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Tracey Diamond

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Tracey Diamond counsels clients on workplace issues, provides harassment training, conducts internal investigations, drafts policies and procedures, negotiates employment and severance agreements, advises on independent contractor, FMLA and ADA compliance issues, and partners with clients to structure their workforce in the most efficient and effective way possible.

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Q: Does the Speak Out Act affect employer nondisclosure and nondisparagement agreements?

A: Nearly five months after Senator Kirsten Gillibrand (D-NY) first introduced the bipartisan Speak Out Act, President Joe Biden signed it into law on December 7, 2022. The Speak Out Act bars judicial enforcement of nondisclosure and nondisparagement clauses concerning sexual assault and sexual harassment allegations if entered into “before the dispute arises.” This ensures that “victims and survivors have the freedom to report and publicly disclose their abuse,” while still allowing employers to use nondisclosure and nondisparagement clauses in resolving a dispute once it has arisen.

How does a company keep its trade secrets secret? What can companies do to protect their confidential information? In Episode 10 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sat down with Tangibly CEO Tim Londergan and Troutman Pepper Partner Will Taylor to discuss the hit TV show Severance and how it relates to best practices in dealing with trade secret theft and protecting confidential information. Tune in for a lively discussion!

Should you be friends with your coworkers outside of work? What should employers consider when they learn about a relationship outside of the workplace? In Episode 9 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Matt Leeth, executive vice president of legal affairs at Jushi Holdings, Inc., to discuss an episode of the TV series The Office, and best practices in dealing with relationships outside of the workplace. Tune in for a lively discussion!

Q. How do I fight antisemitism in the workplace?

A. The recent headlines involving Ye, Kyrie Irving, Dave Chappelle, and others are just the latest in a string of highly disturbing antisemitic statements and incidents. In 2021, the Anti-Defamation League (ADL) recorded 2,717 antisemitic incidents throughout the United States — a 34% increase from 2020 and the highest number on record since ADL first began tracking antisemitic occurrences in 1979. As many as 1,496 antisemitic acts have been reported in this calendar year alone, ranging from the distribution of antisemitic propaganda to physical attacks against Jewish individuals to bomb threats.

What should employers do when they learn about harassment in the workplace? In Episode 8 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Leah Katz sit down with Sarah Goncher, deputy general counsel of operations for a regional health care provider, to discuss the TV series Succession and best practices in dealing with workplace harassment. Tune in for a lively discussion!

How do office romances affect the workplace? What should employers consider when they learn of an office romance? In Episode 7 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Michelle Rice, senior corporate counsel, labor and employment at Yelp, to discuss the movie The Hating Game and best practices in dealing with office romances. Tune in for a lively discussion!

What steps should an employer take to terminate an employee properly? What is the best way to communicate the termination decision? In Episode 6 of the Hiring to Firing Podcast, Troutman Pepper Partner Tracey Diamond and Associate Brian Ellixson sit down with Barry Thrutchley, vice president of human resources at Puratos Corporation, to discuss the movie Up In The Air and best practices in conducting terminations. Tune in to hear a lively discussion about the “right” way to deliver bad news.

In Episode 5 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Troutman Pepper Partners Ashley Hager and Lynne Wakefield to discuss the hit show The Handmaid’s Tale and lessons learned about corporate abortion policies. Tune in to hear a lively conversation about what companies can do if they want to offer abortion benefits, including travel benefits, and the risks and challenges of implementing such benefits.

Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?

A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.

Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.