(CNN) There have been many questions raised about the implications of a the last decision by National Labor Relations Council To prevent employers from claiming laid-off workers to sign certain types of non-discrimination and confidentiality clauses if they want to receive severance pay.
Who covers it? Is it retroactive? My employer can no longer ask me to remain silent in exchange for termination of employment?
CNN Business posed these and other questions to some employment attorneys to get their opinion. Here are their answers.
1. Who does the new ban apply to? Most private sector employers in the United States are under the authority of the NLRB and must abide by its decisions.
Its latest decision will apply to unionized and non-unionized workers.
Andrew Hermann, Fellow in Labor and Employment Practice at Blank Rome LLP, said: “This board points out and reminds employers that the NLRB applies to employers regardless of whether workers are unionized.
2. Who is he no Banned? Select groups are not under the authority of the NLRB.
Federal, state, and local government agencies, including public schools, libraries, and parks, are not under the jurisdiction of the NLRB. No railways or airlines.
It is possible that some categories of workers will not be covered by the ban, because they are Excluded under the National Employment Relations Actimposed by the NLRB. They include: supervisors and managers who have the power to hire, fire, pay, and discipline workers, even if their company itself is under the jurisdiction of the NLRB; independent contractors; agricultural and domestic workers; And anyone who works for a parent or spouse.
3. Is the ruling retroactive? It’s hard to say definitively. Hermann noted that the decision published by the NLRB does not explicitly say it is retroactive.
In general, NLRB decisions may be presumed to be retroactive “unless they are unfair to the employer or lead to an injustice,” said attorney Michael Healy of Wagner, Falconer and Judd Ltd. In this latter case, Healy said, it’s fair to assume it may not be because employers have offered severance agreements in recent years based on a 2020 NLRB decision that was effectively overturned by the board’s latest decision.
However, lawyers CNN spoke to agreed that it is possible the Labor Council could consider applying it retroactively if someone charge files For an alleged labor violation related to a dismissal agreement signed or executed within the past six months. There is usually a six-month statute of limitations window for an alleged violation to be brought to the board’s attention.
4. Even the bosses now never You’re asking me to remain silent about the company as a condition of receiving severance pay? No, they still can in some circumstances.
Last week’s NLRB ruling prohibits employers from requiring laid-off workers to keep confidential the terms of their severance agreement and the terms and conditions of their job (which include wages, hours, health and safety issues, etc.).
Herrmann noted that your employer may ask you not to disclose trade secrets or other confidential information that protects their business interests.
Employers may ask you to waive your right to bring any future claims or file a lawsuit against them.
5. How will this new ruling affect employers’ future dismissal decisions? It’s easy to forget, but there it is There is no legal requirement For employers to provide compensation to laid-off workers. But they do so for a variety of reasons beyond simply maintaining goodwill with employees and the surrounding community, which may be economically dependent on the company’s workforce.
They offer the chapter to buy protection from things like being sued or publicly disparaged, from having their trade secrets revealed or otherwise having lawsuits filed against them.
“I’m doing it because I want to get something from the employee in return. I’m buying the end.” [in having to deal with that employee]said John Hyman, attorney from the management side and head of recruitment and labor practice at Wickens Herzer Panza.
But by not being able to require the employee to remain silent about the terms and conditions of their job or what is in the severance agreement, the amount of protection an employer can buy is reduced. Hyman suggested that employers might want to pay you less for it.
“There is a real risk to staff that the case will have a negative impact on the amount of severance packages in the future,” he said.
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