New Pregnant Employee Law Expands Accommodation Protections

A new federal law expands the rights of pregnant employees in obtaining accommodations. Under the new law, employers must grant reasonable accommodations to pregnant employees, even if the employee is not disabled as defined by the Americans with Disabilities Act.

Employers will be required to provide reasonable accommodations to pregnant employees and applicants with temporary physical or mental limitations due to pregnancy, childbirth or related concerns, according to the Pregnant Worker Fairness Act that goes into effect in June. 

The new pregnancy act will require an employer, with 15 or more employees, to engage in good-faith conversations with an employee seeking reasonable accommodations about the employee’s needs and reasonable accommodation that could meet those needs. 

Absent undue hardship, employers are required to provide reasonable accommodations for pregnant workers, such as more frequent breaks or modified duties, and will also be prohibited from retaliating against employees who request an accommodation. 

The nature of the accommodation may vary based on the employee’s needs and the hardship posed on the employer in meeting those needs. 

Previously, the Pregnancy Discrimination Act provided pregnant employees with the right to receive accommodations only if they could identify other similarly situated people in their workplace who received accommodations. The Americans with Disabilities Act only provided the right to reasonable accommodations if the worker had a pregnancy-related disability.

The pregnant worker law does not require a pregnant or postpartum employee to have a pregnancy-related disability to receive an accommodation. 

Contact Potomac Legal Group if you are facing any pregnancy related issues in the workplace. Our attorneys have experience representing employees in matters regarding pregnancy discrimination and disability accommodation. 

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New Law No Longer Silences Victims of Workplace Harassment

Victims of workplace sexual harassment and assault may no longer be bound by non-disclosure and non-disparagement agreements, which are referred to as NDAs. Employees who have signed NDAs as a general condition of employment may no longer be silenced by their agreements, according to the “Speak Out Act,” recently signed into law.

You must still be careful and understand how the law applies before speaking out. The law prohibits enforcement of NDAs if the agreement was made “before the dispute arises.” This means that the NDA you signed before experiencing harassment or assault may not bind you to silence.

Congress intended to release employees from blanket NDAs if they experienced harassment or assault after signing the NDA. That makes sense. The legal community, however, assumes that the phrasing will lead to much litigation about its meaning. It’s important to speak with an attorney if you’ve signed an NDA and before you speak out.

Under the law, language included in any nondisclosure agreement will be unenforceable if it requires an employee to keep allegations of sexual assault and harassment confidential. Similarly, any agreements containing non-disparagement language prohibiting an employee from discussing sexual assault and harassment will likewise be unenforceable. 

The Speak Out Act does not otherwise prohibit employers from using and enforcing NDAs prohibiting the disclosure of the employer’s confidential and proprietary information, including trade secrets. 

NDAs prohibiting the disclosure of sexual assault and harassment are still permitted in settlement agreements after a victim brings the claim. If you experienced harassment, made a claim and resolved the claim by signing a settlement agreement, you likely agreed to receive compensation for agreeing to stay quiet. A settlement agreement would typically include non-disclosure and non-disparagement provisions. Read your document carefully and seek further advice from a lawyer if you have questions.

You may read and learn more about non-disparagement agreements and sexual harassment.

Congress hopes that the law “will empower survivors to come forward, hold perpetrator accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.”

The attorneys at Potomac Legal Group have extensive experience representing employees alleging sexual assault and harassment. Our attorneys are also skilled at negotiating and advising clients regarding NDAs. If you suffered sexual assault or harassment in the workplace, it is crucial that you contact Potomac Legal Group as soon as possible to be aware of your rights and raise a sexual assault dispute. 

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Get a Better Tech Layoff Severance Package

The first thing a tech worker should do when you receive a severance agreement is to call an employment lawyer. 

Every employee has the right to speak with an attorney who specializes in severance agreement reviews, negotiations and enforcing employee rights. You might have claims that are worth more than the employer is offering you for giving up your rights. 

Only an experienced lawyer can fully assess your situation. Remember, there is no “standard” agreement that you must sign. Many terms can be negotiated.

So, the first thing to do is schedule your severance review and consultation.

Next, look at the agreement and search for the red flags. Start with the big pieces:

  • Compensation: The agreement should outline the amount of your final paycheck and any additional severance pay that you’ll receive. This section should include the date of your health and dental benefits cut off, as well as any stock awards or accelerated vesting you might receive and final retirement contribution matching.

  • Non-compete and non-solicitation clauses: These provisions may prohibit you from working for a competitor or soliciting the company’s customers or employees for a specified period after leaving the company. Regulators have proposed banning non-competes, but there’s already challenges in the works to keep them alive.

  • Confidentiality and non-disclosure agreements: The agreement may require you to keep certain information about the company confidential, such as trade secrets or proprietary information.

  • Non-disparagement: The agreement may also address defamation and non-disparagement of the employer. This is not a good time to jump on social media and speak negatively about the employer who just fired you, especially if you are looking to negotiate the terms of a severance agreement.

  • Neutral Reference: Make sure the agreement memorializes the company’s obligation to only confirm your dates of employment and last position held to a third-party prospective employer. Many times, this language is included in the hire documents, but it should also be included in any severance agreement. 

  • Release of claims: The agreement may require you to release the company from any future legal claims, such as discrimination and wage and hour violations. Basically, if you sign the agreement and accept the monetary payment, then you won’t be able to sue your employer.

  • Continued benefits: The agreement may detail any continuation of benefits, such as health insurance, after you leave the company.

Learn More About Severance Agreements & Negotiation

A few other important things to do when you get the severance agreement or separation package are:

  • Verify the timeline for accepting the severance package and the consequences if you do not accept it. Severance agreements should have explicit deadlines by when you must accept the agreement. Depending on the type of termination, employers will give 21 days or 45 days for the employee to consider the terms of the agreement. That’s why you should immediately schedule a legal consultation upon receiving the agreement.

  • Check if the agreement includes any obligations for you to return company property or to not retain any company confidential information.

  • Compare the severance package with any employment contracts or company policies you may have signed, especially any nondisclosure and confidentiality agreements.

  • Check if the agreement states that the severance package is the only form of compensation you will receive in connection with your termination.

  • Check if the agreement states if it covers all the severance related issues or if there are any other agreements or documents that you need to sign.

  • Check for any provisions regarding the ownership of your work product, including any patents, trademarks, copyrights, and trade secrets developed during your employment.

  • Check if there are any provisions regarding the termination of any stock options, restricted stock units, or other equity-based compensation.

During your consultation, the attorney will address these areas and many more. The attorney should also discuss with you events leading up to the termination, even it’s part of a mass layoff. If you have previously brought concerns to HR about discrimination, retaliation, workplace accommodation, or if you’ve made a family or medical leave request, then those are narratives to share in your legal consultation. You may have claims that entitle you to more than the severance agreement offers you.

Contact Potomac Legal Group today if you have received a severance agreement or separation package and need to consult with an expert in severance negotiation and employment law. 

New FTC Rule Would Ban Noncompete Agreements

The U.S. Federal Trade Commission has broken new ground today in proposing a rule that could significantly impact employees across all industries and professions. This proposed rule prohibits employers from enforcing noncompetes on any employee or independent contractor, paid or unpaid.

This prohibition could be a game changer for how employees transition to a new job at a different company within their industry. In many industries, including those in the technology field, those in sales-related positions and medical professionals, most employees are burdened with noncompetes effectively limiting the ability of employees to work within their chosen profession and seamlessly move into a new role either with a competitor or a position with a company that could become a competitor.  

While some states, including California, ban noncompetes and narrow nondisclosure and confidentiality agreements, most jurisdictions allow noncompetes. Having a federal rule banning noncompetes would drive entrepreneurship, increase job flexibility for millions of workers and enhance competition across industries. 

The proposed rule would apply to employees and independent contractors regardless of threshold of salary. Significantly, the rule would rescind existing noncompetes and require the employer to inform employees about the rescission. 

The proposed rule would not prohibit employers from using non-disclosure and confidentiality agreements. 

Non-disclosure agreements are agreements between parties that define the scope of the confidential information and identify terms prohibiting the disclosure of such confidential information. Obligations in confidentiality agreements and terms can exist between an employee and employer, with customers, joint venture parties or other parties who may need access to confidential information for business purposes.  If the nondisclosure agreement does not act as a noncompete to limit the mobility of the employee to an alternative employer or impede the employee’s ability to establish a new business, then NDAs will not be affected by the FTC rule. 

The attorneys at Potomac Legal Group have experience negotiating and advising clients regarding noncompetes and NDAs that may impact their ability to seek alternative employment or establish a business of their own. If your employer has given you a noncompete or NDA and you are seeking a review regarding enforceability of any restrictive covenant such as a noncompete or NDA, then please contact the firm to speak with an attorney. 

$200,000 Award: Successful Unpaid Sales Commissions Arbitration

An arbitrator has awarded over $200,000 to a client represented by Natalie Koss, Esq., for unpaid sales commissions. The employer sells billions of dollars of open source software service packages annually.

The successful arbitration award is for a technology salesperson who disputed the manner his employer categorized sales. The employer improperly categorized new sales as renewals for certain deals. When he alerted his employer to the mistake, they did nothing to resolve the situation and refused to provide documentation supporting their decision.

The employee’s only option was to hire a lawyer experienced in unpaid sales commission claims. His employment contracts required him seek a resolution of commission disputes through binding arbitration. The arbitrator agreed with the case that Ms. Koss argued on behalf of her client. You can read more about the decision here.

Federal Agency Branch Chief Wins EEOC Hearing

A Federal agency branch chief represented by Natalie Koss, Esq., has succeeded in winning a contentious, five-year battle over sex discrimination. The judge delivered the decision after a seven-day EEOC hearing, which resulted in an order that would save the employee’s career.

Her experience began when the agency removed her from her position for discriminatory reasons and attempted to discipline her. The EEOC decision states that the agency was wrong and orders the agency instate her in a similar position. The decision also provides monetary and pay awards, and it directs the agency to provide specific individuals with EEO training, while penalizing those who participated in the discriminatory conduct. You can read more about the decision here.

Here’s What Happens When You Breach Your Employment or Severance Agreement

Employers are increasingly watching former employees who have signed binding agreements to protect the employer’s data, business information, reputation and customers. If you’ve signed a non-disclosure, non-compete, non-solicitation or severance agreement, then you have an obligation to follow the instructions in those agreements.

Breaches of these agreements are frequent. Employees may purposefully or accidentally breach these agreements. Unfortunately, social media, online activity and digital evidence have made it easy for employers to identify breaches. This often results in the employer sending the employee or former employee a notice of breach or demand letter.

As with any threat of legal action, an employee is in immediate need of legal counsel to understand the financial liability for the breach and the appropriate legal response. [continued]