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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

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

Published in the New Hampshire Business Review (10/20/22)

In January 2021, during the final days of the Trump Administration, the Department of Labor issued a new rule regarding the classification of employees and independent contractors for purposes of the federal Fair Labor Standards Act.  This rule, viewed by many as being more “employer friendly” than…

I recently wrote an article for New Hampshire Business Review on “What To Do if an OSHA Violation Arrives.”

Accidents happen.  It can happen to even the most safety-minded employers.  An employee falls from a ladder and breaks a bone.  A worker is injured on a piece of machinery.  Someone becomes ill after inhaling chemical

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