Drafting Severance And Confidentiality Agreements Amid New EEOC, NLRB, And Now SEC Scrutiny
The EEOC recently rejected release agreement language it previously endorsed in its 2006 consent decree with Kodak. Employers have relied on this language for the past several years when drafting their own severance agreements.
Relying on the language of the Kodak consent decree is no longer enough. Employment counsel must now provide employers with alternative drafting recommendations and solutions to help them avoid becoming a defendant in litigation or the subject of an EEOC investigation.
Adding to the pressure, the NLRB has expressed concern with confidentiality agreements that prohibit employee communications. Certain confidentiality provisions have been determined to be an unfair labor practice under Section 8(a)(1) of the NLRA. More recently, the SEC has jumped on the bandwagon and challenged a confidentiality agreement used by a large employer to protect attorney-client privilege in investigations.
Listen as our distinguished panel discusses best practices for drafting severance and confidentiality provisions that will likely pass EEOC, NLRB, and SEC muster. The panelists will review the latest case law developments and charges and recommend tactics for adapting to the new changes when drafting agreements.
- EEOC requirements and legal framework for severance agreements
- SEC challenges to confidentiality agreements
- NLRB requirements and legal framework
- Confidentiality provisions
- Employee behavior and conduct policies
- Non-disparagement provisions
- Drafting best practices
The panel will review these and other key questions:
- How should severance agreements be updated given the EEOC’s new stance in light of the CVS and CollegeAmerica suits?
- Upon what guidance must employers rely given the EEOC’s concern with the once-acceptable language in the Kodak consent decree?
- How must confidentiality agreements be updated given the NLRB’s announced concerns?
- Under what provisions of the NLRA is the NLRB challenging employment agreements that include non-disparagement and employee behavior provisions?
- What should employers do to avoid SEC challenges to confidentiality agreements?
Kerry E. Notestine, Shareholder
Littler Mendelson, Houston
Mr. Notestine represents employers in all aspects of employment matters, including litigation under federal, state and local anti-discrimination statutes, as well as the common law; administrative proceedings before various government agencies; and counseling employers regarding employment issues. His book, Employment Law Trials: A Practical Guide, is a leading work on the trial of employment cases.
Christina A. Stoneburner, Partner
Fox Rothschild, Roseland, N.J.
Ms. Stoneburner counsels clients on complying with applicable federal and state employment and labor laws and developing strategies to avoid liability. In addition to the preventative counseling and training she provides, Ms. Stoneburner represents employers throughout the U.S. in cases alleging violations of the FMLA, sexual harassment and discrimination. She also has experience litigating matters involving restrictive covenants and is a frequent author and lecturer on employment law topics.
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