Tuesday, August 23, 2016

What Took So Long? NLRB Rules Teaching Assistants Covered By NLRA, May Organize

In a decision anticipated by both labor and management since the start of the Obama administration in 2009, the NLRB announced today that private university teaching assistants are "employees" as defined in the National Labor Relations Act, and therefore may organize.  The Board's 3-1 ruling reverses a 2004 NLRB decision in Brown Univ. which held that teaching assistants were not "employees" under the NLRB, which itself reversed a decision in New York Univ. holding that teaching assistants were employees under the NLRA.

This line of cases is a prime example of the lack of stability in Board precedent on key issues, with the law changing back and forth based on which party controls the White House, which benefits neither labor nor management.

Expect another court challenge, but that will likely fail.

--Jonathan Nadler

--Jon Nadler, Eckert Seamans, Philadelphia

Friday, August 12, 2016

Whistleblower Alert: SEC Slaps Employer with $265k Penalty for Common Severance Agmt Language

The SEC recently announced it imposed a six-figure penalty on an employer for including what is (or what used to be) garden-variety language in a severance agreement, for violating the whistleblower provisions of Dodd-Frank.

In an apparent effort to comply with prior guidance issued by the EEOC and NLRB, the provision at issue expressly permitted the departing employee to file charges or otherwise cooperate with administrative agencies -- notwithstanding a general release of all claims.

However, the language that triggered SEC scrutiny was a proviso that the departing employee disclaimed any right to monetary recovery resulting from complaints to/cooperation with a governmental agency.  That provision has been routinely used by employers in severance agreements, with the apparent approval of the EEOC and NLRB.

The SEC, however, disagrees.  According to SEC, the right to monetary recovery from whistleblower activities within the scope of Dodd-Frank cannot be waived.

The practical impact is that for employers covered by Dodd-Frank, the impossibility of securing a release of whistleblower claims will reduce the incentive to offer severance, and will result in increased litigation.

Expect a court challenge to the SEC's interpretation.

--Jonathan Nadler

--Jon Nadler, Eckert Seamans, Philadelphia