Tag: CUPAHR

ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire – CUPA-HR

by CUPA-HR | May 10, 2023

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. Employers will now have until August 30, 2023, to complete all required physical inspections of identity and employment-eligibility documents. This extension aims to ease the transition for employers who have been using the temporary flexibilities throughout the pandemic.

Background

In March 2020, ICE introduced the temporary flexibilities in response to the COVID-19 pandemic, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. The flexibilities were extended several times, with the most recent extension set to expire on July 31, 2023.

During the pandemic, employers with employees taking physical-proximity precautions were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Remote examination methods, such as video link, fax or email, were permitted, with “COVID-19” entered as the reason for the physical-examination delay in the Section 2 Additional Information field on the Form I-9. Once the employees’ documents were physically examined, employers would add “documents physically examined” with the date of examination to Section 2 or Section 3 of the Form I-9, as appropriate.

The recent announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment-eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.

What’s Next

On August 18, 2022, ICE issued a proposed rule to allow alternative procedures for examining identity and employment-eligibility documents. CUPA-HR submitted comments to ICE encouraging it to move forward expediently and ensure that a remote review process remains available for all employers. The public comment period closed on October 17, 2022, and DHS is currently reviewing the comments. While the Fall 2022 Regulatory Agenda had forecast a final rule to be issued in May 2023, ICE’s announcement indicates a final rule will be issued later this year.

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May 10, 2023
HR and the Courts — May 2023 – CUPA-HR

by CUPA-HR | May 10, 2023

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Court of Appeals Denies a Teacher’s Religious Accommodation Request to Be Excused From Student Pronoun Rule

A divided 7th U.S. Circuit Court of Appeals (covering Illinois, Wisconsin and Indiana) denied a Christian teacher’s request for a religious accommodation to be excused from the school district’s student pronoun rule, which required teachers to address students by the name and pronoun of their choice. Kluge v. Brownsburg Community School Corp. (7th Cir. No. 21-2475, 4/7/23). The Justice Department filed an amicus brief in support of the school district’s denial of the accommodation. The teacher requested an accommodation from the student pronoun rule, claiming that it violated his religious beliefs. The teacher requested that he be allowed as a religious accommodation to address all students in his classroom by last names only.

The two-judge majority concluded, over the dissent of one judge, that the accommodation request constituted an undue hardship for the school district. The court ruled that granting the accommodation would disrupt the learning environment and disturb both students and faculty.

The teacher has asked the full 7th Circuit to rehear and rule on the 2-to-1, three-judge decision. The 7th Circuit decided on April 27, 2023, to await full circuit court review until after the Supreme Court rules on a similar case regarding the scope of the employer-hardship provisions on deciding a request for a religion-based accommodation. The case pending before the Supreme Court is Groff v. DeJoy, argued before the Supreme Court on April 19, 2023.

Survey Concludes That Workers in Office Spend 25% More Time on Mentoring and Other Job-Development Activities, Compared to When They Work Remotely

In-office workers spend 25% more time on mentoring and career-development activities than when the same workers work remotely from home. In its 4/10/23 Daily Labor Report, Bloomberg published a poll completed by WFH Research, which compiled results from a survey of 2400 adult workers who were able to work from home and the office. The survey compared the workers’ in-office mentoring, formal training, and career development time to the time they spent on those activities when they worked remotely from home.

In the same Daily Labor Report, Bloomberg referenced a Commentator study that found that workers who have more face-to-face interaction with managers are promoted at a higher rate. The Commentator concluded that, “Employees’ social interactions with their mangers can be beneficial to their careers.”

Complaints Filed Under Federal Civil Rights Act of 1866 Are Subject to the Four-Year Federal Statute of Limitations, Not State-Based Statute of Limitations

The 4th U.S. Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently ruled that Section 1981 complaints of discrimination filed under the Civil Rights Act of 1866 as amended are subject to the applicable federal four-year statute of limitations. The appeals court rejected the defendant’s assertion that the complaint was subject to the shorter three-year North Carolina statute of limitations on wrongful termination claims, even though the complaint was brought in North Carolina. The court concluded that the complaint was brought solely under the federal statute so the federal statute of limitations applied. The case was Chambers v. North Carolina Department of Justice et, al (4th Cir. No. 22-01629, 4/17/23).

This case will likely have implications for Section 1981 complaints of discrimination filed against state-based public institutions of higher Education.

NLRB Imposes Expanded Remedies Against Employers Found to Have Egregiously or Repeatedly Violated Their Duty to Bargain in Union Negotiations

In a case involving a meat processor found to have repeatedly violated its duty to bargain in good faith with its union, the NLRB has issued a ruling that it would impose at least the following enhanced remedies against the offending employer and future similar employers. The enhanced remedies include reimbursement of the union’s bargaining expenses and lost pay to employees who sat in on bargaining sessions in which the employer bargained in bad faith. The case is Noah’s Ark Processors (N.L.R.B. Case # 14-CA-255658, 4/20/23).

In addition, the order requires a reading of unfair labor practice notice and explanation of employee rights by the company’s CEO or by an NLRB staffer in the presence of the company’s CEO, a mailing of the notice to employees homes, the signing of the notice by a company official, publishing of the notice at local news outlets that have broad circulation and local appeal, and authorization of NLRB staffers to visit the employer facility to assess compliance and posting requirements. These remedies will have application to private colleges and universities, which are subject to NLRB jurisdiction.

Federal Court Dismisses Claim of Religious Discrimination Following Termination of University Employee for Violation of COVID Safety Policies

A federal district court for New Jersey dismissed an employee’s claim of religious discrimination, filed under Title VII of the Civil Rights Act, following the university’s termination of the employee for refusing to follow the university’s mandatory COVID safety policies. The federal district court judge dismissed the claim that the employee was unlawfully terminated for failing to follow the university’s mandatory COVID safety policies, because the employee failed to identify a sincere religious belief that prevented the employee from complying with the safety policies. The case was McKinley v. Princeton University (3:22-cv-05069, Fed D Ct N.J. 4/28/23). The safety policies included wearing a mask, asymptomatic contact testing, and collecting saliva samples from asymptomatic employees.

The court in its eight-page decision dismissing the case granted the plaintiff leave to refile to correct the failure to identify a sincerely held religious belief.

Split Jury Verdict Results in $1.4 Million in Damages Awarded to a Professor Claiming Retaliation in the Denial to Re-Review Her Tenure Denial

While a federal court jury rejected five of plaintiff’s claims of sex discrimination and parental status in the university’s denial of her tenure, it did award the professor a verdict on her claim that the denial of re-review of her tenure denial was in retaliation of her past charges of discrimination. The federal court judge affirmed the jury verdict, which resulted in awarding the plaintiff $1.4 million in damages. The case was Veikos v. Trustees of the University of Pennsylvania (E.D. Pa. 2:20-cv-04408, judgement entered 5/2/23).

The federal judge rejected the university’s claim that the professor failed to properly mitigate her back-pay and front pay damages.

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May 10, 2023
WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

by CUPA-HR | May 1, 2023

On April 28, the Department of Labor’s Wage and Hour Division (WHD) will begin enforcing remedies for employer violations of an employee’s right to reasonable break time and space to pump breast milk under the Fair Labor Standards Act (FLSA). These remedies were codified into law under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which was included in the Consolidated Appropriations Act of 2023 — year-end legislation to fund the federal government.

As a reminder, the PUMP for Nursing Mothers Act amends the FLSA to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

According to a WHD fact sheet on FLSA protections to pump breast milk at work, there will be several legal or equitable remedies employers will be liable for if they are found to have violated an employee’s right to reasonable time and space to pump in the workplace. The document states that remedies may include “employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.” The fact sheet also clarifies that the remedies listed above will be available regardless of whether an employee experienced retaliation.

In addition to the fact sheet, the WHD has issued several resources on the PUMP for Nursing Mothers Act’s provisions since its enactment. On February 9, the WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees. Additionally, on March 16, the WHD held a webinar to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the Act.

For more information on the PUMP for Nursing Mothers Act and FLSA protections to pump at work, the WHD has provided a resource website with general guidance, additional resources and the webinar on the PUMP for Nursing Mothers Act. CUPA-HR will keep members apprised of any updates to this law and others regarding FLSA protections for pregnant and nursing workers.

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May 1, 2023
Managing a Multi-State Workforce: Key Findings From the CUPA-HR Survey and a Public University’s Hybrid Approach – CUPA-HR
by CUPA-HR | April 19, 2023

As higher ed institutions face pressure to fill open positions and offer more flexible work opportunities, many are responding by recruiting and hiring employees who live and work in a state different from where their institution’s primary campus is located. CUPA-HR’s Multi-State Workforce Survey was developed to better understand institutions’ policies, practices and challenges related to out-of-state workers.

Notable findings:

89% of responding institutions employ out-of-state workers.

The most common types of out-of-state workers are adjunct/part-time faculty and salaried/exempt staff.

On median, institutions employ out-of-state workers from 8 states.

Most institutions have restricted policies for both recruiting and hiring out-of-state workers.

Of the one third of institutions who avoid hiring from certain states, the most common states institutions avoid hiring from were California, New York, Washington and Colorado.

Many institutions provide salary ranges on job postings, but most do not adjust salaries based on location.

Despite the challenges of a multi-state workforce, excluding out-of-state workers can decrease the quality of the candidate pool and may cause institutions to miss out on top talent. Institutions pursuing, or considering pursuing, out-of-state workers may want to look at Clemson University’s hybrid approach to managing a multi-state workforce.

Charged by senior leadership to explore options for out-of-state employment, Clemson University’s HR team, led by Chief Human Resources Officer Ale Kennedy, convened a cross-campus workgroup that reached out to several schools about their out-of-state work approaches. After reviewing the data, the workgroup recommended that in-house HR manage the green or “easy” states and outsource the more challenging states in order to minimize risk. To learn more about Clemson’s approach — and the full findings from the Multi-State Workforce Survey — be sure to watch CUPA-HR’s recent webinar “The State of the Multi-State Workforce: Employment Practices and Challenges.”

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April 19, 2023
HR and the Courts — April 2023 – CUPA-HR

by CUPA-HR | April 12, 2023

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

NLRB Rules Graduate Student Fellows With No Teaching or Research Assistant Responsibilities Are Not University Employees and Cannot Unionize

A National Labor Relations Board (NLRB) regional director in Boston recently issued a decision that approximately 1,500 graduate student fellows at Massachusetts Institute of Technology who receive a grant but do not have any teaching or research assistant responsibilities are not employees, cannot unionize, or join the university’s existing union of approximately 3,700 graduate teaching and research assistants (Massachusetts Institute of Technology (N.L.R.B. Regional Dir. No. 01-RC-304042, 3/13/23)).

The existing union of graduate teaching and research assistants is organized by the United Electrical, Radio and Machine Workers of America. According to the decision, those graduate teaching and research assistants who receive an annual compensation package of approximately $120,000, including a tuition subsidy, stipend and medical insurance are university employees. Also according to the decision, the fellows who have no teaching or research responsibilities and typically work on their own thesis projects with some funding from the university are not university employees. The decision holding that the fellows are not employees is tied to a provision in the Columbia University decision, which held that students who have “unfettered ability” to pursue their own goals would not be considered employees because their compensation would be similar to a scholarship.

Union Complaint Dismissed After Employer’s Attempt to Increase a Unionized Employee’s Work Production Ruled Permissible On-the-Job Coaching

An NLRB administrative law judge recently dismissed a union claim that an employer committed an unfair labor practice by unilaterally changing working conditions when it suggested that a unionized staff reporter increase his output of written articles. The judge concluded that when the newspaper editors suggested that the reporter strive to write 15 articles every 30 days, that this action was a permissible attempt to coach, develop and improve the quality and production of the reporter’s work (The NewsGuild-CWA v. The Morning Call LLC (NLRB ALJ No. 04-CA-292410, 3/9/23)).

The newspaper editors began meeting with the reporter every two weeks when they noticed he was lagging behind the paper’s standard article production goal of five articles per week. The judge noted that the editors did not threaten the reporter with penalties if he did not meet the goals. More importantly, the judge concluded that the goals were not a change in working conditions because they were less that the goals given to the rest of newsroom staff. The case clearly enforces an employer’s prerogative to meet with a unionized employee and suggest ways to improve job performance consistent with applicable workplace standards.

EEOC Reports a 20 Percent Increase In Discrimination Charges and a Substantial Increase in Monetary Benefits Garnered for Victims of Discrimination in Fiscal Year 2022

The Equal Employment Opportunity Commission (EEOC) reported a 20 percent increase in the number of discrimination charges it received during fiscal year (FY) 2022 “as the nation emerged from the pandemic.” The charges filed against employers increased from 61,331 charges received in FY 2021 to 73,485 new charges received in FY 2022. The EEOC’s announcement came as the Biden administration proposed an increase in EEOC funding for the new fiscal year.

The EEOC also announced that it increased the amount of monetary benefits it obtained for victims of discrimination in FY 2022. The agency reported that it obtained $513 million in benefits for victims of discrimination in FY 2022, up from $484 million in benefits obtained for discrimination victims in FY 2021.

OSHA Reports a 20 Percent Increase in Inspectors Under the Biden Administration

The number of federal workplace safety inspectors has increased by 20 percent during the Biden administration. The federal safety agency hired 227 inspectors during 2022, bringing its total inspectors to 900. Across all Occupational Safety and Health Administration (OSHA) staff positions, the agency has grown from 1,800 staff members to 2,100 members (17 percent). This enhances OSHA’s ability to perform more workplace safety inspections and investigate more pending employee workplace safety complaints. Another result of this significant increase in inspectors is that one in five inspectors now has less than one year of on-the-job experience.

OSHA has faced criticism that it has not adequately responded to worker complaints, and the Department of Labor’s inspector general recently issued a negative report. The inspector general concluded that the agency in recent years (both 2019 and 2020) “… did not consistently ensure that complaints and referrals were adequately addressed, nor did it regularly enforce hazard abatement timelines.”

Court of Appeals Skeptical of Employees’ “Fundamental Right” to Refuse State-Imposed Hospital Employer’s COVID-19 Vaccine Mandate

In a case involving a group of nurses who refused their hospital employer’s COVID-19 booster requirement for a number of personal, non-religious and non-disability-related reasons, the U.S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) appeared skeptical at oral argument (Sczesny et al v. The State of New Jersey, Governor Philip Murphy (3rd Cir. Case no. 22-2230, Arg 3/21/23)). The hospital enforced a state-mandated requirement in New Jersey. The attorney for the nurses argued that they had a “fundamental right” to refuse the vaccine boosters. The Court of Appeals panel noted that a number of courts that have ruled on this issue found no “fundamental right.”

NLRB Issues Warning That Severance Agreements With “Overly Broad” Confidentiality/Gag Provisions Relating to Non-Disparagement Are Illegal Under Recent NLRB Case Law

NLRB general counsel issued guidance on March 23, 2023, that previously negotiated severance agreements with overly broad confidentiality/gag orders relating to non-disparagement of employers are illegal under the March decision of McClaren Macomb. The NLRB considers employer enforcement of such provisions to be a violation of the NLRA.

The NLRB general counsel suggested that in designing new confidentiality agreements, employers should target “dissemination of trade secrets” based on “legitimate business justifications.” Additionally, agreements should be narrowly drafted to prohibit “maliciously untrue statements.”

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April 12, 2023
Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

by CUPA-HR | April 12, 2023

On April 6, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) on student eligibility for athletic teams under Title IX. The proposed rulemaking focuses on transgender students’ eligibility to participate on athletic teams as legislation and policies at the federal, state and local levels have been introduced to ban transgender student participation in athletic programs.

Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

The NPRM comes after the Biden administration announced its intention to release such a proposed rule after it excluded language on transgender student eligibility in athletics in its June 2022 Title IX proposed rule. The rule comes as policymakers at the federal, state and local levels have introduced and passed legislation that bans transgender participation on women’s athletic teams. Most recently, the House of Representatives passed H.R. 734, the Protection of Women and Girls in Sports Act, out of the Education and the Workforce Committee, where it now awaits a full floor vote. The bill would prohibit federally-funded education programs or activities to operate, sponsor or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls, defining “sex” as an individual’s reproductive biology and genetics at birth.

Public comments in response to the NPRM will be due 30 days from the date of publication in the Federal Register. CUPA-HR will work with other higher education associations to fully analyze the NPRM and respond accordingly.

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April 12, 2023
Pay Increases for Higher Ed Employees Sharply Improve, But Still Fall Short of Inflation Rate – CUPA-HR
by CUPA-HR | April 3, 2023

New research from CUPA-HR has found that although employees across the higher education workforce saw the most substantial pay raises in 2022-23 than in the past several years, they are still being paid less than they were in 2019-20 in inflation-adjusted dollars.

Some of the key findings from an analysis of CUPA-HR’s higher ed workforce salary survey data from 2016 to 2023:

This academic year, raises for higher ed employees were the largest seen in the past seven years, and all position types (administrators, professionals, staff and faculty) received an increase of at least 1.11 percentage points compared to the previous year.

Tenure-track and non-tenure-track teaching faculty continue to receive the smallest pay increases of any higher ed employee category. In 2022-23, tenure-track faculty saw a median pay increase of 2.9 percent and non-tenure-track faculty saw an increase of 3.2 percent. Tenure-track faculty salary increases have not kept pace with inflation since at least 2015, and non-tenure-track salary increases last met or exceeded inflation in 2016-17, meaning full-time faculty in general continue to be paid less every year in inflation-adjusted dollars.

Staff, which is typically the lowest-paid category of higher ed employees, saw the biggest raises this academic year at 5.3 percent (up from 2.9 percent in 2021-22).

Explore this data and more in CUPA-HR’s newest interactive graphic.

CUPA-HR Research

CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders. CUPA-HR has been collecting data on the higher ed workforce for more than 50 years, and we maintain one of the largest workforce databases in existence. CUPA-HR also publishes numerous research publications and interactive graphics highlighting trends and issues around higher ed workforce planning, pay equity, representation of women and racial/ethnic minorities and more. Learn more about CUPA-HR research.

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April 3, 2023
Setting Up New Leaders for Success From Day One – Strategies for HR – CUPA-HR
by CUPA-HR | March 29, 2023

Consider this scenario: An institution hires a new leader who has previously worked in higher ed. Assuming the individual has already acquired the knowledge and skills necessary to get the job done, HR guides them through a brief onboarding and launches them into their new role. Six months later, HR checks in with the leader to see how things are going and discovers a dissatisfied leader and a team in turmoil. What went wrong?

According to Sara Reed, vice president of people and talent at Western Governors University, HR sometimes falsely assumes that new leaders with higher ed experience know how to get the job done. Consequently, expectations may not be clearly articulated, which can create rough patches for the leader to navigate on their own. In the recent CUPA-HR webinar Building Leader Confidence in Transition: We Can’t Do It Alone, Reed explained that to help create a smooth transition for new leaders and ensure success from day one, HR can consider implementing these strategies in the pre-hire and onboarding phases:

Pre-hire: Provide accurate and clear position descriptions. HR should be very clear about what the institution is looking for in the role. Is the institution looking for a different leader than in the past, or a leader who meets the status quo? What context is there surrounding the job description that the candidate should be aware of? For example, will the new leader be leading a team that is in transition or turmoil? If so, what resources and contacts can help the new leader in a situation like this?

Pre-hire: Be clear about the mission of the institution. What mission does this new leader need to advance and further? Do job candidates see the values and beliefs of the institution displayed on the website? Who is included in the interview process? Can a broad number of people be included in the hiring process to send the message that the position is of high importance?

Pre-hire: Have the individual meet the team they’ll be leading. Create an opportunity during the interview process for the potential new leader to meet the team they’ll be leading. Allowing job candidates and future team members to have conversations beforehand could reveal potential areas of conflict between the two parties.

Onboarding: Pair the new leader with a skills mentor and a cultural mentor. While a new leader’s knowledge, abilities and experiences in previous positions can be beneficial in helping them succeed in their new role, they still must learn the cultural and political landscape. In the webinar, Reed shared her personal testament to having a “nuts and bolts” mentor and a cultural mentor when she first began working in higher ed. While a “nuts and bolts” mentor explains institutional policies and how to use systems, a cultural mentor can help clue in a new leader to the cultural and political landscape and serve as a “safe space” to ask questions and get insights. As Reed suggested in the webinar, a cultural mentor is someone you can approach after a meeting and ask, “What just happened?”

Interested in more pre-hire and onboarding strategies and tactics to help new leaders in transition? Watch the webinar recording: Building Leader Confidence in Transition: We Can’t Do It Alone.

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March 29, 2023
NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

by CUPA-HR | March 27, 2023

On March 22, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to all field offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board decided that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements. According to the NLRB’s press release, the memo is to be used as guidance to assist field offices responding to inquiries from workers, employers, labor unions and the public about implications stemming from McLaren Macomb.

The memo offers guidance on the decision’s scope and effect of the McLaren Macomb decision. In the memo, Abruzzo stated that the decision has retroactive application, and she directed employers who may have previously offered severance agreements with “overly broad” non-disparagement or confidentiality provisions to contact employees to advise them that such provisions are now void and will not be enforced. Abruzzo also clarified that confidentiality clauses that are “narrowly tailored” to restricting dissemination of proprietary information or trade secrets may still be lawful “based on legitimate business justifications,” and that non-disparagement clauses that are limited to “employee statements about the employer that meet the definition of defamation as being maliciously untrue (…) may be found lawful.”

With respect to supervisors, Abruzzo specified that supervisors are not generally protected by the NLRA, but she added that they are protected from retaliation if they refuse to offer a severance agreement with broad non-disparagement or confidentiality provisions to their employees.

As a reminder, CUPA-HR will be hosting a webinar on the McLaren Macomb decision Thursday, March 30 at 1:00 p.m. ET. The webinar will cover the McLaren Macomb decision and this subsequent memo, and presenters will discuss how the decision may fundamentally change how and when colleges and universities may use confidentiality and non-disparagement provisions. Registration is required for participation, but free to all CUPA-HR members.

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March 27, 2023
NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

by CUPA-HR | March 20, 2023

On February 21, the National Labor Relations Board (NLRB) issued its decision in McLaren Macomb deciding that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements.

The Board explained in its press release on the decision that if an employer offers a severance agreement with a provision that requires the employees to broadly give up their rights under the Act, the employer violates the NLRA. The simple offering of the agreement “is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.” NLRB Chair Lauren McFerran said “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.”

McFerran issued the decision alongside NLRB Democratic Members Gwynne Wilcox and David Prouty, while Republican Board Member Marvin Kaplan dissented. The decision reverses two Trump-era NLRB decisions, Baylor University Medical Center and IGT d/b/a International Game Technology. Both of these decisions determined severance agreements with confidentiality and non-disparagement provisions not unlawful in and of themselves.

Importantly, this decision does not apply to public sector employees as the NLRB only has statutory jurisdiction over private sector employees. Additionally, the ruling does not apply to employees in supervisory or managerial positions.

CUPA-HR will hold a webinar on this rulemaking and its potential impact on higher ed institutions on March 30, 2023 at 1:00 p.m. ET. Registration is required for participation, but free to all CUPA-HR members. To register, please visit the event’s web page.

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March 20, 2023