March 09, 2023

Labor and Employment Newsletter

3 min

We Want to Hear from You

What legal issues are keeping you up at night?

We are continuing to monitor key trends and significant updates that affect employers across a wide variety of industries. We want to make sure we touch upon issues that are of concern to you. We invite you to take a moment and let us know what you would like to hear more about in this newsletter. Click below to email our team of attorneys.


Ninth Circuit Puts Mandatory Employment Arbitration Agreements Back on the Menu

Once again, the California legislature's attempt to kneecap arbitration agreements in the employment arena has been swept aside by a federal court. As of February 15, 2023, California employers may continue to require mandatory arbitration as a condition of employment after a divided Ninth Circuit, in Chamber of Commerce of the U.S., et al. v. Bonta, et al., held that the Federal Arbitration Act (FAA) preempts Assembly Bill 51 (AB 51) after an almost three-year legal battle. As a result, California's effort to impose criminal and civil sanctions on employers who use mandatory arbitration agreements for their employees is no more.

U.S. Department of Labor Releases Guidance on Teleworkers

The U.S. Department of Labor (DOL) Wage and Hour Division recently issued a Field Assistance Bulletin (FAB) advising on certain applications of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) for teleworking employees. The primary focus of the FAB is compensable time, breaks for nursing employees, and FMLA eligibility rules for remote employees. The bulletin, intended for field staff, is a useful tool for employers to ensure their policies are compliant under the current FLSA and FMLA regulations as to their teleworking employees.

Are Employee Confidentiality and Non-Disparagement Promises Gone? The NLRB Says, in Most Cases, Yes (Again)

As is often the case, when a presidential administration changes, so may a prior rule issued by the National Labor Relation Boards. On February 21, 2023, the Board returned to its pre-Trump administration rule: broad confidentiality and non-disparagement terms in severance agreements will be deemed unlawful if they tend to interfere with, restrain, or coerce an employee's ability to speak about the severance agreement or otherwise communicate with other employees about their former employer. The prior Trump-era rulings allowed employers to include confidentiality and non-disparagement clauses in severance agreements, but the NLRB's latest ruling in McLaren Macomb reverts to the old rule placing employers in an uncertain situation with their current and future severance agreements.

Education Roundup: Biden's Student Loan Forgiveness Plan in Peril

The Supreme Court heard arguments on February 28, 2023 in two cases that will decide the future of President Biden's student loan forgiveness plan. The cases, Biden v. Nebraska and U.S. Department of Education v. Brown, center on two legal queries: (1) Do the petitioners have standing? and (2) Does the Department of Education have the authority to forgive student loan debt at this scale?

Attorney Spotlight

Emily TortoraEmily Tortora: In an ever-evolving legal landscape, employers are wise to maintain regular contact with their employment counsel. Stock templates that a company may have used in the past—for handbook policies or job postings, for example—easily become outdated as state and federal employment requirements shift. What was permissible a year ago may not be now; last month's National Labor Relations Board decision regarding confidentiality and non-disparagement provisions in severance agreements is just one recent example. Employment counsel can audit policies, procedures, and agreements to ensure that employers stay in compliance with any new requirements that arise.

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