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Special thanks to Bradford Newman and Nandu Machiraju.

Employers have been keeping a close watch for rulemaking and action by the Federal Trade Commission (FTC) restricting non-competes. Earlier this month, the FTC answered the Executive Order’s call with enforcement activities and a proposed rule signaling a considerable effort to prioritize employer-employee non-compete covenants as

The new year always brings new challenges for employers, but California employers in particular face a world of change in 2023.

In our 75-minute “quick hits” format, we help you track what California employers need to keep top-of-mind for 2023 and provide practical takeaways to help you navigate the new landscape.

This webinar helps to

We are pleased to share a recent Bloomberg Law article, “Employers Await High Court Clarity on Attorney-Client Privilege,” with contributions by Michael Brewer. This article discusses the possible implications the US Supreme Court’s upcoming review of whether attorney-client privilege extends to business-related communications may have for employers and their counsel, who routinely exchange information blending

Join us for an in-person event with special guest, EEOC Commissioner Keith Sonderling

Commissioner Sonderling is recognized for his thought leadership on inclusive AI. He is at the forefront of advocating for rational AI enforcement that meets the mandate of equality without disrupting innovation. He has noted the value of learning the perspectives of innovators

California employers will need to review and confirm their employees’ exempt status and non-exempt hourly wage rates before the start of the new year because of an unusual change in the statewide minimum wage applicable to all California employees.

On July 27, 2022, the California Director of the Finance Department sent a letter to Governor

Nondisparagement clauses have long been a staple in settlement agreements between employers and employees as a way to discourage disgruntled employees from debasing the company after they have departed. Nondisparagement clauses often require employees to refrain from saying anything negative about their former employer at all. But employers should keep a few things in mind to ensure that the use of a nondisparagement clause does not create additional risk for the company.

  1. Keep an Eye Out for Activity by the National Labor Relations Board (NLRB)

The NLRB has signaled it may revisit current Board precedent holding nondisparagement agreements in employee settlement agreements are legal-meaning employers should watch out for Board action or decisions reverting to restrictions on nondisparagement agreements. On August 12, 2021, in her first memo as NLRB General Counsel, Jennifer Abruzzo issued a Mandatory Submissions to Advice Memorandum, setting forth that NLRB Regional Directors, Officers-in-Charge, and Resident Officers must submit certain types of cases to the NLRB Division of Advice (“Advice”) (which, in addition to other duties, provides guidance to the NLRB’s Regional Offices regarding difficult and novel issues arising in the processing of unfair labor practice charges).

Abruzzo identified 11 areas of Board case law involving doctrinal shifts from previous Board precedent that the Board, through submissions to Advice, would be examining-including “cases finding that separation agreements that contain…nondisparagement clauses…lawful.”

Abruzzo highlighted cases involving the applicability of Baylor University Medical Center, 369 NLRB No. 43 (2020), overruling Clark Distribution Systems, 336 NLRB 747 (2001), and International Game Technology, 370 NLRB No. 50 (2020) to be submitted to Advice for review.

Before it was overruled, Clark Distribution Systems stated that a provision in the confidentiality clause of a severance agreement prohibiting the employee from voluntarily appearing as a witness, voluntarily providing documents or information, or otherwise assisting in the prosecution of any claims against the company unlawfully chilled the employees’ Section 7 rights under the National Labor Relations Act (NLRA)(which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”)

The provisions at issue in the severance agreements in Baylor University Medical Center included a “No Participation in Claims” provision in which the departing employee agreed not to assist or participate in any claim brought by a third party against Baylor (unless compelled by law to do so), and a “Confidentiality” provision in which the employee agreed to keep confidential any of Baylor’s confidential information made known to the employee during their employment. The complainants alleged that by offering the severance agreements with these provisions, Baylor violated Section 8(a)(1) of the NLRA (which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act). The Board disagreed, in part because the severance agreement only pertained to postemployment activities having no impact on terms and conditions of employment. The Board also found that Baylor’s mere offer of the separation agreement was not coercive or otherwise unlawful, and that there was no sign that the agreement was offered under circumstances that would tend to infringe on the separating employees’ exercise of their own or their co-workers’ Section 7 rights.

International Game Technology (IGT) applied Baylor to a separation agreement with a nondisparagement clause,  finding in that case that the severance agreement at issue was entirely voluntary, did not affect pay or benefits that were established as terms of employment, and was not offered coercively-and the nondisparagement provision did not tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights under the Act.

What to do?

What should employers do now given the NLRB review of cases applying Baylor and International Game Technology to ensure they don’t run afoul of the NLRA when using nondisparagement clauses in settlement agreements with employees? Employers should:

  • Keep an eye out for changes in the law stemming from the NLRB’s review of cases applying Baylor and International Game Technology.
  • Use precise language to make it clear that a nondisparagement clause only applies at the time of and after termination, to avoid claims that the terms of the clause interfere with an employee’s Section 7 rights under the NLRA.
  • Consult with counsel regarding the possibility of using a savings clause stating that the severance agreement, and specifically the nondisparagement clause, are not intended to prevent the employee from engaging in protected activity under the NLRA.


Continue Reading “If You Can’t Say Anything Nice…” Keep These Tips in Mind When Using Nondisparagement Clauses in Settlement Agreements with Employees

On April 1, a state court judge in Los Angeles ruled that the California law (AB 979) mandating publicly traded companies include people from underrepresented communities on their boards violates the California Constitution. We initially reported on AB 979 here, noting that it was the first law of its kind in the US and was the second time California sought to mandate diversification of public company boards through legislation. In 2018, the first piece of California legislation (SB 826) aimed at increasing gender diversity; in 2020, AB 979 sought to increase diversity from underrepresented communities.

AB 979

The 2020 law requires publicly held corporations headquartered in California to include at least one person on their boards from an underrepresented community by the end of last year, with additional appointments required in future years. People from underrepresented communities are defined as anyone who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native, or who self-identifies as gay, lesbian, bisexual or transgender.

Under AB 979, the California Secretary of State must report annually on companies’ compliance with the law and may impose fines of $100,000 for an initial violation and $300,000 for each subsequent violation.

Continue Reading California’s Board Diversity Law Struck Down in State Court, But Movement for Inclusion and Diversity on Boards Persists

Many thanks to our Franchise, Distribution & Global Brand Expansion  colleagues Abhishek Dubé, Kevin Maher, and Will Woods for co-authoring this post.

Massachusetts’ independent contractor statute applies to the franchisor-franchisee relationship and is not in conflict with the franchisor’s disclosure obligations under the FTC Franchise Rule (the “FTC Rule”), according to

With special thanks to our data privacy colleague Helena Engfeldt for her contributions.


 On February 17, 2022, California Senator Bob Wieckowski introduced a bill (SB 1189) that would add protections for biometric information and establish a private right of action permitting individuals to allege a violation of the law and bring a civil action. The legislation is similar to the Biometric Information Privacy Act in Illinois (BIPA) which is creating expensive headaches for Illinois employers. (Read about the latest BIPA developments here.) If enacted, the law will cover all employers that use biometric time-keeping systems in California. Many employers would have to navigate the law alongside other California privacy laws such as the California Consumer Privacy Act (CCPA).

Here’s what employers need to know about SB 1189:

Covered employers?

The bill would apply to any private entity regardless of size. “Private entity” is defined as an individual, partnership, corporation, limited liability company, association, or similar group, however organized.

How does the bill define biometric information?
  • A person’s physiological, biological, or behavioral characteristics, including information pertaining to an individual’s deoxyribonucleic acid (DNA), that can be used or is intended to be used, singly or in combination with each other or with other identifying data, to establish individual identity;
  • It includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.


Continue Reading Biometric Protections May Be Coming to California Soon | Employers Should Get Ahead Now