Virginia Code Section 40.1-28.01 was passed in 2019 to prohibit any provision in a nondisclosure or confidentiality agreement that has the purpose of concealing the details of a sexual assault. The new section is not retroactive, but it does ensure that employers will not be able to rely upon non-disclosure agreements to conceal sexual assaults occurring in the workplace. At present, the language is narrowly drafted to cover current and prospective employees only. Accordingly, confidentiality agreements executed by former employees in consideration for severance or settlement payments may not be covered by the statutory protection.
Tag Archives: Richmond Employment Lawyer
Can the NLRB outlaw confidentiality clauses in severance agreements?
The National Labor Relations Board has reversed its prior precedent, holding that confidentiality and non-disparagement clauses in severance agreements for non-managerial employees can violate an employees basic right to discuss terms and conditions of employment under Section 7 of the National Labor Relations Act – even if the employee is not covered by a union. Though traditionally linked to union activity, Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
The new standard was set forth in McLaren v. Macomb, 372 NLRB 58, as issued in February 2023. The decision does not, on its face, outlaw all confidentiality provisions, but it does take issue with broad language that prohibits the employee from discussing the terms of the agreement with any third party. The Board reasoned that an absolute ban that prohibits employees from discussing the terms of the agreements with co-workers or union representatives could produce a chilling effect that would discourage employees from bringing charges before the Board, co-operating with Board investigations or assisting their co-workers who were subjected to unlawful actions. Note that the NLRB’s ruling generally does not pertain to Supervisory personnel who have general managerial authority such as the right to hire, discipline and fire employees.
Can your employer avoid overtime payments by using an adjustable pay scheme?
In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.
The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.
In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.
https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html
Can False Rumors Serve as the Basis for Claims of Sexual Harassment?
In Parker v. Reema Consulting, the Fourth Circuit addresses a claim where a female subordinate alleges that she was subjected of repeated rumors of sleeping with her supervisor to secure a promotion. Importantly, company managers participated in the spreading of the rumors. To state a claim under Title VII for a hostile work environment because of sex, the plaintiff must allege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s sex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.
In this case, The Fourth Circuit agrees that these sex based rumors can serve as the basis for a hostile environment claim and that the continuous nature of the harassment was sufficiently pervasive as to interfere in her work.
https://law.justia.com/cases/federal/appellate-courts/ca4/18-1206/18-1206-2019-02-08.html
Does the FMLA Provide for a”Light Duty” Return to Work?
The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013). In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA). After his 12 weeks of FMLA expired, the employee requested to return to work in a light duty capacity that would eliminate some essential functions of his position. When the employer could not accommodate his request, the employee nonetheless remained on leave based upon the terms of his union’s collective bargaining agreement. Ultimately, the employee returned to work but still sued under the FMLA, contending that the employer failed to promptly reinstate him in accordance with his physician’s restrictions.
At the conclusion of an FMLA period, the FMLA requires that an employer reinstate the employee to his prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The Seventh Circuit affirmed that the FMLA does not require an employer to return an employee to his position if that employee cannot perform an essential function of the job. 29 C.F.R. § 825.214(b). As otherwise stated, there is no such thing as obligatory light duty under the FMLA. (Note, other laws such as workers’ compensation and ADA statutes may impose different light duty obligations depending on the facts of each individual case.)