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Updates From Our Lawyers in Arizona
At Farhang & Medcoff, our lawyers in Arizona enjoy working with our clients on a long-term basis. Forging long-term partnerships with our clients enables us to take the time to thoroughly inform and advise them about the issues at hand and all of the applicable laws and regulations. Client education is a top priority for us, as it enables each of our clients to make informed decisions about their business, transactions, or other issues.
We encourage you to take a few minutes to look through our blog archive for topics of interest to you. With a focus on federal and state employment and labor law, our blog serves as a resource for business owners across Arizona. Do note, however, that if you need personalized legal guidance, you will need to schedule a consultation with our lawyers in Arizona.
- Employment, Labor & Employment, Legal Insights
Congress Enacts New Protections for Pregnant and Nursing Employees
May 17, 2023
Employers take note—Congress’s recent enactment of the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) and the Pregnant Workers Fairness Act (“PWFA”) has significant implications for Arizona employers. Both the PUMP Act and PWFA are federal laws that expand the rights of pregnant and nursing employees by, among other measures, requiring employers to provide reasonable accommodations for pregnancy-related conditions and to create suitable spaces for nursing parents in the workplace.
Under the PUMP Act, employers must provide reasonable break time and private, non-bathroom spaces for nursing parents to pump milk during the first year of their child’s life. Importantly, the PUMP Act provisions apply to all employees regardless of their exempt or non-exempt status. Employers with fewer than 50 employees may be exempt from complying if they can establish that doing so would impose an undue hardship.
The PWFA, on the other hand, requires employers with 15 or more employees to offer reasonable accommodations to pregnant employees who experience limitations due to pregnancy, childbirth, or related medical conditions. Under the PWFA, employers are prohibited from retaliating against employees who request pregnancy and/or reproductive health-related accommodations, denying employment opportunities based on the need for such accommodation, or forcing employees to accept accommodations that are not suitable for their situation. Both the PUMP Act and the PWFA emphasize the importance of employers and employees engaging in a collaborative process to determine appropriate accommodations on a case-by-case basis.
In the event of non-compliance with these new measures, the PUMP Act allows employees to pursue legal action under the Fair Labor Standards Act (employees must provide notice to their employer and allow a reasonable period for the employer to address the issue before pursing legal action, however), while the PWFA allows employees to file a complaint with the Equal Employment Opportunity Commission to seek remedies such as back pay, compensation for damages, and coverage of legal costs. Remote employees are also covered by these laws—nursing parents working remotely must be provided with pumping breaks and should not be required to appear on video or camera during those times, and pregnant remote employees are now entitled to reasonable accommodations with regards to limitations attributable to pregnancy, childbirth, and other related medical conditions.
Importantly, these federal acts establish a minimum level of protection for pregnant and nursing employees. State laws may provide additional safeguards for employees, so it’s crucial for Arizona employers to consult legal counsel for guidance in navigating the effects of both federal and state requirements.
The attorneys at Farhang & Medcoff are ready and available to assist our clients in understanding these new protections and ensuring legal compliance in the workplace with these, and other, measures. Call us at (520) 214-2000 to schedule a consultation today.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
- Employment, Labor & Employment, Legal Insights
Ninth Circuit Dismisses ‘Equal Opportunity Harasser Defense’ in Offensive Music Case
June 12, 2023
The U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) oversees cases originating in Arizona. Notably, the Ninth Circuit recently determined that employers can be held liable under federal harassment law when sexually explicit and offensive music is played in the workplace, even if both male and female employees alike are offended. This decision cuts against a long-standing defense – the equal opportunity offender (explained further below).
In this case, warehouse workers of S&S Activewear LLC (“S&S”) alleged that supervisors and co-workers regularly played sexually offensive and misogynistic songs that conveyed derogatory and disrespectful attitudes towards women. The Ninth Circuit found that the recurrent exposure to offensive music was actionable auditory harassment and violated Title VII of the Civil Rights Act of 1964. The Ninth Circuit further rejected S&S’s defense that the vulgar songs could not have created a sexually hostile work environment against women because both male and female employees alike expressed discomfort and offense.
In sum, the Ninth Circuit found that viable claims should not be dismissed because men as well as women are offended by sexist language / conduct, or Caucasians as well as African Americans are offended by racists language / conduct. On the contrary, the Ninth Circuit essentially held that equally offending both male and female employees would only make the conduct more outrageous, not less. Thus, the equal opportunity harasser should not be used as a shield to condone offensive behavior, eliminating a long-standing and popular defense.
This ruling emphasizes the importance of fostering a respectful and inclusive work environment and will require smart employers to proactively rethink their defense to some workplace harassment claims. Employers must take complaints of harassment seriously and address them promptly to create a workplace culture that values respect, diversity, and equality. The attorneys at Farhang & Medcoff are ready and available to assist our clients in understanding these new implications and ensuring legal compliance in the workplace with these, and other, measures. Call us at (520) 214-2000 to schedule a consultation today.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
- Employment, Labor & Employment, Legal Insights
New Ruling May Extend Statute of Limitations for Arizona Race Discrimination / Wrongful Termination Claims
April 25, 2023
Attention employers: the US Court of Appeals for the Fourth Circuit (“4th Circuit”) issued a ruling that may impact whether certain race discrimination claims are viable.
The 4th Circuit, after hearing a North Carolina case entitled Chambers v. North Carolina Department of Justice, determined that the statute of limitations for Section 1981, a federal statute prohibiting intentional race discrimination, is 4 years, and not the shorter time limitation set by state law (3 years in North Carolina). This decision may affect race discrimination claims (including wrongful termination claims) in sister courts such as the 9th Circuit, which oversees claims filed in Arizona.
While the 4th Circuit decision is not binding on Arizona employers, it could illustrate how the 9th Circuit would rule when faced with a similar case. Put another way, if an employer is sued for race discrimination under Section 1981, contact our firm (or your trusted employment attorney) to ascertain if that claim is subject to a 4-year or a 1-year statute of limitations (because Arizona’s statute imposes a 1-year statute of limitations for relevant claims).
Now, more than ever, employers in Arizona should conduct audits and ensure compliance with all applicable laws, provide equal opportunities to all employees regardless of their race, gender, religion, or other protected characteristics, and take proactive steps to prevent discriminatory, retaliatory, and harassing practices in the workplace.
The attorneys at Farhang & Medcoff understand the challenges that employers face in maintaining compliance with federal and state employment laws and are ready and available to assist you. Please schedule a consultation with us today to learn more about how we can help you stay compliant with ever-changing employment laws and promote a culture of diversity, equity, and inclusion.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
- Legal Insights
NLRB General Counsel Issues Guidance on Employer Use of Confidentiality and Non-Disparagement Provisions in Severance Agreements
March 24, 2023
Last month, the National Labor Relations Board (“Board”) issued a decision in McClaren McComb, 372 NLRB No. 58 (2023), that overturned two Trump Board rulings permitting employers to include confidentiality and non-disparagement provisions in severance agreements (read Farhang & Medcoff’s full legal alert on the decision here). Under the Board’s new rule, the “mere proffer” of a severance agreement, which includes an overly broad confidentiality or non-disparagement provision, violates the National Labor Relations Act (the “Act”). Previously, the Board held that severance agreements only violated the Act when accompanied by a showing of an anti-union animus and additional coercive or otherwise unlawful conduct.
Yesterday, the Board’s General Counsel Jennifer Abruzzo issued a Memorandum to provide guidance on how to apply the McClaren McComb decision. The General Counsel issued “this Memo to assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from” the McClaren McComb decision.
The Memorandum clarifies that general employment releases, which waive only the right to pursue employment claims, remain lawful. The General Counsel also noted that signing the severance agreement is irrelevant for the purpose of finding a violation of the Act “since the proffer itself inherently coerces employees” to waive statutorily protected rights to receive severance benefits (i.e., money or COBRA coverage).
The Memo also addresses the following significant questions:
Retroactivity
The General Counsel advised that an unlawful, proffered severance agreement is subject to the Act’s six-month statute of limitations. However, she also noted that an employer may violate the Act by “maintaining and/or enforcing a previously entered severance agreements with unlawful provisions.”
The Impact of an Overly Broad Provision on the Release of Claims
The General Counsel explained that Regions would seek to void unlawful provisions only “… as opposed to the entire agreement.” Simultaneously, the General Counsel encouraged employers to consider prospectively fixing such violations by contacting any impacted employees and advising them that the overly broad provisions were null and void.
Protection of Former Employees
The General Counsel noted that Section 7 rights are not limited to discussions with coworkers, “as they do not depend on the existence of an employment relationship between employee and employer.”
The Future of Confidentiality Provisions in Severance Agreements
The General Counsel explained that a narrowly-tailored confidentiality provision, limited to a prohibition on the disclosure of proprietary or trade secret information, may be lawful. The General Counsel also found Operations Memo 07-27 (provides guidance on the enforcement of non-Board settlements) to be consistent with McClaren McComb. Notably, OM 07-27 allowed confidentiality clauses that prohibited an employee’s disclosure of the financial terms of a settlement.
The Future of Non-Disparagement Provisions in Severance Agreements
The General Counsel advised that broad non-disparagement language violates the Act. The General Counsel then concluded that a narrowly-tailored, justified non-disparagement provision that prohibits defamatory statements (i.e., “as being maliciously untrue, such that they are made with knowledge of their falsity or with reckless disregard for their truth or falsity”) may be lawful.
Other Potentially Unlawful Provisions
While the focus remains on confidentiality and non-disparagement provisions, the General Counsel further explained that the Board will also review other provisions for their potential impact on rights under the Act. The General Counsel specifically identified are the following potentially problematic clauses:
- Non-compete restrictions;
- Non-solicitation restrictions;
- No poaching provisions;
- Broad liability releases; and
- Cooperation requirements.
Finally, the General Counsel noted that a “savings clause” or disclaimer language will not cure an otherwise overly broad provision. Employers should therefore take steps now to ensure that their severance agreements for non-supervisory employees comply with McClaren McComb and the General Counsel’s recent guidance. The attorneys at Farhang & Medcoff understand these difficult challenges, and we remain ready to assist. Call us at (520)214-2000 and schedule a consultation today.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
- Legal Insights
New Decision from the National Labor Relations Board
February 27, 2023
In light of the National Labor Relations Board’s recent decision, all employers (unionized as well as non-union work environments) should revisit their use of two common provisions in their severance or separation agreements.
The NLRB’s decision appears to fundamentally alter how employers use non-disparagement and confidentiality provisions in their severance / separation agreements. In McLaren Macomb and Local 40, the NLRB addressed an unfair labor practice claim alleging that several laid-off employees were offered severance benefits in exchange for their execution of a severance agreement. The Union claimed the severance agreement contained unlawful confidentiality and non-disparagement provisions. Under the confidentiality provision, the employees would be bound to keep the terms of the agreement, including the details of the severance package offered to them, confidential with only limited exceptions. The employees also would be prohibited from making any public statements that could disparage not only the employer, but the employer’s officers, agents, other employees and affiliated entities.
Reversing the Administrative Law Judge’s decision, the Board found the confidentiality and non-disparagement provisions violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”). Unpersuaded by Board precedent allowing the use of such terms, the Board majority found that the provisions were unlawful because they interfered with, restrained, and coerced employees in the exercise of their Section 7 rights under the NLRA. Significantly, the Board found that the employer violated Section 8(a)(1) by merely proffering the severance agreements to the employees.
In doing so, the Board chose to disregard two 2020 decisions from the Trump Board. The prior 2020 decisions permitted the use of confidentiality and non-disparagement provisions in severance agreements, provided the circumstances surrounding the severance did not involve an employee discharged in violation of the Act or another unfair labor practice evidencing animus towards the exercise of Section 7 activity.
Relying on its pre-2020 precedent, the Board determined “a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and that employers’ proffer of such agreements to employees is unlawful.” The Board then concluded that the non-disparagement provision at issue violated employees’ Section 7 rights because “[p]ublic statements by employees about the workplace are central to the exercise of employee rights under the Act.” The Board also found that the confidentiality provision violated employees’ Section 7 rights because it precluded employees from “disclosing even the existence of an unlawful provision contained in the agreement” and because it prohibited employees from discussing the severance agreement with former coworkers who may receive similar agreements, as well as union representatives or other employees.
While the Board’s decision left open the possibility that agreements “narrowly tailored to respect the range” of employee rights may nevertheless be permissible, it provides little guidance as to the scope of this exception. One silver lining, the Board’s new decision does not apply to employees who serve as “supervisors” under the NLRA as supervisors are not entitled to the protections of Section 7.
With the current Board composition, we expect to see additional Board challenges to common employer policies and provisions that the new Board believes interferes with the rights of employees to discuss the terms and conditions of their employment. Employers should consider this new decision when drafting and utilizing severance agreements, particularly because unfair labor practice charges may be filed against all employers, in both unionized and non-union workplaces. In other words, all employers will be expected to comply with this new decision. The attorneys at Farhang & Medcoff are well-versed on these issues, and we stand ready to advise you on how best to proceed on future severance or separation agreements.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
- Legal Insights
House Passes Respect for Marriage Act
December 12, 2022
The U.S. House of Representatives has passed a landmark bill requiring all fifty states to recognize the validity of legal marriages formed in other states. The bill—called The Respect for Marriage Act (the “Act”)—awaits the President’s signature after passing both the Senate and the House with bipartisan votes of support.
Once signed into law, the Act will officially repeal the 1996 Defense of Marriage Act, which denied federal benefits to same-sex couples and allowed states to reject the legitimacy of legal same-sex marriages formed in other states. Many lawmakers pushed to enshrine federal protections for same-sex and interracial marriages into law following the Supreme Court’s decision to overturn federal abortion rights last June.
To be clear, the Respect for Marriage Act does not require states to legalize same-sex marriages. Rather, the Act requires all states to recognize the legal marriages formed in all other U.S. states. Should the Supreme Court vote to overturn the 2015 Obergefell v. Hodges or 1967 Loving v. Virginia decisions granting the rights to same-sex and interracial marriages, an individual state could ban such marriages but would still be required to recognize same-sex or interracial out-of-state marriages under the new Act.
The attorneys at Farhang & Medcoff know how difficult it is to stay updated on new legal developments. If you are an employer and have questions about the Respect for Marriage Act, or any other legal issue, please call us at (520)214-2000.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
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