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Michael E. Brewer

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In 2023, we helped US employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. More recently, employers faced challenges around intense political discourse boiling over in the workplace. We’ve worked hard to keep our clients ahead of the curve on these…

Presented by the Institute for Technology Law & Policy at Georgetown Law in collaboration with Baker McKenzie.

On November 8, join thought leaders from government, the judiciary, academia, and private practice for this timely gathering on the Georgetown Law campus in Washington, DC. Laws and policy surrounding the protection of trade secrets are changing as technology…

On September 8, 2023, the Department of Labor announced publication of a Notice of Proposed Rulemaking Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.

The DOL’s Wage and Hour Division is proposing to update and revise the Fair Labor Standards Act regulations implementing the minimum wage and overtime…

Special thanks to co-presenters Elizabeth Ebersole, Barbara Klementz, Dionna Shear, Amanda Cohen, Benjamin Ho, Jennifer Bernardo, Kaitlin Thompson, Marredia Crawford (Director, ID&E, Americas), Goli Rahimi, Paul Evans, Monica Kurnatowska and Blair Robinson.

Our team is busy advising multinational companies on employment law issues surrounding workplace…

With special thanks to Nadege Dallais (France), Emma Glazener (Netherlands), Fermin Guardiola (Spain), Stephen Ratcliffe (United Kingdom), Bernhard Trappehl (Germany) and Lucille Vallet (France).

Last week a group of our favorite European colleagues joined us in the Bay Area for a few special client visits. Even if you weren’t in the room, we’ll share a few key headlines here. (And, here’s link to listen in to our recent webinar: Global Employment Law Fastpass — Spotlight on Europe!)

From practical tips on the best ways to implement employee redundancies to the expected impact of the recently-passed EU Directive on Pay Transparency, here’s five things to know:

1. The EU Whistleblowing Directive (WBD) Requires Private Employers with 50 or More Workers to Establish a Local, Entity Level Reporting Hotline

The WBD was supposed to be implemented by the EU’s 27 member states by December 2021, but we are still waiting for around 8 EU member states to do so. For example, France, Belgium and Austria have transposed the WBD, Germany has not but is close. Spanish companies with at least 250 employees have until June 13, 2023 to comply. (For more, read our alert here.)

While legislation is still awaited in a number of jurisdictions, we are now in a much better position to see the challenges the WBD poses for global employers. . . and there are several.

  • It can be tricky to implement the new requirement for a local channel alongside a centralized group level reporting system (e.g., through a global “hotline”). Under the WBD, employers are not prevented from maintaining and encouraging the use of their central reporting hotline; however, now, entities with more than 50 workers, must establish a local, entity level, channel. This means employers who meet the threshold will need to establish local entity level reporting systems alongside existing global channels.
  • The second key challenge is where companies have multiple entities in one jurisdiction, whether one internal reporting channel can be established at a country level or whether the channel must be established in each entity. The implementing legislation in some countries is unclear on this point but, where the requirement is for entity level channels, this raises challenges for companies which have multiple entities within a jurisdiction but only one HR or Legal function which operates across multiple entities.

Fortunately, we have a multijurisdictional analysis matrix covering five key areas of WBD compliance at a local level available at a fixed fee per jurisdiction so that companies operating in the EU can wrap their arms around this new requirement. The matrix answers questions about the Directive’s scope and implementation requirements for internal procedures, protection of whistleblowers and data privacy issues. Our experienced team of lawyers can then assist with implementing the changes, as well as with training, communications and more.

2. The EU Pay Transparency Directive is Coming and as the Kids Say, It’s Extra

Last month the European Parliament formally adopted the Pay Transparency Directive and its provisions are likely to enter into force in most EU member states in 2026. It’s sort of a big deal, requiring significant attention and touching on many aspects of the employment lifecycle (read our detailed alert here).

A preview: there are pre-employment pay transparency requirements, and broad worker and representative rights to workforce pay information. The impact may be more muted in countries like France where works councils already have access to pay data, though the access will become much more granular under the Directive.Continue Reading A Hop, Skip and a Jump Around Europe | Insights for US Employers Operating Abroad

California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment. Under existing state law, California employers may conduct a criminal background check for most positions only after making an initial offer of employment, and they may make adverse employment decisions based on criminal history only after conducting an individualized assessment that considers the nature of the offense and the duties of the job. While these existing restrictions are significant in their own right, the proposed new law will effectively eliminate criminal history consideration in most circumstances, allowing legislators to further reduce barriers to employment for people with criminal histories.

The Fair Chance Act will, among other things, “make it an unlawful employment practice to take adverse action against an employee or discriminate against an employee in the terms, conditions, or privileges of their employment based on their arrest or conviction history.” SB 809. In essence, the proposed law will all but ban employment-related criminal background checks, except for positions for which such checks are authorized or required by statute. And in the limited circumstances where criminal history checks are permitted, the Fair Chance Act will require employers to post a clear and conspicuous notice informing applicants and employees of their rights. The new law also will impose on employers additional document and data retention obligations for completed background checks.Continue Reading California Seeks to Ban Most Criminal Background Checks

As discussed in our blog here, in February the National Labor Relations Board issued the McLaren Macomb decision prohibiting employers from “tendering” to employees separation or severance agreements that require employees to broadly waive their rights under the National Labor Relations Act.

Then, on March 22, the NLRB General Counsel Jennifer Abruzzo issued guidance addressing…

As volatility and uncertainty in the global economy continues, many multinationals are taking (or considering) major changes to their workforce composition. Labor costs are typically the largest cost center for any company, so of course businesses need to understand how best to flex up and down as markets change. At the same time, a company’s…

We are pleased to share a recent HRD America article, “Severance agreements can’t include non-disparagement, confidentiality clauses,” with quotes from Michael Brewer. This article discusses the recent NLRB ruling that companies can no longer offer severance agreements that include non-disparagement and confidentiality clauses. This ruling could potentially discourage some companies from offering severance packages altogether, while other…

On February 21, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb holding that employers may not offer employees separation or severance agreements that require employees to broadly waive their rights under the National Labor Relations Act (NLRA). In McLaren, a hospital furloughed 11 employees, presenting each with a severance agreement and general release that contained confidentiality and non-disclosure provisions. (See the exact provisions copied below.) The Board majority held that merely “proffering” a severance agreement containing unlawful confidentiality and non-disparagement provisions violated the NLRA because conditioning the receipt of benefits on the “forfeiture of statutory rights plainly has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights.”

At first blush, this may feel like a sweeping change requiring immediate action. However, it is important to consider this decision with a grain (or two) of salt, breathe and thoughtfully plan your next steps. The key points identified below are designed to help you think through a tailored approach for your organization¾there is not a one-size-fits-all solution. Your approach will depend on the type of workforce you have, your risk tolerance and what you are trying to protect. We are standing by, ready to assist, should you need further guidance.

Key Points

  • For most private, nonunion employers, the risk of an unfair labor practice charge is relatively low. While it is absolutely true that the NLRA does indeed apply to most private sector employers, the NLRB and unions tend to focus more on unionized workplaces. (If you have a unionized or partially unionized workforce, the risk is higher but read on.)

Continue Reading You’ve Heard That The NLRB Restricted The Use of Confidentiality & Non-Disparagement Provisions In Separation Agreements. Here’s What Employers Need To Do About It.