor Relations Act if they offer employees severance agreements that require employees to broadly waive their rights under the Act. This holding means that employers who use severance agreements should review them to make sure that the usual provisions that broadly require non-disparagement (the employee will not say anything negative about the employer, their products, etc.) and confidentiality are not overly broad. Employers should review their employee handbooks to check for similar overbreadth.

The severance agreement at issue in the case of McClaren Macomb contained overly broad non-disparagement and confidentiality clauses that the Board said tended to interfere with, restrain or coerce employees’ exercise of the Section 7 rights. Under Section 7, non-managerial and non-supervisor employees have the right to engage in concerted activity for mutual aid or protection. The Board held that non-disclosure provisions that contain a non-disparagement clause that advised the employees that they are prohibited from making statements that could disparage or harm the image of the employer and their officers, directors, employees, agents and representatives are unlawful. In addition, the confidentiality clause at issue advised employees that they are prohibited from disclosing the terms of the agreement to anyone except for a spouse or professional advisor, unless compelled by law to do so.

The ruling means that although severance agreements are not banned, they may need to be modified. Employers who use severance agreements should consider revising them to narrow the scope of non-disparagement and confidentiality provisions so that they pass muster under the Act. The general counsel for the NLRB has recently written that confidentiality clauses that are narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications may be lawful. However, confidentiality clauses that have a chilling effect that precludes employees from assisting others about workplace issues or from communicating with the NLRB, a union, legal forums, the media or other third parties are likely unlawful.

In Conclusion, What should the astute employer do in light of the most recent NLRB ruling? It is not necessary to abandon severance agreements altogether. Rather, an employer should review their severance agreement forms and employee handbooks to make sure that the provisions relating to confidentiality and non-disparagement are consistent with the new rulings of the NLRB.

Please contact one of our experienced employment attorneys for additional assistance in reviewing your policies.

More Protections for Pregnant Workers

More Protections for Pregnant Workers

If you are an employer with pregnant employees, employees returning from parental leave, or employees who have had a child in the last two years, then please read on.

Effective on December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (also known as the “PUMP Act”) expanded protections for breastfeeding mothers. Effective in June 2023, the Pregnant Workers Fairness Act (“PWFA”) will provide new protections for pregnant employees.

The PWFA is a new law that requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA only applies to accommodations. Existing laws enforced by the Equal Employment Opportunity Commission (“EEOC”) and the Wisconsin Department of Workforce Development (“DWD”) already make it Illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth or related medical conditions.

The PWFA goes in to effect on June 27, 2023. Before then, the EEOC is required to issue regulations to carry out the law. This act requires employers to provide a temporary reasonable accommodation to workers with medical conditions related to pregnancy or childbirth, barring an undue hardship to the employer. Many lawmakers believe that the new law will close a gap, because present laws do not necessarily recognize pregnancy alone as a disability entitled to accommodations under the Americans with Disabilities Act (“ADA”). The act applies to employers with 15 or more employees.

The legislation is an attempt to provide “common-sense protections for pregnant workers, like extra bathroom breaks or a stool for workers who stand, so they can continue working while not putting extra strain ”on their bodies, said Sen. Bob Casey, D-Pa.

Under the PWFA Employers Cannot:

  • Require an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer.
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for reasonable accommodations.
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding such as an investigation.
  • Interfere with any individual’s rights under the PWFA.

The PUMP Act expands workplace lactation accommodations to exempt (salaried) workers. It is effective immediately for companies with more than 50 Employees nationwide. The Affordable Care Act of 2010 requires that employers provide a reasonable time to express breastmilk, but it applies only to hourly employees.
Here are the primary features of the PUMP Act:

  • Applies to all employees—exempt and non-exempt—with the exception of certain airline employees.
  • Reasonable pumping breaks must be provided to breastfeeding employees for two years after a child’s birth.
  • An employer is not required to compensate non-exempt employees for pumping breaks as long as such employees are relieved of all work during that break. If the employee is not completely relieved of work duties during the entirety of the pump break, then the time must be compensated.
  • The location for pumping breaks must be somewhere other than a bathroom and must be private and free from intrusion.
  • If an employee believes her employer is violating the PUMP Act, the employee must provide notice and allow the employer ten days to Remedy the matter.

What does all of this mean for employers?
Now is the time for employers to take the following actions:

  • Updating existing personnel policies.
  • Train managers on the changes under the new laws.
  • Create a process, similar to the ADA, to create interactive dialogues for pregnancy-related limitations.

The PWFA and the PUMP Act expand the rights available to pregnant workers but use the guidance of present laws as a way to promote compliance by employers. Employers should review the new laws to ensure that they are integrating the new laws into their handbooks. If you have any questions about these new acts please call our office to speak with our experienced employment law attorney.


As Afghans Resettle, A Reminder for Wisconsin Employers on Federal Discrimination Law

As Afghans Resettle, A Reminder for Wisconsin Employers on Federal Discrimination Law

Fort McCoy in Wisconsin recently became the temporary home of thousands of Afghan refugees following the U.S. military withdrawal in Afghanistan. As of this writing, Wisconsin has been designated by the U.S. Department of State to permanently receive approximately 400 Afghan refugees within state boundaries. This means that many Afghan refugees may be applying for employment throughout Wisconsin. This situation presents a good opportunity for employers to review their obligations under federal law with respect to considering non-citizens for hire.

The Immigration and Nationality Act

Under the federal Immigration and Nationality Act (“INA”), employers generally cannot make hiring, firing, recruitment or referral decisions based on a worker’s citizenship status. Citizenship status discrimination generally occurs when an employer refuses to recruit, refer, hire or fire someone because of the person’s citizenship or immigration status. One example of citizenship status discrimination is when employers limit jobs to U.S. citizens without legal justification.

Employers must use the Form I-9 to verify the worker’s identity and permission to work within three days after the individual begins working for the employer. Federal law generally allows workers to choose which valid, acceptable documentation to present to their employer to prove their identity and permission to work in the U.S. regardless of their citizenship, immigration status or nationality. Employers that discriminate in this process against individuals with permission to work in the U.S. might violate the INA.

 About Afghan Immigrants’ Employment Rights

The U.S. Department of Justice recently issued a fact sheet on Afghan immigrants’ employment rights. That fact sheet can be found here: According to the sheet, some Afghan refugees may have received special permission to work in the United States. Some individuals may have status as Special Immigrant Visa holders and may have permanent residence in the U.S. Other individuals, referred to as “parolees,” can work in the U.S. if the U.S. Department of Homeland Security grants them permission to do so. In such instances, the Department of Homeland Security will issue the refugee an Employment Authorization Document, often referred to as an “EAD” or Form I-766.

Refusing to hire Afghans with special immigration status may itself be a violation of the INA, subjecting the employer to investigation, complaint and fines from the U.S. government and prosecuted through the U.S. Department of Justice.

If an employer is seeking employee applicants, it should avoid violating the INA by not implying that it engages in citizenship status discrimination. Examples of possible violations of the law include statements as follows:

  1. “H-1Bs or OPT Candidates Preferred;”
  2. “Only U.S. Citizens;”
  3. “Only Green Card Holders;” or
  4. “Must Present U.S. Birth Certificate.”

For general or specific information about avoiding discrimination in the hiring process with respect to Afghan refugees or others who are not U.S. citizens, contact your employment law attorney and review your obligations under the INA.


Returning to Work After a Work Comp Injury

Returning to Work After a Work Comp Injury

Absent the lucky few, most Wisconsin workers are considered “at-will” employees. This means absent exceptions for unlawful discrimination (e.g. race, gender, age, religion, etc.), a worker can be fired for any reason, or no reason at all.  However, worker’s compensation injuries are another exception to this “at-will” presumption that makes a work injury a protected category.

Under Wisconsin’s workers’ compensation law, Wis. Stat. § 102.35(3), an employer (at time of injury) who terminates, or unreasonably refuses to rehire, an employee after a work injury is subject to a penalty of up to one year’s lost wages. The purpose behind this law is to dissuade discrimination against employees who have been injured on the job and, assuming there is work available within the worker’s restrictions, make sure the injured worker gets back to work with his former employer. This is yet another outgrowth of the bargain struck between workers and employers under Wisconsin’s worker’s compensation regime:  workers do not get to sue their employers or co-workers for injuries, but they are entitled to a system of no-fault benefits and job protections.

When returning to work, there is a distinction between returning while still healing with temporary physical restrictions versus returning to work with permanent physical restrictions. An employee must provide notice to their employer of any temporary (as well as permanent) restrictions. If the employer can provide work within the temporary restrictions at the same rate of pay, no temporary disability is owed; if the employer can only provide work at lower wages or less hours, the worker is owed temporary partial disability; and, if the employer cannot provide any work, the employee is owed temporary total disability. If an employer terminates a worker while they are still healing, the worker has an unreasonable refusal to rehire claim.

When an injured worker reaches an end of healing or “healing plateau,” the treating physician may assign permanent physical restrictions along with any permanent disability percentage. If the worker is provided permanent work restrictions, they must provide the same to their employer. Under Wis. Stat. § 102.35(3), the employer must offer “suitable employment…within the employee’s physical and mental limitations.” If the worker’s permanent restrictions allow return to their same job at the time of injury, they should be offered it. However, the employer must offer any suitable position available even if different than the position the worker had at the time of the injury. Only when there is truly no work available within the worker’s restrictions can the employer refuse to rehire the injured worker. The employer, not the employee, bears the burden of proving the lack of suitable employment.

The above is not meant to suggest that there is an absolute unassailable right to return to work for the same employer following a work injury. When determining whether there is “suitable employment,” the statute allows for consideration of “the continuance in business of the employer.” This gives rise to the employer’s argument that the nature of business or economic situation dictated its refusal to rehire the injured worker, not the work injury.

Unsurprisingly, these are highly fact-dependent issues and claims. Moreover, unreasonable refusal to rehire penalties are paid by the employer, not the work comp insurance company, which means they are hotly contested and litigated. The above is only a brief snapshot and is not meant to cover all the variations that accompany return-to-work decisions after a work injury; if you have questions, do not hesitate to reach out to one of our worker’s compensation or employment law attorneys.


Non-Compete Agreements Are Ripe for Review

Non-Compete Agreements Are Ripe for Review

As many employers and employees know, non-compete agreements are fast becoming a centerpiece of many employer-employee relationships. A non-compete may not only protect a company’s confidential information from disclosure, but also restrict an employee who leaves to work for a competitor. Non-competes may also describe the duration of such restriction and geographic limitations.

Employers favor such restrictions because they protect their business interests in relation to their competitors. Employees dislike such restrictions, because they inhibit their practical choices when they leave one employer for another. Courts tend to look suspiciously at non-compete agreements because they limit the free flow of labor resources across the broader economy. Yet, when non-compete agreements are carefully drafted, they have been upheld by state and federal courts.

It may soon be time for employers to review their non-compete agreement due to a new presidential executive order that asks the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Each state has its own rules that regulate how far non-compete agreements can go in restricting the movement of former employees. Wisconsin’s rules regarding non-compete agreements are found in § 103.465, Wisconsin Statutes. Wisconsin law requires non-compete agreements to be properly limited in duration, scope and geographic area, among other limitations.

What role will the FTC play in changing the non-compete landscape? Most observers believe the agency will first conduct a state-by-state review of non-compete agreements. Then the FTC is likely to propose limits on the types of professions that may be subject to non-compete agreements.

As the landscape for non-compete agreements undergoes federal examination and likely recommendations for changes, employers and employees are well advised to consult with their attorneys for the latest developments with respect to the enforceability of non-compete agreements in Wisconsin and across the nation.


OSHA Speaks: Updated Workplace Guidance for Employers Concerning COVID-19

OSHA Speaks: Updated Workplace Guidance for Employers Concerning COVID-19

Although the Wisconsin Supreme Court ruled on March 31, 2021 that the Governor’s successive masking orders were unlawful, employers in Wisconsin have been uncertain about their duties, under the Occupational Safety Health Act (OSHA), to maintain a safe workplace concerning COVID-19.

On June 10, 2021, OSHA issued an update to its COVID-19 guidance, including a COVID-19 emergency temporary standard that concerns the healthcare industry and updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for Non-Healthcare Industries.

The updated guidance applies to industries other than healthcare.  It reiterates the following:

Unless otherwise required by federal, state, local, tribal or territorial laws, rules and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

The updated guidance focuses only on protecting unvaccinated or other at-risk workers in their respective workplaces.

Employers should be aware that the OSHA guidance refers to workplace safety standards.  The U.S. Equal Employment Opportunity Commission (EEOC) still regulates what qualifies as a medical inquiry for purposes of the Americans with Disabilities Act (ADA).  As the nation continues to recover from the COVID-19 pandemic, and barring adverse effects of new strains, employers and employees can generally expect a return to normalcy under the ADA.  This will mean a heightened standard of review by the EEOC with respect to how and when employers ask questions relating to the health of their employees.

For further information or additional discussion points, contact your Anderson O’Brien, LLP attorney.