Executive Summary

On February 21, the National Labor Relations Board (NLRB or Board) reversed course from its own Trump-era precedent when it held that an employer’s offer of employee severance agreements with broad confidentiality and non-disparagement provisions is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (Act). In light of this change, all employers, regardless of whether they are unionized, should carefully consider actions including:

Continue Reading NLRB Prohibits Confidentiality and Non-Disparagement Provisions in Severance Agreements With Broad Implications

Q: Does a BIPA claim accrue each time a person’s biometrics are scanned or only with the first such scan?

A: A BIPA claim accrues with each scan.

On February 17, the Illinois Supreme Court issued its long-awaited decision in Cothron v. White Castle, holding that a claim under Illinois’ Biometric Information Privacy Act (BIPA) is triggered upon each biometric scan, rather than just the first. The court’s 4-3 decision significantly expands the exposure BIPA defendants face.

Continue Reading Illinois Supreme Court Rules BIPA Claims Accrue With Each Scan

Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?

A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.

Continue Reading Chapter Two: Federal District Court Again Finds Employer Did Not Violate Title VII in Prohibiting Black Lives Matter Attire

What could possibly go wrong with firing employees for having “bad energy” or not being “a good fit?” Join Partners Tracey Diamond and Evan Gibbs as they sit down with Fulton Bank Director of Organizational Effectiveness Allison Snyder to talk about the Apple TV+ series WeCrashed and the perils of these types of firings — including what happens when there’s a lack of professionalism and ethics in the workplace. Hear all this and more in Episode 11 of the Hiring to Firing Podcast!

Continue Reading Crashing and Burning: What Companies Can Learn From the Apple TV+ Series <em>WeCrashed</em>

Q: Can a private employer terminate an employee for social media posts that violate internal policies?

A: The Third Circuit, in a nonprecedential opinion, recently determined that a major airline acted permissibly in firing an employee for sharing offensive social media posts, affirming the district court’s grant of summary judgment grant on all counts.

Continue Reading Employer Justified in Terminating Employee Over Inappropriate Social Media Posts

Published in Law360 on January 20, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

Earlier this month, President Joe Biden signed into law the Protecting American Intellectual Property Act,[1] which aims to protect U.S. intellectual property by imposing sanctions on companies and individuals involved in trade secrets theft.

Continue Reading Water Cooler Talk: Trade Secret Lessons From ‘Severance’

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.

Continue Reading Biden’s “Speak Out Act” Bars Use of Nondisclosure and Nondisparagement Agreements to Restrict Sexual Harassment and Sexual Assault Allegations

On January 5, the Federal Trade Commission (FTC) voted 3-1 to publish its Notice of Proposed Rulemaking, proposing a new rule that, if implemented, would bar employers from entering into noncompete agreements with their workers, and require employers to rescind existing noncompete restrictions with current and former workers. The proposed rule supersedes state laws that are less protective of employees, but keeps the state law that provides employees greater protection. The proposed rule excludes franchisees from the definition of “worker” and has a single, limited exception that applies to the sale of a business.

Continue Reading FTC Proposes Rule to Ban Noncompete Clauses With Very Limited Exceptions

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!

Continue Reading What Can the Show <em>Severance</em> Teach Us About Trade Secrets?

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!

Continue Reading What Can the TV Series <em>The Office</em> Teach Us About Friendships at Work?