Drafting Severance and Confidentiality Agreements Amid Continued SEC, EEOC and NLRB Scrutiny

Avoiding Agency Challenges to Confidentiality/Whistleblower, Non-Disparagement, Cooperation, No Rehire, Covenants Not to Sue, and More

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, October 24, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide practical guidance on drafting severance and confidentiality agreements that will withstand heightened SEC, EEOC, NLRB and OSHA scrutiny. Our experienced panelists will discuss how to update or avoid contract provisions to minimize the likelihood of suits or agency challenges.

Description

Federal agencies continue to target provisions of employer confidentiality and severance agreements that they believe are overly broad or restrictive.

The SEC has banned severance agreements that prohibit employees from contacting regulators or accepting whistleblower awards in exchange for receiving severance payments or other post-employment benefits.

Further, the EEOC rejected previously endorsed language in severance agreements. Counsel to employers have relied on the EEOC’s prior approval of language in its 2006 consent decree with Kodak when drafting severance agreements.

Adding to the pressure, the NLRB has expressed concern with confidentiality agreements that prohibit employee communications. The NLRB has determined certain confidentiality provisions are an unfair labor practice under Section 8(a)(1) of the NLRA.

In light of the increased SEC, EEOC, NLRB and OSHA scrutiny, employment and corporate counsel must guide employers in drafting severance and confidentiality provisions that will withstand the heightened enforcement standards and decrease the likelihood of litigation.

Listen as our distinguished panel discusses recent SEC settlements, EEOC charges and case law developments, and recommends tactics for drafting enforceable agreements.

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Outline

  1. SEC challenges to severance agreements
  2. EEOC requirements and legal framework for severance agreements
  3. NLRB requirements and legal framework
    1. Confidentiality provisions
    2. Employee behavior and conduct policies
    3. Non-disparagement provisions
  4. Drafting best practices

Benefits

The panel will review these and other key issues:

  • What should employers do to avoid or withstand SEC challenges to severance agreements?
  • How can counsel to employers respond to the EEOC’s concern with the once-acceptable language in the Kodak consent decree?
  • How must confidentiality agreements be updated given the NLRB’s announced concerns?
  • Under what provisions of the NLRA is the NLRB challenging employment agreements that include non-disparagement and employee behavior provisions?
  • What confidentiality provisions run afoul of OSHA's position on confidentiality provisions?

Faculty

Ash, Jonathan
Jonathan D. Ash

Partner
Fox Rothschild

Mr. Ash handles employment litigation and counsels clients on a variety of employment issues, including leave...  |  Read More

Morris, Frank
Frank C. Morris, Jr.

Member
Epstein Becker & Green

Mr. Morris leads the firm’s Employment, Labor and Workforce Management Practice in the Washington, D.C., office,...  |  Read More

Yoshor, Shira
Shira R. Yoshor

Shareholder
Greenberg Traurig

Ms. Yoshor focuses her practice on labor and employment matters and a wide variety of complex commercial litigation....  |  Read More

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