Welcome to the first issue of SuperVision 2023! This issue covers a number of the high-profile legal developments in the labor and employment field that have arisen in recent months, including (but by no means limited to) the NLRB’s recent decision in McClaren impacting employer severance agreements and the EEOC’s recent announcement of its intent to focus on discrimination and harassment in the construction industry.
In addition to our written content, we also want to make you aware of other opportunities to stay on top of developments impacting your business.
We hope you find this latest issue of SuperVision to be useful and impactful for your business.
As always, thank you for reading.
In the Apple TV+ show Severance, employees of Lumon Industries may agree to a "severance" program in which non-work memories are separated from work memories. Outside of work, these Lumon Industries employees cannot discuss what happened at work because they have no memory of it. While Severance’s technology is fictional, employers frequently seek a similar result when offering severance agreements to departing employees. These agreements include a variety of provisions including confidentiality, release of claims, and non-disparagement provisions that restrict what the employee may say about their work experiences and terms of their departure. The National Labor Relations Board (Board) and the Board’s General Counsel recently imposed significant restrictions on the use of such provisions.
On February 21, 2023, the Board decided in McLaren Macomb, 372 NLRB No. 58 that severance agreements requiring employees to “broadly waive their rights” under the National Labor Relations Act, including prohibiting employees from making disparaging statements about their employer and disclosing terms of the agreement, are unlawful. More recently, the Board’s General Counsel offered answers to a number of questions about the scope of the McLaren Macomb restrictions and additional guidance on severance agreements.
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Diversity, equity, and inclusion (“DEI”) initiatives play a critical role in creating and sustaining a high-functioning business with an open flow of creative ideas. As companies continue to adapt to having an increased share of employees working in a remote or hybrid role, they should reexamine whether their workplace culture is inclusive for people of all backgrounds and experiences. Businesses that are viewed by their employees as unfair and unopen to feedback are more likely to have high turnover and face employment discrimination lawsuits. Although many leaders today recognize that diverse and inclusive workplaces help attract top candidates and maximize profits, developing an inclusive culture can be complicated. Inclusion requires intentionality, time, and a willingness to listen and change.
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The Equal Employment Opportunity Commission (“EEOC”) plans to prioritize its efforts to correct discrimination and harassment in the construction industry following a review of data that revealed the construction sector to be one of the most challenging areas in terms of discrimination and harassment cases. As detailed in its draft Strategic Enforcement Plan (“SEP”) for 2023 through 2027, the EEOC believes that the construction industry suffers from a systemic “lack of diversity” and has become an “area of particular concern.” The EEOC’s SEP is a guidance document that establishes the Agency’s priorities over a multi-year period. By identifying the construction industry as a particular focus area in the SEP, the EEOC is signaling its intent to focus its substantial resources on the construction industry over the next several years.
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The process of selecting the right candidate for a new position involves time and resources. Extending an offer of employment is generally an exciting endeavor for both the employer and its new hire -- which is why the details set forth in that offer of employment are so critical. While a verbal offer of employment is perfectly appropriate to provide, it is equally important that a written offer follow. Not only will a written offer letter set expectations for the new employee, but it also clarifies any matters that were discussed prior to an offer being made.
Employers should not disregard offer letters as an after-thought. In many cases, the existence of an offer letter can be incredibly valuable for employers. For example, clearly identifying any post-offer steps that must be successfully completed prior to starting employment (drug screen, background check, etc.) in an offer letter can serve as the basis for rescission of an offer where such checks are not satisfied. Additionally, a well-written offer letter also acts as clear and definitive proof as to the circumstances upon which employment was offered and accepted.
We offer a few practical considerations for employers when drafting offer letters.
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When a union knocks on an employer's door, it can be a shock and awe experience for the unprepared employer. It is important for employers to understand their rights and obligations when dealing with unions to ensure that they make the right decisions for their business. And, like most things, an ounce of prevention is worth a pound or more of cure.
We outline some steps that employers should take when a union approaches them.
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Construction continues to be one of the deadliest industries in the United States, and the Occupational Safety and Health Administration (“OSHA”) is heavily targeting construction workplaces. In 2022, OSHA inspected construction workplaces more than any other industry, and OSHA’s focus on construction employers is expected to continue this year. As such, construction employers should be aware of a recent OSHA press release, and two enforcement memorandums, indicating that construction employers will face a significant increase in penalties for violations and citations.
On January 26, 2023, OSHA issued a press release concerning a change in its long-standing policy related to instance-by-instance issuance of citations that became effective March 27, 2023. Since 1990, OSHA’s practice of issuing instance-by-instance citations has been limited to “egregious willful citations;” however, the recent press release indicates that this practice will be dramatically expanded to even the lowest level violation. The stated purpose for this change is to “make penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”
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