Drafting Severance and Confidentiality Agreements Amid Continued SEC, EEOC, and NLRB Scrutiny
Avoiding Agency Challenges to Confidentiality/Whistleblower, Non-Disparagement, Cooperation, No Rehire, Covenants Not to Sue
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Employment and Workers Comp
- event Date
Wednesday, October 25, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will provide practical guidance on drafting severance and confidentiality agreements that will withstand heightened SEC, EEOC, NLRB, and OSHA scrutiny. Our experienced panelists will discuss how to update or avoid contract provisions to minimize the likelihood of suits or agency challenges.
Mr. Prokott advises businesses regarding complex workplace matters. He represents employers of all sizes, including multinational public and private companies, established and emerging private businesses, and nonprofit organizations. Mr. Prokott advises employers on: hiring practices, including issues related to non-discrimination, non-competition, pre-employment testing, background checks and state law compliance; reviewing and drafting offer-of-employment letters and employee handbooks; preparing executive and sales compensation agreements; preparing non-competition, non-solicitation and confidentiality agreements, and advising on the enforceability of these types of agreements; and best practices for managing and implementing employee restructurings and voluntary and involuntary workforce reductions, including release requirements under the Age Discrimination in Employment Act and Older Workers Benefits Protection Act, and compliance with the Worker Adjustment and Retraining Notification Act, among other matters.
Mr. Zwisler’s broad range of labor and employment experience includes overseeing and conducting comprehensive audits of employment policies and practices, including drafting and editing employee handbooks, executive contracts, and severance, noncompetition, non-solicitation, confidentiality and trade secret agreements. He also oversees and conducts wage and hour compliance audits and provides counsel on FLSA compliance.
Ms. Koss actively litigates both commercial and employment cases and has successfully negotiated settlement agreements on behalf of corporate and individual clients. Ms. Koss also represents clients in business tort, employment disputes and copyright infringement cases and has tried both bench and jury cases in federal and state courts.
Federal agencies continue to target provisions of employer confidentiality and severance agreements that they believe are overly broad or restrictive.
The SEC has banned severance agreements that prohibit employees from contacting regulators or accepting whistleblower awards in exchange for receiving severance payments or other post-employment benefits.
Further, the EEOC has scrutinized and will continue to be critical of clauses that prohibit employees from cooperating with others filing a charge of discrimination or lawsuit. Similarly, OSHA will not approve settlement agreements that prohibit or restrict employees from participating in protected activity.
Adding to the pressure, in its recent McLaren Macomb decision, the NLRB has determined that certain non-disparagement and confidentiality provisions in severance agreements are unlawful. Moreover, the NLRB's General Counsel released a memo in May 2023 claiming that most employee noncompetition covenants, including those in severance agreements, violate Section 8 of the NLRA.
In light of SEC, EEOC, NLRB, and OSHA scrutiny, employment and corporate counsel must guide employers in drafting severance and confidentiality provisions that will withstand the heightened enforcement standards and decrease the likelihood of litigation.
Listen as our distinguished panel discusses recent SEC settlements, EEOC charges, and NLRB developments and recommends tactics for drafting enforceable agreements.
- SEC challenges to severance agreements
- EEOC and OSHA requirements and legal framework for severance agreements
- NLRB requirements and legal framework
- Confidentiality provisions
- Employee behavior and conduct policies
- Non-disparagement provisions
- Noncompetition provisions
- Drafting best practices
The panel will review these and other key issues:
- What should employers do to avoid or withstand SEC challenges to severance agreements?
- How can counsel to employers respond to the EEOC's concern with non-cooperation, confidentiality, or non-disparagement provisions?
- How must confidentiality and severance agreements be updated given the NLRB's recent activity?
- What are the NLRA provisions on which the NLRB is basing its recent decisions?
- What confidentiality provisions run afoul of OSHA's position on confidentiality provisions?
- What internal process changes can companies make to effect similar results as nondisclosure agreements?
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