As outlined in the February 22, 2023 SGR Client Alert, the National Labor Relations Board (“NLRB”) ruled in McLaren Macomb that severance agreements may not contain general non-disparagement or confidentiality/non-disclosures provision because they interfered with, restrained or coerced employees’ exercise of their Section 7 rights under the National Labor Relations Act (“Act”). On March 22, 2023, Jennifer A. Abruzzo, the NLRB General Counsel, issued Memorandum GC 23-05 (“Guidance”) to provide guidance regarding the February 21, 2023 McLaren Macomb decision. In the McLaren Macomb decision, the NLRB ruled that the severance agreement at issue contained overly broad non-disparagement and confidentiality clauses… Read more
Group health plans are now required to submit an annual attestation confirming that the agreements the plan enters into with its service providers do not contain “gag clauses,” which are limitations regarding the plan’s ability to access de-identified claims data or disclose provider-specific information to third parties, including plan participants. The first attestation is due by December 31, 2023, and will cover the period of December 27, 2020 through December 31, 2023. The attestation must be submitted through a CMS portal. An attestation will be due by the 31st of December each following year. Self-funded plans can contract with their… Read more
Cooperative boards should be aware that there are three bills pending before the New York City Council that, if passed, will impose substantial requirements on the purchaser application process in all cooperatives in New York City with 10 or more apartments. Boards should consider whether to reach out to their council members, the members of the Committee on Housing and Buildings listed below, or the Mayor to express their views on the wisdom of the proposals. The bills are Intro. 0914-2023, Intro. 0915-2023 and Intro. 0917-2023. Under current law, Boards must abide by all federal, state and city anti-discrimination laws,… Read more
On February 22, 2023, the United States Supreme Court issued the long-awaited decision in Helix Energy Solutions Group, Inc. v. Hewitt. The Supreme Court held that a highly compensated employee who is paid solely on a day-rate basis is not exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). The case focused on Section 541.602(a) of the FLSA’s regulations that permits certain white collar workers to be exempt from overtime pay requirements if they perform specific duties and are paid on a salary basis. The latter is defined as a guaranteed weekly amount that does not fluctuate… Read more
In a recent decision that is good news for California employers, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s ruling striking down California Assembly Bill 51 (“AB 51”) as preempted by the Federal Arbitration Act (“FAA”). The decision permits California employers to require applicants and employees to agree to arbitrate employment-related disputes as a condition of employment. The Ninth Circuit decision aligned itself with similar decisions from the First and Fourth Circuits that previously had rejected state laws regulating the creation of arbitration agreements. In 2019, California passed AB 51 to prevent employers from requiring… Read more
The National Labor Relations Board (“NLRB”) ruled on February 21, 2023 that McLaren Macomb, a company that operates a Michigan hospital, violated the National Labor Relations Act (the “Act”) when it presented a “Severance Agreement, Waiver and Release” to 11 furloughed bargaining unit employees. The hospital offered employees severance agreements that contained standard provisions for confidentiality and non-disparagement, as well as significant monetary and injunctive penalties in the event of a breach. The confidentiality provision was interpreted as prohibiting disclosure of the severance agreement and its terms to any third party, including co-workers and union officials. The NLRB did not… Read more
On January 30, 2023, the Biden Administration announced its plan to end the COVID-19 public health and national emergency declarations on May 11, 2023, more than three years after the declarations initially took effect. On the date the emergency declarations end (May 11, 2023), employer sponsored group health plans will no longer be required to cover out-of-network COVID-19 vaccinations, in-network or out-of-network COVID-19 diagnostic testing or related services, or over-the-counter COVID-19 tests without participant cost-sharing. This means group health plans may apply deductibles, copayments, or coinsurance for these services. However, in-network COVID-19 vaccinations must continue to be covered without participant… Read more
It’s time to start preparing for the H-1B cap season. The H-1B cap registration period for Fiscal Year 2024 will open at noon Eastern on March 1, 2023, and run through noon on March 17, 2023. During the initial registration period, prospective petitioners or their authorized representatives must electronically register each foreign worker they intend to seek to file an H-1B cap subject petition and pay the associated $10 registration fee. New H-1B registrants will be able to create new accounts beginning at noon on February 21, 2023. What does this mean for your organization? If your organization is looking… Read more
The Illinois legislature kicked off the new year with the passage of Senate Bill 208 (SB208), also known as the Paid Leave for All Workers Act (the “Act”). Illinois Governor Pritzker issued a statement indicating his intention to sign the Act into law. Once signed into law by the Governor, the Act will require all covered Illinois employers to provide paid leave to covered employees for any purpose effective January 1, 2024. Accordingly, Illinois is expected to become the third state to require paid leave for any reason. Starting January 1, 2024, Illinois employees will be entitled to earn and… Read more
On January 5, 2023, the Federal Trade Commission (“FTC”) published a Notice of Proposed Rulemaking (NPRM) to prohibit the use and enforcement of non-competition (a.k.a. “non-compete”) clauses in employment agreements. The Commission voted 3-1 in favor of publishing the proposed rule, and Commissioners distributed two statements in support of it. Commissioner Christine S. Wilson was the sole vote against the proposed rule, and she published a statement in opposition to it. In the next stage of the regulatory process, the proposed rule is open for public comment for 60 days, after which the FTC will make it final. Employers would… Read more
