News from Ollis/Akers/Arney Human Resources Consulting

Severance Agreements Take Another Hit

On March 22, a memorandum issued by the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo provided her perspective on a number of questions employers have been asking after the McLaren Macomb decision was issued a month ago.

First, the good news, limited as it is. Employers are not prohibited from entering into severance agreements with their employees. The bad news? Many of the severance agreements employers have used for years when terminating an employee will now be deemed illegal by the General Counsel.

In Abruzzo’s view, a severance agreement between an employer and an employee violates the National Labor Relations Act (NLRA) if it contains:

An “overly broad” non-disparagement clause.
An “overly broad” confidentiality clause.
An “overly broad” non-disparagement provision.
Requires an employee to waive the right to file unfair labor practice charges, helping other individuals to file unfair labor practice charges, and/or assisting the Board in its investigatory process.
A limit on an employee’s right to engage with others related to their “lot as employees” including access to the Board, their union, judicial or legislative, forums, the media and “other third parties.”

What happens if an employee refuses to sign a severance agreement that contains an unlawful provision?

If the severance agreement offered to an employee contains one or more unlawful provisions, the employer commits an unfair labor practice even though the employee does not sign the agreement. Employers should proceed with caution and consult experienced traditional labor counsel when considering/preparing any agreement that involves the employer providing any benefit (typically money) to an employee in exchange for the employee’s promise to not make statements related to their employment that could be perceived as critical or derogatory about the employer.

Read SpencerFane's article HERE

Upcoming EEO-1 Reporting Deadlines

Under Title VII of the Civil Rights Act (Title VII), employers with 100 or more employees and certain federal contractors must submit a report about their workforces to the Equal Employment Opportunity Commission (EEOC) by

March 31 every year. This report, known as the EEO-1 report, is a federally mandated survey that collects workforce data categorized by race, ethnicity, sex and job category.

However, the collection of this data from 2022 has been delayed, and the

portal for submitting EEO-1 reports will not even be opened before the usual deadline in 2023. Instead, the EEOC expects to open the portal for employers to begin entering 2022 EEO-1 information sometime in mid-July 2023.

The following entities are subject to EEO-1 reporting:

A private employer that has 100 or more employees (with limited exceptions for schools and other organizations);
A private employer with between 15 and 99 employees if it is part of a group of employers that legally constitutes a single enterprise that employs a total of 100 or more employees; and
A federal contractor that has 50 or more employees, is either a prime contractor or first-tier subcontractor, and has a contract, subcontract or purchase order amounting to $50,000 or more.

Read About Enforcement and More HERE

Helpful Checklists

Identifying and Retaining Key Employees

Key employees are vital to employers’ success, so it is important to identify these workers and understand how to keep them. These employees possess skills, knowledge and performance abilities that can be linked to their organizations’ overall success. Various attributes may make workers critical to their organizations. Often, these employees have special proprietary knowledge or additional certifications, degrees or licenses that help their organizations function more efficiently. Further, key employees may also help establish strong relationships within their organizations and with important external parties (e.g., clients, vendors, etc.).

The primary takeaway is that key employees have a tangible impact on their organizations and are difficult to replace, so employers should prioritize identifying and retaining them effectively.

Employers can review this checklist to help identify and retain key employees.

Download Checklist HERE

Complying With the

Equal Pay Act (EPA)

The Equal Pay Act (EPA) is one of several federal laws that aim to protect employees from discrimination in the workplace and applies to all employers, regardless of their organization’s size. The EPA, which amends the Fair Labor Standards Act, prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.

This checklist provides an overview of the EPA’s key requirements and outlines critical steps for complying with the law. It is intended to be a guide, and employers may need to take additional steps to comply with the EPA depending on the facts of a specific situation. Employers should also be aware that compliance with the EPA may not guard them against liability under other federal anti-discrimination laws. Employers should check that they are in compliance with any applicable state and local pay equity laws.

See the Checklist HERE

Management Development Cohort - Back By Request!

By request we are beginning new management development cohorts. These are small groups of leaders, from various industries, that desire to enhance their leadership and management expertise. Size is limited to three or four leaders or emerging leaders in each cohort. The format begins with open discussion of current issues and priorities and then a development topic based on the participants’ unique needs.

These are scheduled monthly at the beginning of the day and held at Ollis/Akers/Arney. Virtual options may be offered based on the needs of the cohort members.

Contact Karen Shannon for more information by clicking HERE.

Learn More HERE

OSHA Continues to Pursue Healthcare Workplace Violence Rule

Back in January, Husch Blackwell posted about the Occupational Safety and Health Administration’s (“OSHA”) intention to convene a Small Business Advocacy Review Panel (“SBAR Panel”). This Panel would help decide whether OSHA should enact a Prevention of Workplace Violence in Healthcare and Social Assistance standard.

As stated on OSHA’s Workplace Violence SBREFA page, “healthcare and social assistance services have a common set of risk factors related to the unique relationship between the care provider and the patient, client, or their visitors” that increases the probability of nonfatal workplace violence. Covid-19 only worsened that reality: wait times for services became longer; resources grew scarce due to supply chain problems; and patients and clients had to endure isolation. This standard, if enacted, will have the objective of curbing workplace violence instigated by a customer, client, or patient.

Insurers Take Steps to Overhaul

Prior Authorization Processes

Insurers, such as UnitedHealthcare, Cigna and Aetna, are announcing plans to revamp their prior authorization processes.These decisions were made as insurers await an impending federal regulation that will shorten prior authorization decision time. Prior authorization, also known as preauthorization, is when a physician must get approval from an insurer for medication or treatment before administering it.

A proposed Centers for Medicare and Medicaid Services (CMS) rule would limit the time insurers have to approve prior authorization requests. The rule is expected to be finalized in the near future. Starting in 2026, the CMS rule will require plans to respond to a standard request within seven days—instead of the current 14-day time frame—and within 72 hours for urgent requests. Physicians argue that the additional administrative steps associated with the preauthorization process can delay necessary services and increase the administrative burden.

The Changes

Major health insurers plan to revamp their prior authorization processes by boosting automation and speeding up decision-making. Starting this summer,

UnitedHealthcare will reduce the use of its prior authorization process by 20% for nonurgent surgeries and procedures. The company will also implement a national “gold card” program in early 2024, allowing certain eligible providers to perform most procedures without authorization.

Read the full article HERE