Employment Law This Week®: NLRB GC’s Workplace Policies Memo, Proposed Joint-Employer Rule, Disclosure Requirements for Startups, Sex Harassment Confidentiality Agreements

Episode 121: Week of June 18, 2018

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We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

1. NLRB GC Issues Memo on Workplace Policies

General Counsel Peter Robb has issued a memo to National Labor Relations Board (“NLRB” or “Board”) regional directors that offers guidance in applying the Board’s Boeing decision when considering the legality of rules. Certain policies, including those on civility, will be considered presumptively lawful and enforceable. Others, such as rules banning discussions of compensation, will be treated as unlawful. Robb instructs the regional offices to refer cases when there is uncertainty to the Board’s Division of Advice for direction. Genevieve Murphy-Bradacs, from Epstein Becker Green, has more:

“The General Counsel memo that was issued at the beginning of June provides very specific guidance regarding the placement of work rules into each of the three categories. The memo summarizes each of the three categories of rules. It provides concrete examples of the rules falling into each category and offers a brief analysis of the balancing test applied to each example. What is also significant about the memo is it serves as a reminder as to what has not changed since the Boeing decision. So, it makes clear that work rules that specifically ban protected concerted activity or that are promulgated directly in response to organizing or other protected activity remain unlawful. And it also makes clear that while the maintenance of a particular rule might be lawful, the application of such rules to employees who have engaged in protected activity may violate the act, depending on the particular circumstances.”

Watch the extended interview here.

2. Proposed Joint-Employer Rule Coming Soon

Joint-employer rulemaking is coming soon. NLRB Chairman John Ring has indicated that the Board majority favors issuing a rule on joint-employer liability. He expects a proposed rule to be issued by the end of the summer. The Board’s December 2017 Hy-Brand decision temporarily overturned the Obama-era Browning-Ferris test for joint-employer status, rejecting its broad “indirect control” standard. Hy-Brand was overturned when it was alleged that Board member William Emanuel had a conflict of interest and should have recused himself. The Board will also review its process for determining conflicts of interest on the part of Board members.

3. New Legislation Eases Disclosure Requirements for Startups

Startups offering equity plans get regulatory relief. The legislation that President Trump signed in May to ease regulations under the Dodd-Frank Wall Street Reform and Consumer Protection Act also contained some good news for startups. The law adjusts the Rule 701 thresholds, which allow private companies to offer equity to employees without registering the sales as public offerings. The cap will move from $5 million of securities sold in a 12-month period to $10 million. The legislation also requires the Securities and Exchange Commission to adjust the disclosure threshold for inflation every five years.

4. NJ Senate Advances Ban on Sex Harassment Confidentiality Agreements

The New Jersey Senate wants no more secrecy around harassment claims. On a 34-to-1 vote, the chamber approved legislation banning non-disclosure agreements involving sexual harassment claims. The bill is still pending in the House, where a vote is expected in the next few weeks. The legislation would also allow victims to keep their identities confidential and would establish jurisdiction in Superior Court, arguably bypassing arbitration agreements. Some are concerned that a provision in the bill would be preempted by the Federal Arbitration Act, particularly based on the recent Supreme Court ruling in Epic Systems.

5. Tip of the Week

This week, James Gelfand, Senior VP of Health Policy for The ERISA Industry Committee (“ERIC”), shares some advice on top considerations and improvements for the health savings account (“HSA”) benefit:

“As the health care system continues to move toward value-based payment models that are focused on patient engagement, better health outcomes, and improving the quality of care, more and more employers are supplementing their benefit offerings or even fully replacing traditional health coverage with HSA plans. Despite the positive benefits of HSAs, there are several limitations to high-deductible health plans that employers need to consider. For instance, HSA plans generally may not cover treatments to manage chronic conditions until the beneficiary has hit his or her deductible. HSA funds may not be used for dependents, such as adult children who are not tax dependents. And HDHP rules limit the ability of employers to steer beneficiaries to on- and near-site clinics or telemedicine options. The good news is that two pieces of pending legislation may help to alleviate some of these limitations in the near future.”

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