Jeffrey Burke

Employee severance agreements are becoming increasingly common in the modern workplace. With the ever-changing business landscape, companies often find themselves having to restructure, downsize, or lay off employees.  Employers often find themselves in situations where they have to navigate separating from problematic employees.  Conversely, employees sometimes find themselves victims of problematic and potentially unlawful employment practices and have to part ways with their employer.  In such situations, severance agreements can help protect the interests of both the employer and the employee.

Drafting an effective severance agreement requires a thorough understanding of the relevant laws and legal issues. Unfortunately, I have seen numerous instances where employers have failed to properly draft these agreements, leaving them vulnerable to legal challenges; or, employees have signed questionable severance agreements that lack the proper benefits or legal protections.  In this article, I will provide 4 things to know when facing an employee severance situation.

1. Consideration: The agreement must provide adequate consideration to the employee. This typically takes the form of a lump sum payment or salary continuation for a specified period, but can also include other forms of compensation such as continued health insurance coverage, outplacement services or other benefits.  If the agreement only provides benefits to which the employee is already entitled, it lacks consideration and will not be enforceable.
2. Non-compete, non-solicitation, and non-disclosure clauses: Non-compete, non-solicitation, and non-disclosure clauses can be included in severance agreements to protect the company’s clients, trade secrets, and proprietary information. However, such clauses must be carefully crafted to ensure that they are reasonable in terms of scope and duration.  In addition, non-disclosure clauses must comply with state and federal laws, including the National Labor Relations Act, which protects employees’ rights to engage in protected concerted activity.
3. Waivers of rights and releases of claims: The agreement typically also includes a release of claims against the company along with waivers of the employee’s rights to bring legal action against the company. This means that the employee is giving up his or her right to sue the company for any claims arising out of their employment.  However, there are limits to what can be released, and certain claims such as workers’ compensation or unemployment benefits cannot be waived.  Waivers must be drafted in a clear and specific manner, and must comply with state and federal laws.
4. Proper execution: The agreement must provide the employee with adequate time to review and execute the agreement.  For certain severance agreements, allowing up to 21 or even 45 days is required.  In addition, certain severance agreements must allow the employee a 7-day window to revoke the agreement after he or she signs it.

Drafting an effective employee severance agreement requires a thorough understanding of the relevant facts and legal issues. The agreement should be tailored to the specific needs of the company and the employee, and should be drafted in compliance with state and federal laws.  The best way to ensure these goals are accomplished is to consult with a qualified attorney.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

In October 2023, labor law and workers’ rights were front and center, as the National Labor Relations Board took actions to expand collective bargaining rights and went after a prominent social media company, while California joined a short list of progressive jurisdictions to expand employee leave rights into the area of reproductive loss.  More below.

NLRB Finalizes Broader Joint Employer Rule

The National Labor Relations Board (NLRB) has issued a significant and highly anticipated revision to the joint employer rule.  If two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute. The revision to the rule is expected to impact the ability of employees working for franchisees and staffing agencies to collectively bargain with these entities as their “joint” employers.

The new rule replaces a 2020 policy that required workers to demonstrate “direct and immediate control” over key job terms for their employer to be considered a joint employer. The NLRB’s latest revision expands the scope, now allowing a franchisor or user firm to be classified as a joint employer if they have control over aspects such as pay, benefits, or other vital job conditions, regardless of whether that control is exercised directly or indirectly. This includes control exercised through third-party entities like staffing firms.

The rule is a response to concerns that some employers were avoiding responsibility under the National Labor Relations Act by claiming not to have direct control over their workers. Critics of the Rule, such Republican NLRB member Marvin Kaplan, have described it as “unprecedented and unwarranted expansion of the board’s joint-employer doctrine.”  The Rule is scheduled to take effect 60 days after publication.

California joins List of States Requiring Bereavement Leave for Miscarriages and Other Reproductive Loss

California Governor Gavin Newsom has signed a bill, S.B. 848, ensuring that workers in the state are granted up to five days of leave within three months of a reproductive loss, which includes miscarriage, stillbirth, failed adoptions, surrogacy, and assisted reproduction. The law, effective immediately, applies to all employers with five or more workers and aims to support employees during these challenging times.  California joins a small group of states and local governments, including Utah and Illinois, that have expanded bereavement leave requirements in this area.

Under this new legislation, employees must have worked for at least 30 days to be eligible for reproductive loss leave. While the leave can be unpaid if no existing policy covers it, employees can utilize accrued vacation or sick leave for compensation. Notably, this leave does not need to be taken consecutively. Furthermore, if an employee experiences more than one reproductive loss, employers are mandated to grant up to 20 days of leave in a 12-month period.  The law also prohibits employers from retaliating against employees who request or use reproductive loss leave.

In the majority of states that do not require these protections, employers may provide expanded bereavement leave but have no specific obligation to do so. 

NLRB picks fight with X Corp (f/k/a Twitter) over Alleged Retaliatory Firing of Employee who criticized Elon Musk’s Return to Work Announcement

X Corp., formerly known as Twitter, is facing legal action after the National Labor Relations Board (NLRB) prosecutors filed a complaint against the company for allegedly violating federal labor laws. The case revolves around the termination of former employee Yao Yue, who was fired after urging colleagues to challenge the company’s return from remote work policy, initiated by Elon Musk’s directive that “if you can physically make it to an office and you don’t show up, resignation accepted”.

Following Musk’s statement, Yue encouraged her coworkers not to resign, but instead to allow themselves to be terminated, citing the lack of any benefit in resigning. The NLRB prosecutors assert that X Corp. terminated Yue unlawfully, aiming to deter other employees from engaging in similar protected activities.  Yue’s actions were allegedly protected, concerted activity under the National Labor Relations Act.

The complaint seeks compensation for Yue’s direct and foreseeable monetary harm, as well as other consequential damages resulting from the company’s actions. A hearing is scheduled for January 30, 2024. The situation underscores the risk to employers for potentially infringing on employees’ rights to engage in concerted activities without fear of retaliation.

The case is X Corp.. f/k/a Twitter, Inc. and Yao Yue, case number 20-CA-313470, before the National Labor Relations Board Region 20.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

As medical marijuana becomes legal in an increasing number of states, employers are facing new challenges when it comes to managing the use of medical marijuana by employees in safety-sensitive job roles. In Pennsylvania, employers may be particularly impacted by this issue as the state has legalized medical marijuana use. As a lawyer who works with employers in Pennsylvania, I have seen the complexities that can arise when medical marijuana is used by employees in safety-sensitive positions.

Under Pennsylvania law, employers are not required to accommodate medical marijuana use in the workplace. However, employers must be careful when conducting drug tests and when disciplining employees for marijuana use. Significantly, medical marijuana users are protected under the Pennsylvania Medical Marijuana Act (MMA) against discrimination and retaliation by their employers.

One of the biggest challenges facing employers seems to be how to balance the needs of employees who use medical marijuana with the need to maintain a safe workplace. While medical marijuana may be legal and prescribed by a doctor, it can impair a person’s ability to perform certain job duties. This is particularly true for employees in safety-sensitive job roles, such as those in transportation, healthcare, and law enforcement.

To address this issue, employers should develop policies that balance the rights of employees to use medical marijuana with the need to maintain a safe workplace. Employers should consider implementing drug testing policies that account for medical marijuana use, and they should also provide training to managers and supervisors on how to identify impairment and respond appropriately. 

Employers also should be mindful of their potential obligations to provide reasonable accommodations for employees who use medical marijuana under the Americans with Disabilities Act and state disability laws. This may include allowing employees to use medical marijuana outside of work hours or transferring the employee to a non-safety-sensitive position if one is available. However, employers are not required to make accommodations that would pose an undue hardship on the business or would compromise safety.

In addition, employers should be aware of the specific legal protections afforded to medical marijuana users under the Pennsylvania MMA. Employers should avoid taking adverse employment actions against employees based solely on their status as medical marijuana users. Instead, employers should focus on job performance and take appropriate action if an employee’s use of medical marijuana interferes with their ability to perform their job safely and effectively.

The bottom line?  By developing clear policies, providing training to managers, and making reasonable accommodations, employers can balance the needs of employees with the need to maintain a safe workplace. Employers should also stay up to date on the latest legal developments in this area and, of course, seek legal guidance when necessary.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

In May of 2023, significant decisions in Pennsylvania federal courts yielded one of the largest wage and hour verdicts in history, and two significant medical marijuana decisions – one favoring the employee, and one favoring the employer.  To find out more, the details are below.

Philadelphia Federal Court delivers Largest FLSA Verdict in History against PA Company.

A federal jury in Pennsylvania has awarded a $22 million verdict to the U.S. Department of Labor in a Fair Labor Standards Act (“FLSA”) lawsuit filed against East Penn Manufacturing Co. The verdict, which represents the largest in FLSA history, supports the claims of 7,500 workers who alleged that the company denied them overtime pay. The DOL intends to seek liquidated damages equal to the verdict amount and an injunction mandating future FLSA compliance from East Penn. The trial, presided over by U.S. District Judge Gene E.K. Pratter, lasted for 30 days. The DOL argued that the employees were not compensated for over eight hours of work, which included time spent on putting on protective gear and showering to mitigate workplace hazards. The jury’s decision is viewed as a significant victory for the workers and a reminder for employers to comply with labor laws. East Penn nevertheless deemed the verdict a favorable outcome, emphasizing that the jury rejected the majority of the government’s total wage claim that was asserted.

Steel Co. unable to avoid Medical Marijuana Discrimination Suit despite Expired MMA Card

In a Pennsylvania federal court ruling, U.S. District Judge Michael M. Baylson rejected a steelmaker’s attempt to dismiss a lawsuit filed by an engineer and medical marijuana patient. The engineer, John DellaVecchio, claimed that the company, Cleveland Cliffs Steel LLC, rescinded a job offer after he failed a drug test. Despite his expired medical marijuana card, Judge Baylson determined that DellaVecchio’s claims are protected by state law, which safeguards the medicinal use of marijuana.

Cleveland Cliffs argued that they withdrew the job offer because DellaVecchio’s medical marijuana card had expired at the time of the positive drug test. However, Judge Baylson stated that the company did not cite the expired card as the reason for termination. Instead, a representative mentioned the positive test result. The judge emphasized that the company discriminated against DellaVecchio, who had a valid prescription for medical marijuana and had renewed his card.

DellaVecchio initiated the lawsuit against Cleveland Cliffs, the largest flat-rolled steel company in North America, in December 2022. He asserted that he had accepted an associate engineer position in May 2022 and had informed the company about his medical marijuana certification during the onboarding process.

Judge Baylson noted that DellaVecchio’s valid medical marijuana card, which was renewed before the job offer was revoked, had been sent to the company. The judge inferred that DellaVecchio was discriminated against based on his status as a medical marijuana cardholder, thus suggesting a violation of the Pennsylvania Medical Marijuana Act (PMMA).

Cleveland Cliffs also argued that the PMMA does not explicitly grant the right to sue for violations. However, Judge Baylson concluded that the legislature intended to establish a private right of action under the PMMA:  “Absent direct guidance from the Pennsylvania Supreme Court, it is reasonable for this court to predict that the Pennsylvania Supreme Court would rule in agreement with the Pennsylvania Superior Court and the two decisions in the Eastern District of Pennsylvania,” Judge Baylson wrote.  “As such, this court finds that the legislature intended to create a private right of action under the PMMA,” the judge added.  Consequently, Judge Baylson’s ruling denies Cleveland Cliffs’ motion to dismiss and indicates that DellaVecchio’s case can proceed, potentially allowing him to seek $150,000 in damages and other forms of relief.

The case is John DellaVecchio v. Cleveland-Cliffs Inc., case number 2:22-cv-04932, in the U.S. District Court for the Eastern District of Pennsylvania.

Third Circuit upholds termination after failed drug test for TCH where Employee failed to comply with reporting requirements of workplace police.

The Third Circuit Court of Appeals upheld the dismissal of a lawsuit filed by a former Toshiba employee, Cherie Lehenky, who claimed she was wrongfully terminated after testing positive for THC, which she used to treat her disability. The unanimous three-judge panel ruled that Lehenky failed to demonstrate that Toshiba’s drug-free policy unfairly targeted individuals with disabilities.

Toshiba has a drug-free workplace policy, the panel said, under which no employee can be found to be under the influence of any illegal drug or alcohol while on duty. The policy also states that the company will conduct random drug testing and that any positive test will result in termination.  The policy further states that if an employee is taking a drug while at work, they need to inform the company of the drug, dosage and the prescription from an authorized doctor, or it will otherwise be treated as an illegal drug.

The panel found that Lehenky did not comply with the company’s policy, in that Lehenky did not report her TCH use consistent with those requirements.  Rather, when selected for random drug testing in 2019, she warned a human resources employee that she may test positive for THC due to the over-the-counter supplement she took.  When her test returned positive for THC, Lehenky said she was terminated.  Lehenky, who had been employed by Toshiba for 18 years, stated that she used CBD oil derived from hemp to alleviate symptoms of her inflammatory autoimmune disease.

The panel clarified that Toshiba’s drug-free workplace policy applies to all employees and does not place a higher burden on individuals with disabilities. As Lehenky did not demonstrate that she was fired because of her disability or that Toshiba was aware of her condition, her claims of disparate impact and disparate treatment were dismissed.

The case is Cherie Lehenky v. Toshiba America Energy Systems Corp., case number 22-1475, in the U.S. Court of Appeals for the Third Circuit.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

In my experience handing workplace harassment cases, I have seen firsthand the damage that these types of claims can cause to both employees and employers. To avoid such claims, it is crucial for employers to take proactive measures to prevent harassment in the workplace.

Here are some basic steps that employers can take to prevent workplace harassment:

• Establish clear policies and procedures: Employers should have a written policy that outlines their commitment to preventing harassment in the workplace. This policy should clearly define what constitutes harassment and provide a detailed procedure for reporting and investigating any complaints. Employers should also provide training to all employees on the policy and the consequences of violating it.

• Create a positive workplace culture: A positive workplace culture can go a long way in preventing harassment. Employers should promote open communication, respect, and inclusion. They should also ensure that all employees are aware of the company’s values and mission.

• Conduct regular training: Regular training on harassment prevention should be mandatory for all employees, including managers and supervisors. The training should cover the definition of harassment, the company’s policies and procedures, and how to report any incidents.

• Respond to complaints quickly and thoroughly: Employers must take all complaints of harassment seriously and investigate them promptly. The investigation should be thorough and impartial, and the employer should take appropriate action if the complaint is substantiated.

• Avoid retaliation: Employers should not retaliate against employees who report harassment. Retaliation can take many forms, including termination, demotion, or harassment. Employers should have a clear policy against retaliation and ensure that all employees are aware of it.

Workplace harassment claims can be costly for employers in terms of money and reputation. By taking proactive measures to prevent harassment, employers can create a positive workplace culture and reduce the risk of harassment claims.  To best implement these steps, employers should seek guidance from experienced employment counsel.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.