February 2023 E-Update


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NLRB Prohibits General Non-Disparagement and Confidentiality Clauses in Severance Agreements

In a disturbing case applicable to all employers – union and non-union alike – the National Labor Relations Board asserts that severance agreements may not contain general non-disparagement or confidentiality clauses. According to the Board, such clauses violate the rights of employees under Section 7 of the National Labor Relations Act to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity). For more, click here.

Department of Labor Says FMLA Leave May Be Used to Reduce Work Schedule Indefinitely

In a troubling opinion letter for employers, the Wage and Hour Division of the U.S. Department of Labor has asserted that employees may use leave under the Family and Medical Leave Act to reduce their work hours for an indefinite period, as long as they do not exhaust their FMLA leave. It also offers some insight into the interaction of the FMLA with the Americans with Disabilities Act. For more, click here.

What Has Happened and What Can Employers Still Expect from the NLRB?

On February 15, 2023, Sean Marshall, Regional Director of Region 5 of the National Labor Relations Board (NLRB or Board) met with a group of labor and management practitioners at an event hosted by the Maryland State Bar Association. For more, click here.


US DOL Provides Resources on Protections for Nursing Mothers.  The federal Department of Labor has launched an effort to educate workers about the new Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act.  For more, click here.

US DOL Issues New and Updated Resources on the Family and Medical Leave Act.  In celebration of the 30th anniversary of the Family and Medical Leave Act, the federal Department of Labor has launched an FMLA webpage with new and updated resources. For more, click here.

“Anticipated Length of Service” May Be a Risky Selection Factor.  The U.S. Court of Appeals for the Fifth Circuit found that the employee’s overwhelming qualifications supported her race discrimination claim and undercut the school district’s asserted primary reason for selecting another candidate: that the employee would not remain in the principalship position for long. For more, click here.

Allegedly Discriminatory Incidents Should Not Be Considered in Isolation. The U.S. Court of Appeals for the Second Circuit recently reiterated that multiple incidents – including those that may be “facially neutral” – must be considered as a whole in support of an employee’s race discrimination claim.  For more, click here.

A Flawed Investigation Does Not Necessarily Equal Discrimination. Although the U.S. Court of Appeals for the Tenth Circuit asserted that a flawed investigation is not enough, on its own, to support a claim of discrimination, we caution employers to be thorough and impartial in investigations in order to avoid such arguments. For more, click here.

USERRA May Require Short-Term Paid Military Leave.  The U.S. Court of Appeals for the Ninth Circuit found that employers who provide paid leave for short-term absences may be required to provide similar paid leave for short-term military purposes under the Uniformed Services Employment and Reemployment Rights Act.  For more, click here.

OFCCP Extends Deadline for Federal Contractor Objections to Release of EEO-1 Information.  As we previously discussed in our August 2022 and September 2022 E-Updates, the OFCCP is planning to release certain demographic data from contractor EEO-1 Reports from 2016-2020 in response to a specific Freedom of Information Act request (Component 2 pay data has not been sought), but has extended the deadline by which contractors could object to the release of their information to March 3, 2023.  For more, click here.

TOP TIP: There Are No ADA Protections for Unknown Disabilities/Subcontractors

A recent case reiterates the point that, under the Americans with Disabilities Act, it is not possible for an employer to discriminate against an employee for a disability of which it did not know, and that it need not provide accommodations for the unknown disability. Moreover, an employer need not rescind discipline if it later discovers the misconduct was caused by a disability.  For more, click here.