Gibbons Law Alert

Gibbons Law Alert

Tagged: Severance

The NLRB’s Ongoing Shift Toward Employee-Friendly Standards

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Posted in Employment Agreements / Labor / Restrictive Covenants

On August 18, 2023

The labor law landscape is constantly in flux as changes in presidential administrations continue to play a significant role in the development of rulemaking and decisional law at the National Labor Relations Board (NLRB or the “Board”). Over the past several months, various NLRB decisions and guidance memorandums have tipped the scales further in the employee’s favor, requiring employers to re-think their current policies and agreements to avoid the pitfalls created by these recent decisions. Employee Handbook Policies The NLRB’s August 2nd opinion in Stericycle, Inc., 372 NLRB No. 113 (2023), found an employee policy unlawful because, from the employee’s perspective, it had a “reasonable tendency” to discourage employees from exercising their rights under the National Labor Relations Act (NLRA). This decision is a departure from the previous standard where the Board examined, “the nature and extent of the potential impact on NLRA rights, and [] legitimate justifications associated with the rule.” Now a policy is unenforceable if an employee could reasonably interpret it to restrict conduct protected under the NLRA, i.e., if the policy was enacted in response to such protected conduct, or if the policy, in practice, limits rights under the NLRA. In other words, the Board’s primary concern is whether an employee believes they cannot avail themselves of the concerted activities protected...

The New Jersey WARN Act and the Coronavirus Epidemic – Update II

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Posted in Reductions in Force

On July 14, 2021

On January 21, 2020, New Jersey Governor Phil Murphy signed into law major amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act, more commonly referred to as the New Jersey WARN Act (“the Act”). These amendments require employers with 100 or more employees to give 90-days’ advance notice to the affected employees of any reduction in force involving at least 50 employees. Employees not given the required notice may bring a civil action for damages. Even when the employer complies with the Act’s notice requirements, the amendments require the employer to pay the affected employee severance in an amount equal to one week of pay for each year of service. Failure to comply with the notice requirements will entitle each affected employee to an additional four weeks of severance pay. A fuller discussion of the amendments can be found here. The amendments were to take effect on July 19, 2020, but, because of subsequent actions by the legislature in response to the coronavirus pandemic (see here), the effective date was changed to the 90th day after the termination of Governor Murphy’s Executive Order 103, issued on March 9, 2020, which declared a Public Health Emergency and State of Emergency due to the coronavirus outbreak. Until recently, Executive Order 103 remained in place without...

The New Jersey WARN Act and the Coronavirus Epidemic—An Update

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Posted in Reductions in Force

On April 15, 2020

In response to the COVID-19 crisis, New Jersey Governor Phil Murphy has signed into law new amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act, more commonly referred to as the New Jersey WARN Act. The new amendments apply to the current statute and to prior amendments enacted on January 21 of this year that were to take effect on July 19, 2020. A full discussion of the January 21 amendments can be found here. Once the January 21 amendments go into effect, the Act will require employers with 100 or more employees to give advance notice to the affected employees of any reduction in force involving at least 50 employees. Employees not given the required notice currently may bring a civil action for damages; when the January 21 amendments take effect, even when an employer complies with the Act’s notice requirements, each affected employee will be entitled to severance pay in an amount equal to one week of pay for each year of service. The new amendments to the Act have important implications for the Act’s notice and severance provisions. On March 13, 2020, President Trump utilized the National Emergency Act to declare a national emergency due to the coronavirus outbreak. Under the current WARN Act and the January 21 amendments, an...

New Jersey Amends Its WARN Act to Extend Advance Notice and Require Severance Pay

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Posted in Reductions in Force

On February 3, 2020

The New Jersey “Millville Dallas Airmotive Plant Job Loss Notification Act” (“NJ WARN Act” or “Act”), which requires covered employers to provide employees (and designated state and local government officials) with advance notice of covered “mass layoffs,” the shutdown of an establishment, or transfers of operations, was recently amended to place more onerous obligations on New Jersey employers. Senate Bill 3170, which becomes effective July 19, 2020, requires employers to provide 90 days’ (instead of 60 days’) notice to affected employees. The Act also contains enhanced severance provisions, requiring employers to pay severance to all affected employees, even those who receive proper notice under the Act. As a preliminary matter, many of the NJ WARN Act’s definitions have been amended, greatly expanding the Act’s reach. For example, “employer” is now more broadly defined to include “any individual, partnership, association, corporation, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, and includes any person who, directly or indirectly, owns and operates the nominal employer, or owns a corporate subsidiary that, directly or indirectly, owns and operates the nominal employer or makes the decision responsible for the employment action that gives rise to a mass layoff subject to notification.” Under this expanded definition, the...

Short and Concise Release Agreement Saves the Day for Employer According to NY Federal District Court

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Posted in Discrimination

On March 9, 2015

On February 24, 2015, in Brewer v. GEM Industrial Inc., the United States District Court for the Northern District of New York found a two-plus page separation agreement sufficient to dismiss the plaintiff’s court complaint because it was short, understandable by a lay person and included a provision notifying the employee of the right to seek counsel before signing it. The plaintiff, Samuel Brewer, sued his employer claiming discrimination in violation of Title VII of the Civil Rights Act of 1964 related to his termination. Before filing his discrimination lawsuit, he executed a separation agreement containing a release of claims. His employer moved to dismiss the lawsuit based on the release in the separation agreement.

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