The Non-Disclosure Agreement has been a hot topic in the news recently, with stories focusing on their use by President Trump, Harvey Weinstein and Presidential Candidate Michael Bloomberg. Putting the use of NDAs in perspective, partner Barbara Hoey, co-chair of Kelley Drye’s Labor and Employment practice group, was recently interviewed by Brut Media where she discussed the purpose, use and misuse of NDAs.

“I think the idea that the NDA is always a terrible thing is frankly a mistake,” stated Barbara, because “there are legitimate business uses on the company side.” On the topic of abuse, Barbara further explained that “no company can force you to sign it. That’s the bottom line. I mean, particularly in today’s world. No one can force you to settle. If you want to fight it, you could go and fight it. Everyone has the choice. Unfortunately, finances, I think, are probably the biggest issue.”

Click here to view the interview.

Partner Matt Luzadder was quoted in Bloomberg Law’s February 18, 2020, article, “Unions Elbow Into Pot Industry With State-Backed ‘Peace’ Deals.”

The cannabis industry is estimated to grow to $30 billion in sales by 2025. Accompanying that estimate is the expectation of a significant expansion in labor force across all states that have legalized medical and recreational marijuana use. But in a controversial move, some unions are asking states to mandate that pot companies sign peace agreements if they want to obtain a cannabis license.

In the article, Matt reminded businesses to weigh the benefits of labor peace agreements, and possibly a unionized workforce, when contemplating whether to enter into the agreements. Adding that the agreements and subsequent union recognition could lead to better employee recruiting and retention, but also include higher labor costs.

“At the end of the day,” Luzadder said, “I think it’s a balancing act,” and that “for many companies it may tilt toward being union friendly.”

To read the full article, click here.

Last week, workers at Cresco Labs, one of Illinois’ largest cannabis companies, voted to join the Local 881 chapter of the United Food and Commercial Workers (UFCW).  The vote, conducted by the National Labor Relations Board just two weeks after adult recreational-use sales began in the state, is the first by Illinois cannabis workers.

Cresco currently employs around 130 employees, but the vote will affect only about 100 of those workers.  Because Cresco’s cultivation employees are already covered under federal labor laws for agricultural workers, only non-cultivation personnel are eligible to join the bargaining unit, such as those handling packaging, transportation, extraction and infusion, and front-end staff.

Cresco Labs has also drawn the attention of major politicians in Illinois and across the country. Democratic presidential candidate Senator Bernie Sanders, for example, mentioned the Cresco Labs workers in a tweet last week, encouraging Cresco employees to vote for unionization and vowing to help double union membership across the country should he get elected as president.

Continue Reading Workers at Illinois-based Cannabis Company Unionize

As we close the books on 2019, and enter the new decade, New York employers should keep a list of all new legislation handy. Below is our brief summary of legislation effective 2020.

New York State Human Rights Law (NYSHRL)

In August 2019, Governor Cuomo signed groundbreaking legislation amending the NYSHRL, which we covered.  Several pieces of the law will become effective in the upcoming months, including the following:

  • January 1, 2020: Settlement agreements cannot bar individuals from speaking to an attorney, the New York State Division of Human Rights, the EEOC, local human rights commissions, or any other form of law enforcement.
  • February 8, 2020: NYSHRL will be applicable to employers of all sizes who do business in the state.
  • August 12, 2020: Statute of limitations for filing sexual harassment claims with the State Division of Human rights will be expanded from one to three years.

Continue Reading New York: 2020—New Decade, New Laws

On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.

The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.

The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.

NLRB Strengthens Employer Control Over Company-Owned Email Systems

The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system.  Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.

Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126.  In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes.  Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk.  Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”

Continue Reading NLRB Overturns Obama-era Rules

On October 13, 2019, California Governor Gavin Newsom signed into law Assembly Bill 51 (“AB 51”).  In a momentous upheaval of existing law, AB 51 prohibits California employers from requiring employees to agree to arbitrate certain disputes as a condition of new or continued employment.  AB 51 also prohibits employers from retaliating against any employee who refuses to agree to arbitration.  AB 51 takes effect January 1, 2020.

AB 51 is one of many bills to pass the desks of California governors since the beginning of the #MeToo movement.  This bill specifically forbids employers from requiring employees to “waive any right, forum, or procedure” for claims arising from the Labor Code or the California Fair Employment and Housing Act (“FEHA”), California’s principal statute outlawing employment and housing discrimination.  While AB 51 is a response to the #MeToo movement, and gained popularity as a measure aimed at bringing to light workplace sexual misconduct, AB 51’s reach is extensive, and touches any mandatory employment agreement which compels arbitration of any claim brought pursuant to the Labor Code or the FEHA.

Continue Reading California Employers Forbidden to Require Employees to Agree to Arbitrate Certain Disputes

In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020.  In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois.  In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.  Cannabis Act at § 10-50.

Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions.  One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use.  The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”  820 ILCS 55/5(a).  Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.

Continue Reading Illinois Cannabis Law, Amended: What Employers Should Know

On Wednesday, December 4th, Barbara Hoey, Co-Chair of Kelley Drye’s Labor and Employment Practice and David Frulla, Chair of the firm’s Campaign Finance and Political Law Practice hosted a one hour webinar focused on best practices of handling all aspects of politics in the workplace. They reviewed federal and state rules regarding employees’ political activity and speech in the workplace, and compliance issues related to federal campaign finance laws when a company or its executives engage in political activity. Additional topics covered include:

  • Political statements on social media,
  • When talking politics can turn into discrimination and harassment,
  • Corporate partisan and non-partisan political communications,
  • Employee volunteer activity, and
  • Do’s and don’ts for executive fundraising.

To view a recording of the webinar, click here.

What’s happening at McDonald’s should serve as an important lesson for many employers.  In the past two weeks, it was reported that its CEO resigned or was terminated (depending on what news outlet you read) because he exercised “poor judgment” by having an affair with a subordinate.  McDonald’s is facing a brave new world without its CEO with the added expense and distraction of defending new and outstanding sexual harassment lawsuits. What lessons can be learned?

In my management training I have been very direct with executives – do not date people in your division or line of report.  Full stop.  I now have many clients who – like McDonald’s – have enacted polices that prohibit workplace romances.

Why are these policies good and why should you consider one?  Several reasons: workplace romance is often a distraction to the business; it takes up time; it causes resentment and jealousy, and it is simply bad for business.

Continue Reading It Starts at the Top

Date: Tuesday, October 8, 2019
Time: 12:30 pm ET | 11:30 am CT

Managing employee requests related to disabilities (actual, perceived or alleged) remains a trap for the unwary Human Resources department. Requests may involve leave for extended or unlimited periods of time, workplace changes and more. Employers must consider numerous laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, and state and local counterparts. Know your legal obligations and reduce your risk.

RSVP HERE