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And just like that, Memorial Day Weekend is upon us. As we roll into the unofficial start of Summer, we wanted to provide those of you who have yet to turn on your OOO notifications (well aware that sending this out Friday before MDW will not exactly land on our “marketing greatest hits” – moving on) with the latest and greatest in employment and business law updates. In this edition, we discuss limitation of liability clauses and how to ensure they . . . well . . . limit your liability, a new poster to add to your collection, a proposed law banning weight and height discrimination, and a check-in on the National Labor Relations Board’s (“NLRB”) latest crackdown on employers. So fire up the grill and let’s get to it!
Hell No We Won’t Go – National Labor Relations Board Limits Firing for Employee Outbursts
The NLRB is the administrative body that enforces the National Labor Relations Act, which protects employees’ rights to collective bargaining and to form, join, or assist unions. You have definitely heard about them recently because they’ve been super aggressive with various policies and legal changes, and because the news of the writer’s strike is making us terrified of having to watch more reality TV (at least Succession was spared, thank God). Yes, the NLRB has been busy. Not only has its recent decision in McLaren Macomb required an overhaul of severance agreements (as we’ve previously discussed) by prohibiting the use of broad confidentiality and non-disparagement provisions, the NLRB has now issued a ruling limiting an employer’s ability to fire an employee for an “outburst.”
In a recent ruling, the NLRB restored decades-old tests for determining whether an employee’s outburst or abusive conduct is protected. Previously, the employee had to first show that the employee’s protected activity (i.e., an outburst, venting on social media, or a confrontation on the picket line) was a motivating factor in the employer’s discipline. The employer then had to show that the employee would have been disciplined even in the absence of the protected activity. Now? Well, if you follow this blog you probably know where this is going: the NLRB has reverted back to the use of a set of context-specific standards to determine whether an employee’s rights have been violated. Think it’s a no-brainer decision to terminate an employee who wants to see how many four-letter words he can use to describe management? Not so fast! (we’re only half-joking – some of the fact patterns from these employee outburst cases are so absurd that they would probably be greenlit as reality TV shows – hey yo!)
If you have a problem employee, and aren’t sure about whether you have the ability to give them the axe in light of this decision, we’re here to help.
Heightening the Stakes
The New York City Council has sent shockwaves through the city, employment law blogging community, and healthy fast-casual establishments by banning discrimination based on height and weight in employment practices. You will now pick the short and unathletic employees last for intramural softball at your peril.
The bill, named the “Body Size and Physical Appearance Discrimination Law” (terrible acronym potential, missed opportunity to not call this the “Combatting Appearance Related Bias” Act – get it together City Council), would amend the New York City Human Rights Law to add both weight and height to the city’s already tall list of protected characteristics. If enacted, this would place a heavy burden on employers.
Has this news caused you to lose your appetite? Fear not – we’re here to help you stand tall in the face of these towering regulatory changes, and guide you through this brave new world where every inch and pound is celebrated in the quest for equal employment opportunities.
Limitation of Liability Clauses – Are Yours Effective?
Let’s take a quick commercial break and talk business. Limitation of liability clauses (or – at least for this section – “LOL” clauses) are commonly included in agreements like client services agreements, independent contractor agreements, and virtually any contract, for purposes of (you guessed it) limiting a party or parties’ liability in the event of a dispute, often in the form of a cap of a certain percentage of amounts paid under the agreement. An effective LOL clause also limits the categories of liability that a party would be responsible for, such as stating that a party will not be liable for consequential, punitive, indirect, or incidental damages. If you do include a LOL clause in your agreement, it’s important that it’s a standalone paragraph, in all caps and bold font, and otherwise stands apart from the rest of the agreement. The provision must also be clear and concise; overcomplicating this clause could result in it essentially being too vague and ineffective. And while we lawyers are a lot of things, we draw the line at vague and ineffective.
Do you use LOL clauses in your agreements? If you do, give them another look. And if you don’t, we strongly encourage that you consider having your trusted business attorney draft one.
New Poster Alert!
We love new poster news and the Department of Labor has obliged us by issuing a “new” Family Medical Leave Act poster (here). Employers who are covered under the FMLA (if you don’t know the answer to this question, call us after the holiday break) are required to provide their employees with this notice. This could mean sending an electronic notice or updating your online notice repository for those of you more remote, or keeping this poster in a conspicuous location where it can readily be seen by in-person employees (like the kitchen or break room). Now, as far as whether there is any new information being communicated in this new poster or it’s just for aesthetics, well that’s a good question – in any event, we still recommend updating your files and using this form going forward.
As we wish you all a wonderful holiday weekend, let’s take a moment to remember the true meaning of Memorial Day and honor those courageous individuals who sacrificed everything for our country. And for those of you working in the New York City area, don’t be afraid of seconds this year at those barbeques – the City Council has your back.
As always, if you’ve got questions, you know we’ve got answers.