While employers in industries like construction and manufacturing are likely well-versed in specific Occupational Safety and Health Act (OSHA) regulations, an often overlooked regulation called the General Duty Clause applies to every employer.

Section 5(a)(1) of the Occupational Safety and Health Act (the “General Duty Clause”) requires an employer to provide a place of employment free from recognized hazards that may result in death or serious physical harm to its employees.  Violations include fines, legal liability, and reputational damage.

Continue Reading Understanding the OSHA General Duty Clause

On February 27, 2023, the General Counsel of the National Labor Relations Board (“NLRB”) released an advice memorandum (“Memorandum”) on the topic of an employee discussing issues of racial discrimination in the workplace and on social media. The General Counsel determined that discussions of racial discrimination in the workplace are protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”), and therefore, the NLRA protects employees who engage in such discussions from employer retaliation. This determination is similar to a General Counsel advice memorandum from January 20, 2016, in which the General Counsel concluded that an employee’s “discussion of alleged racial discrimination in terms and conditions of employment was protected under the Board’s doctrine of ‘inherently concerted’ activity.” However, the Memorandum issued on February 27 seemingly expands that standard to employees who discuss racial discrimination regardless of whether the employee discussions are related to racial discrimination occurring in the workplace or made in connection to the terms and conditions of employment.

Continue Reading NLRB Broadens Scope on Protected Concerted Activity for Workplace Discussions of Racism

In a recent decision, the National Labor Relations Board (“Board”) ruled that overly broad confidentiality and non-disparagement clauses in severance agreements are unlawful. In fact, even the mere offering of a severance agreement with these clauses is unlawful. Employers typically include these clauses in severance agreements either to restrict an employee from discussing the severance terms with coworkers or to restrict the employee from publishing false or defamatory comments about the employer following the employee’s departure from the company.  The Board reasoned that these two clauses, if drafted too broadly, might cast too wide a net and have a “chilling effect” on an employee’s exercise of their protected rights under the National Labor Relations Act (“Act”). This ruling applies to severance agreements offered in union and non-union private-sector workplaces. Continue Reading NLRB Rules Overly Broad Confidentiality and Non-Disparagement Clauses are Unlawful

The U.S. Supreme Court recently ruled that an employer’s guaranteed daily rate pay plan for an employee earning more than $200,000 per year did not meet the “salary basis” requirement of the federal Fair Labor Standard Act’s (“FLSA”) executive exemption test, and therefore, the employee was entitled to overtime pay for all hours he worked over 40 in a given 7-day workweek.  This decision highlights the importance for employers of correctly classifying employees under the FLSA’s exemptions from overtime pay.  Helix Energy Solutions Group, Inc. v. Hewitt, __ U.S. __ (Feb. 22, 2023)(“Helix”).  Simply paying an employee a substantial amount of money each year may not satisfy the technical requirements of the FLSA. Continue Reading Supreme Court Rules Employee Earning $200,000 Per Year On A Daily Rate Is Entitled To Overtime

On February 9, 2023, the United States Department of Labor, Wage and Hour Division (“DOL”) published an Opinion Letter addressing the use of leave pursuant to the Family and Medical Leave Act (“FMLA”) by an employee with a serious health condition to create a reduced scheduled workweek for an indefinite time period.  That same day, the DOL also clarified in a Field Assistance Bulletin the application of several specific Fair Labor Standards Act (“FLSA”) provisions and FMLA eligibility requirements to remote-based employees.  Neither of these publications create new law, but each serves as a helpful reminder of some of the more precise requirements of each law.  Below is a summary of the main points of each publication. Continue Reading United States Department of Labor Issues guidance on the FMLA and FLSA

There is a bipartisan bill in the New Hampshire Senate that would establish privacy rights for consumers in the state and privacy requirements for businesses and other organizations. On the latest installment of New Hampshire Business, host Fred Kocher is joined by Cameron Shilling, Chair of the Cyber Security Practice Group at McLane Middleton, to break down this proposed bill and the impact it could have on your privacy.

Click here to watch

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking (“NPRM”) to prohibit employers from entering into post-employment non-compete agreements with workers. The proposed rule, if adopted, would essentially ban non-compete agreements nationwide, with very limited exceptions.  The FTC will soon publish the NPRM in the Federal Register, triggering a 60-day public comment period.‎  Here are answers to some of the key questions employers may have about the proposed rule. Continue Reading FTC Proposes Rule that Would Ban Almost All Non-Compete Agreements Across the United States

The employee interview process is a critical component of building and shaping school culture.  Not only is it a chance to learn more about candidates to your school and to determine their fit for a particular role, but it is also an opportunity to introduce your school, including its mission and vision, to the candidate.  The goal of the process is to find the right match between a candidate and a school; hiring the right employee will help fill a critical position while also helping to ensure a long-term, collaborative relationship between that employee and the school.  Similarly, schools should endeavor to avoid legal claims that could result from inappropriate, or even illegal, questions asked during an interview.

To best establish a lawful, engaging, and effective hiring process, schools should consider incorporating a number of straightforward tips and should be cautious of asking interview questions that could create legal exposure to the school.  This article addresses both areas in turn below.

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To kick off the New Year, employers with 11 or more employees working in Maine will need to review their policy related to the handling of accrued yet unused paid vacation at the end of employment.

Maine passed an amendment to Labor Law §626 requiring unused vacation time accrued on and after January 1, 2023, to be paid to employee at the end of employment. Final wages, now including unused, accrued vacation, must be paid to terminated employees no later than the next established payday. Continue Reading New Maine Vacation Payout Law Effective on January 1, 2023