Severance & Confidentiality Agreements: The SEC, EEOC, NLRB and OSHA Dramatically Rewrite the Rules Impacting Every Business and Employer


In the last several years, federal regulatory agencies have attacked traditional provisions of employer confidentiality and severance agreements. Indeed, these agencies have even rejected their own previous positions on confidentiality. For example, the EEOC recently recanted its approval of severance and release agreement provisions in a 2006 consent decree with Kodak. This language had been routinely relied upon by employers in drafting severance agreements to release discrimination, harassment, retaliation and other employment law claims.

The SEC in 2016 coerced settlements with penalties exceeding $500,000 from two employers because it believed the companies had used language in severance agreements that the SEC thought could discourage employees from whistleblowing to the SEC.

Not to be outdone, OSHA issued a new policy in August 2016 addressing what it characterized as supposed employer “gag” provisions that could limit employees from whistleblowing activities.

The NLRB has also launched a massive assault on employer confidentiality and severance agreements. It now aggressively polices such agreements and employer handbook policies on non-disparagement and employee behavior for any provisions that it thinks could potentially interfere with (both union and non-union) employees’ rights to engage in “protected concerted” activity. It has found vast numbers of garden variety employer confidentiality provisions in handbooks, policies and confidentiality and severance agreements to constitute unfair labor practices under the National Labor Relations Act.

The program will review this multi-front federal agency attack on confidentiality and severance agreements, and address the new realities of drafting agreements and policies to survive agency review. The focus will be on the need to review and revise specific provisions that could draw the ire of the SEC, NLRB, EEOC, and OSHA.

This course is co-sponsored by the Federal Bar Association.

Key topics to be discussed:

•   How businesses can prevent or prevail on SEC attacks on confidentiality and severance agreements?
•   What traditional policies and agreement provisions must be reviewed and revised in light of the NLRB’s freewheeling attacks?
•   How can employers draft enforceable severance agreement language in light of the EEOC’s repudiation of its formerly approved Kodak consent decree language?
•   What agreement language will OSHA accept as not impermissibly silencing potential whistleblowers?
•   Reading the tea leaves – will the a Trump Administration affect the positions of the SEC, NLRB, EEOC and OSHA?

Date / Time: February 9, 2018

•   2:00 pm – 4:00 pm Eastern
•   1:00 pm – 3:00 pm Central
•   12:00 pm – 2:00 pm Mountain
•   11:00 am – 1:00 pm Pacific

Choose a format:

•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.

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frank-morrisFrank C. Morris, Jr. is a Member of Epstein Becker & Green, P.C. in the Litigation and Employee Benefits practices, heads the Employment, Labor & Workforce Management practice in the Washington, DC, office, and co-chairs the firm’s ADA and Public Accommodations Group.

Mr. Morris’ experience includes:

Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, information access and privacy, wage and hour, and general litigation matters in state and federal courts and administrative agencies;

Representing health care related entities, retailers, restaurants, and other hospitality related businesses, governmental entities, builders, owners, managers, architects, and lenders in public accommodation issues, including website accessibility, under the ADA and in fair housing, fair credit, and related state and local law matters;

Serving as an expert witness in ADA and Fair Housing Act matters;

Representing clients with respect to social media, Internet, and e-mail policies and litigation;

Representing and advising clients, including Audit Committees, in Sarbanes-Oxley, Dodd-Frank, and other whistleblower litigation and conducting investigations;

Advising clients on the range of employment and labor issues related to acquisitions, mergers, and RIFs and defending claims arising from those transactions;

Advising on various issues under the Patient Protection and Affordable Care Act (PPACA) and on Wellness Plans and ADA and GINA issues;

Successfully trying various jury and bench trials, including particular knowledge of handling expert witnesses and class and collective action litigation;

Serving as a mediator in various disputes;

Litigating data breach, privacy, and cybersecurity claims including class actions;

Litigating U.S. Supreme Court and Court of Appeals cases raising issues under Title VII, the ADEA, ERISA, Executive Order 11246, the National Labor Relations Act, the Freedom of Information Act, the Privacy Act, the ADA, and the Rehabilitation Act.

After law school, Mr. Morris joined the National Labor Relations Board in Washington, DC, in the appellate branch of the Division of Enforcement Litigation, and handled cases in all of the United States Courts of Appeals, as well as NLRB Supreme Court matters. He later entered private practice in Washington, representing private and public employers in EEO, disability, labor, and general litigation matters. He also served as counsel for an employer’s group, the Equal Employment Advisory Council.

Mr. Morris writes, speaks, and teaches regularly on various employment and litigation topics. He is regularly asked to share his trial experience in various ALI-ABA programs and in the annual Georgetown University Employment Law and Litigation Update. Mr. Morris has joined various Federal and state court judges on the faculty for a Georgetown-sponsored program “Litigating Employment Cases: Views from the Bench.” He also co-chaired the ALI-ABA Video Law Review “How to Present and Challenge Experts: Persuading the Jury.”

Mr. Morris authored the book Current Trends in the Use (and Misuse) of Statistics in Employment Discrimination Litigation, as well as articles on disability, public accommodations, equal employment, Sarbanes-Oxley, Dodd-Frank, fair housing law, benefits, and labor topics for journals, including Employee Relations Law Journal, The National Law Journal, and The Practical Litigator. He co-chaired the Federal Judicial Center and the American Law Institute-American Bar Association Video Law Review Program on the ADA, which included over 150 federal judges among the participants. He also co-chairs the annual ALI-ABA course “Current Developments in Employment Law,” 1994-present, where among other topics, he presents the ADA and FMLA updates and analysis as well as on emerging issues and legislative developments. He co-chairs many ALI-ABA teleseminar/webinars on current employment law and litigation topics and an annual Supreme Court review. He serves as a member of ALI-ABA’s Employment and Labor Law Advisory Board. He is a member of the Editorial Advisory Boards of National Disability Law Reporter (LRP Publications) and the Corporate Counsel’s Guide to the Americans with Disabilities Act (Business Laws, Inc.). He has addressed the trial and appellate judges of the Judicial Conferences for the Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits on disability law and developments under the ADA and employment law. He also served as co-chair of a committee charged by DC Superior Court judges with developing pattern jury instructions for FMLA and family responsibilities discrimination cases.

Mr. Morris is an adjunct professor of law at George Washington University Law School, where he teaches Discrimination Law and has taught Employment Claims and Litigation. He also served as a faculty member of the Cornell University of New York State School of Industrial and Labor Relations EEO Studies Program, as well as a frequent lecturer on equal employment, disabilities, and public accommodation law, benefits, Sarbanes-Oxley, Dodd-Frank and whistleblower issues, affirmative action, family and medical leave, labor relations, ADR, and litigation topics for various associations, business, educational, and other groups.

Mr. Morris was selected by his peers for inclusion in The Best Lawyers in America© (2013 to 2017) in the field of Employment Law—Management and named to the Washington, DC Super Lawyers list (2007, 2009 to 2016) in the areas of Employment & Labor, Employee Benefits, and Appellate. He was also recommended in the Labor and Employment Litigation category by The Legal 500 United States (2014, 2016). Mr. Morris was also included in Who’s Who Legal: The International Who’s Who of Management Labour & Employment Lawyers (2007 to 2014) and Washington DC & Baltimore’s Top Rated Lawyers (2012, 2013).

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