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NLRB rules that employers can't require laid-off staff to waive labor law rights
- vector_spaces 4y agoSorry for editorializing title, was trying to get it to fit the title length limit
- HarryHirsch 4y agoThat needs to be said? How are we better off with the law not applying to individuals?
- anxtyinmgmt 4y agoSo I can disparage my former employer that laid me off?
- shagie 4y agoIt depends on when you signed the non-disparagement agreement. > The decision involved severance agreements offered to furloughed employees that prohibited them from making statements that could disparage the employer and from disclosing the terms of the agreement itself. Was the agreement part of getting hired? or getting laid off? That said, I suspect that this will result in a reduction of severance agreements since there is very little that the company can gain out of a severance agreement now (I am assuming this also extends to various "you can't sue the company for wrongful termination" and similar).
- kayodelycaon 4y agoA lot of severance stuff is questionably enforceable. Discrimination lawsuits can still be successfully brought under a number of circumstances. You can’t just put a clause in it. This is especially true if the employee is laid off and forced to sign immediately.
- banannaise 4y ago> That said, I suspect that this will result in a reduction of severance agreements since there is very little that the company can gain out of a severance agreement now (I am assuming this also extends to various "you can't sue the company for wrongful termination" and similar). This wasn't the case from the establishment of the original precedent until 2020 when that ruling was reversed. We're simply going back to a state that has existed for decades, and in which severance agreements were by no means rare.
- deleted 4y ago[deleted]
- worldmerge 4y agoWhat does "disparage" mean in this case? Just like saying it was a bad situation, or bad culture or bad management?
- jagged-chisel 4y agoI would personally err toward keeping things factual, interjecting little opinion.
- shagie 4y agoNote that disparagement extends to factual statements too. https://www.g-s-law.com/blog/disparagement-and-defamation-1-2y2zs https://www.g-s-law.com/blog/disparagement-and-defamation-1-... > Disparagement means anything negative statement about someone or something. So the non-disparagement provision in your employment agreement or severance agreement applies to any and every negative statement. It does not matter if the statement is true or not, opinion or fact. If your statement makes your employer look bad, it is disparagement. If you have signed a non-disparagement agreement, the best advice is likely "decline to say anything about the subject."
- jagged-chisel 4y agoI'd definitely be arguing, via a lawyer, that "negative" is in the eye of the beholder. Employees do not benefit from layoffs, shareowners do, for example.
- hackily 4y agoCould an employee receive severance and still be able to sue to determine if there was a WARN act violation or discrimination of federally protected classes?
- kayodelycaon 4y agoIn general, yes, but not always. Depends on case law. https://www.eeoc.gov/laws/guidance/qa-understanding-waivers-discrimination-claims-employee-severance-agreements https://www.eeoc.gov/laws/guidance/qa-understanding-waivers-...
- mikeryan 4y agoJust a note. The NLRB rules on Labor Law ie Union Rules. This is pretty narrow in that you can’t be asked to waive rights that the NLRB covers which are primarily around your rights to organize and the rules that govern those processes. Not employment rights in general. For the large majority of HN who are not organized (or being organized) this wouldn’t impact them at all.
- Aloha 4y agoThis is untrue, it regulates all employers and what is permissible for employers.
- cp9 4y agoOrganize and win
- compiler-guy 4y agoThere is absolutely nothing inevitable about winning after organizing. It might help, maybe. But it also might send jobs overseas and to non union shops, just like Colorado and New Mexico have become havens for filming outside of Hollywood.
- VanTheBrand 4y agoThe majority of filming that happens in Colorado and New Mexico is done by crews that belong to IATSE Union locals. Acted in by SAG-AFTRA members and written and directed by DGA and WGA members. You don’t know what you are talking about. Productions go to these states because they offer tax incentives not because they offer non-union labor. New Mexico: https://local480.com/ https://local480.com/ Colorado: https://iatse.net/local-union-directory/?_sfm_local_short_jurisdiction=CO https://iatse.net/local-union-directory/?_sfm_local_short_ju...
- compiler-guy 4y agoI'm happy to concede the detail here--my mistake. I was misinformed about union movie labor in New Mexico and Colorado. I have revised my worldview. Nonetheless, firms move away from union labor where they can, to the point of relocating operations to do so. There is copious evidence of this.
- jfengel 4y ago[flagged]
- paxys 4y agoIn a 5-4 decision on party lines
- 4y ago
- AlexandrB 4y agoI don't get what happens if you refuse to sign one of these when you're laid off. Aren't employers still required to offer severance under laws like the WARN act? It's not like they can fire you for not signing...
- junofan 4y agoNothing. AFAIK these boilerplate agreements are just so you sign something and go away.
- chrisco255 4y agoMaybe if they're offering additional benefits beyond the legal requirements, ie longer severance, they could threaten to withhold those? I guess what some companies were doing is saying "ok, we give you 4 months severance, but you agree to waive X, Y, and Z rights".
- shagie 4y agohttps://www.dir.ca.gov/dlse/finalpay.pdf https://www.dir.ca.gov/dlse/finalpay.pdf > There is no legal requirement under California law that employers provide severance pay to an employee upon termination of employment. The corresponding part is that if you can't waive X, Y, and Z - will the company still offer severance pay?
- shagie 4y agoThe WARN act is not severance. Typically with a tech company where they are concerned about a person walking out with IP the company will instead put the employee on garden leave for the duration. It would also be completely within the WARN act to say "you are going to be laid off on April 24th, however you are required to show up for the next 60 days and do knowledge transfer to the rest of the team." And then on April 24th, you sign that you acknowledge that you've been let go, you hand in your badge, get your final paycheck and payout of any accrued vacation and then walk out the door and that's it - no other payments. Employers have never been required to offer severance. For example - the document on final pay for California. https://www.dir.ca.gov/dlse/finalpay.pdf https://www.dir.ca.gov/dlse/finalpay.pdf > There is no legal requirement under California law that employers provide severance pay to an employee upon termination of employment. --- Typically, the stuff you sign when you leave is a payment contingent upon a promise not to cause future problems for the company. Don't disparage them, don't threaten to sue them for certain things relating to being discharged from the company. If you don't sign it - you don't get the severance pay.
- dreamcompiler 4y agoGood. Now I hope they ban forced arbitration agreements. For everybody.
- charcircuit 4y agoArbitration is better for consumers and companies front most of the fees for it.
- vore 4y agoI would also be happy to pay for favorable legal decisions in disputes against my company.
- SturgeonsLaw 4y agoIf it shifts the balance of power away from companies, why are they all trying to enact those polices?
- charcircuit 4y agoBecause it's cheaper than going through the actual legal system. Companies want to save money.
- monksy 4y agoLimits on the total payout in a decision.
- JumpCrisscross 4y ago> why are they all trying to enact those polices? As monksy says, arbitrators tend to grant smaller awards than juries. So for major cases, litigation is better. But arbitration is faster and cheaper for everyone. So for smaller claims (and I mean in litigation land, so under around $1mm) arbitration almost always increases options for consumers and usually does for employees.
- mLuby 4y ago
- ok_dad 4y agoCool, so now can I talk about how my former employer offered me severance only if I signed something not to talk about it because I was about to file a long term disability case and they knew it?
- JumpCrisscross 4y ago> now can I talk about how my former employer offered me severance only if I signed something not to talk about it because I was about to file a long term disability case Your right to talk to a lawyer was never jeapordised. Your right to complain to the NLRB or threaten litigation/arbitration was also probably never in question. (Your claims may now be strengthened or expanded.) Your right to disclose it publicly, e.g. here, may not be protected.
- forevergreenyon 4y agoso I can sign a contract to get rid of my right to say/write whatever I want but I cannot sign a contract to "sell myself back into slavery"???
- joshka 4y agoThere's some interesting paragraphs in the full ruling about providing support for other employees going through similar things, which would be prevented by such a severance agreement with disparagement and non-disclosure clauses. It's worth a read.
- LatteLazy 4y agoI am actually opposed to this. I was paid off after a senior member of staff at a company I worked at did something he should not have (not sexual). I'd rather have had the pay off. No one forced me to sign anything. And I would have been worse off getting "justice" than a cheque...
- pessimizer 4y agoI don't know that it's meant to be 100% for every employee's benefit. Disallowing companies from paying off their employees not to talk cuts off a means that companies have to hide wrongdoing. After paying you off, the senior member of staff could do exactly the same thing to your replacement who, without the context of your experience, might assume that no one knew what was happening to/around them (when everyone around them knows) and/or that there was no recourse (although the company was fearful enough of you to pay you off.)
- LatteLazy 4y agoWhat you have said is true, but is misses a key element: it prevents the actual current victim getting paid. What is greater, other people's right to know about the victim, or the victims might right to get some redress?
- TheDong 4y agoLaws often have to make this tradeoff between an individual's rights or an individual's benefit, and what's good for society as a whole. Sure, it may be very convenient for you if you can toss garbage out your car's window instead of having to spend time carrying it around and finding a trash can, but if everyone tossed garbage from their vehicles, society would certainly not be a better place. Similarly, it is better if companies don't attach a price tag to such illegal (I assume?) behavior because, well, even if you individually would rather be paid off, normalizing that practice will probably be worse for society. At least that's the value call being made here. Instead of thinking "Well, I personally would rather have this", you can instead think "Would I like to live in a society that condones and expresses these values". I, personally, would rather frame things in terms of society, not individuals. I do not think victims have an infinite right to redress.
- baggy_trough 4y agoThe result will be that severance packages offer less compensation.
- dmazin 4y agoI don't think this is true. In my experience, the employer sees the non-disparagement clause as mostly unimportant[1]. The reason they compensate you is your agreement not to sue. [1] Specifically, when I have asked to remove it, they have done so without any back-and-forth and without asking for anything in return.
- rhaway84773 4y agoI’m not sure about this. In reality, there’s very little incentive for anyone to dish on their former employers other than in small private circles, which probably happens even after signing these agreements anyways. It makes you almost instantly unemployable. And even if you’re now retired, it’s almost certainly not worth the hassle it will cause. If someone has enough of a grudge to publicly complain then the suing by the company will only add to their complaint and, if anything, might be an incentive for them to publicly complain.
- lovich 4y agoWho was the head of the NLRB for both this case and the one it overturned? It smells of political decision making as the article points out it’s overturning a precedent from 2020 which itself was overturning previous precedent.
- sfteus 4y agoIn 2020, John F. Ring was the chairman, joined by William Emanuel and Marvin Kaplan. All Republicans, save for lone dissenter Lauren McFerran. McFerran is now the chairman, and Kaplan is still on the board. Ring and Emmanuel were replaced by David Prouty and Gwynne Wilcox, respectively. Both have union backgrounds. I can't seem to find the original case to see the board make up then.
- xadhominemx 4y agoThe Trump Whitehouse was in the process of intentionally contravening much of the administrative state - EPA, CDC, NRLB, IRS, USCIS, etc etc. So overturning precedent to favor anti-labor policy was perfectly consistent with the overall vision.