New Guidance Regarding Employee Handbooks Part Three: How Much Do Employers “Own” Their Logo, Copyright and Trademark?

Posted on April 21st, by Editor in Audits/Due Diligence. Comments Off on New Guidance Regarding Employee Handbooks Part Three: How Much Do Employers “Own” Their Logo, Copyright and Trademark?

By Meredith Murphy Ackerman

This post is the third in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules here and regarding Employee Conduct Rules here. While the recent guidance was issued by the National Labor Relations Board (NLRB) found here, this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

“Use” Logos, Copyrights and Trademarks – Fair or Unfair?

The NLRB recognizes that employers have a right to protect their intellectual property, including logos, copyright and trademarks. However, that protection can only go so far. Specifically, … Read More »


Ninth Circuit Calls Into Question “No Reemployment” Provisions In California Settlement Agreements

Posted on April 15th, by Jaclyn Rosinus in Crisis Management. Comments Off on Ninth Circuit Calls Into Question “No Reemployment” Provisions In California Settlement Agreements

By Mark E. Furlane, Philippe A. Lebel, and Dennis M. Mulgrew

On April 8, 2015, in Golden v. California Emergency Physicians Medical Group, the Ninth Circuit Court of Appeals broadly interpreted California’s statutory provisions regarding restrictive covenants in the context of reviewing a common clause included by employers in settlement agreements.  Though the Court declined to decide the ultimate issue – the validity of “no reemployment” clauses – the Court’s broad reading of California’s restrictive covenant statute is alarming.

After he was let go from his employment with California Emergency Physicians Medical Group (“CEPMG”), Dr. Robert Golden (“Golden”) filed a lawsuit in state court alleging a number of statutory wrongful termination claims.  After CEPMG removed the case, the parties reached an oral settlement agreement.  Later on, CEPMG memorialized the oral agreement into a written settlement agreement, which contained a provision that precluded … Read More »


Twenty-Seven Day Elections (Or Less) Likely Under NLRB’s New Quickie Election Rules

Posted on April 14th, by Jaclyn Rosinus in Audits/Due Diligence, Counseling & Compliance Training. Comments Off on Twenty-Seven Day Elections (Or Less) Likely Under NLRB’s New Quickie Election Rules

By Stephanie Dodge Gournis and Shavaun Adams Taylor

The NLRB’s “quickie election” rule goes into effect today. And while the National Labor Relations Board (NLRB) has avoided a clearly mandated time frame for processing union representation petitions, employers can expect elections to be held just 27-days (or less) after petition filing under the NLRB’s new representation election rule.

In speaking to interested stakeholders during an informational training session held on April 7th, Peter Sung Ohr (“Ohr”), Regional Director of the NLRB’s Region 13, described a timeline whereby union petitions will be processed and served electronically on employers the same or next day after filing. Pre-election hearings will be scheduled eight days later, but absent significant questions concerning representation or jurisdiction, issues of individual employee eligibility will not be litigated or resolved pre-election. Assuming consecutive-day hearings, elimination of rights to file post-hearing briefs, and a … Read More »


New Guidance Regarding Employee Handbooks Part Two: Employee Conduct Rules Can Prohibit Insubordination and Harassment But Cannot Prohibit Criticism and Debate

Posted on April 13th, by Editor in Audits/Due Diligence. Comments Off on New Guidance Regarding Employee Handbooks Part Two: Employee Conduct Rules Can Prohibit Insubordination and Harassment But Cannot Prohibit Criticism and Debate

By Meredith Murphy Ackerman

This post is the second in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules, here. While the recent guidance was issued by the National Labor Relations Board (NLRB) found here, this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

Employee Conduct Rules: What Is At Stake?

The NLRB acknowledges that employers have a right to prohibit employee insubordination. Equally important, employers have a right and an obligation to ensure that their workplace is free from harassment. However, these employer rights and … Read More »


NLRB’s New Election Rule Implementation Update

Posted on April 8th, by Jaclyn Rosinus in Audits/Due Diligence, Counseling & Compliance Training. Comments Off on NLRB’s New Election Rule Implementation Update

By Stephanie Dodge Gournis and Shavaun Adams Taylor

In preparation for the NLRB’s new “quickie election” rules going into effect next week, the NLRB General Counsel yesterday published a 36-page Guidance Memorandum intended to explain how representation cases will be processed under the NLRB’s final rule. While the lengthy memorandum describes specific changes to Board procedures in great detail, it leaves unanswered significant questions such as how Regional Directors will process petitions on a “real world” basis, what opportunities employers are left with to challenge bargaining unit compositions, and ultimately, whether the NLRB’s “quickie elections” result in significantly shorter election time periods. Indeed, the GC acknowledges that the Board “will not be able to fully assess what impact the rule will have” until after it begins processing representation petitions.  The GC instead directs the NLRB’s Regional Directors to “continue to process representation … Read More »


SEC Uses Its Powers under the Dodd-Frank Whistleblower Provisions to Warn Employers Against Attempting to Restrict Employees’ Ability to Report Potential Violations

Posted on April 2nd, by Editor in Audits/Due Diligence. Comments Off on SEC Uses Its Powers under the Dodd-Frank Whistleblower Provisions to Warn Employers Against Attempting to Restrict Employees’ Ability to Report Potential Violations

By Mary Hansen and William Carr

On April 1, 2015, the SEC announced a settled enforcement proceeding against KBR, Inc., a publicly traded, Houston-based technology and engineering company, for including “restrictive language” in confidentiality agreements used in the course of internal investigations. This is the first time the SEC has used its enforcement powers under Rule 21F-17 of the Whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Rule 21F-17 provides that “[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement … with respect to such communication.”

The language to which the SEC took exception appeared in confidentiality agreements KBR used in connection with internal investigations. The statement, which investigators required employees to sign … Read More »


New Guidance Regarding Employee Handbooks — Part One: Don’t Let Your Confidentiality Provisions “Chill” Employee Communications

Posted on April 2nd, by Editor in Audits/Due Diligence. Comments Off on New Guidance Regarding Employee Handbooks — Part One: Don’t Let Your Confidentiality Provisions “Chill” Employee Communications

By Meredith Murphy Ackerman

It is a great time for employers to review their employee handbooks. Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), recently issued a lengthy and detailed report summarizing the NLRB’s rulings on common handbook provisions. To view the complete Memorandum, click here.

The rulings in the report apply to both unionized and non-unionized employers because the National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

This LaborSphere post is the first in a series that will provide guidance based on the NLRB’s report. Over the upcoming weeks, we will summarize what the NLRB has deemed acceptable and unacceptable language for … Read More »




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