EEOC and Title VII: Analysis of the EEOC's position on sexual orientation under Title VII, including a discussion of the Supreme Court's same sex marriage ruling in Obergefell v. Hodges and the seemingly competing standards of Title VII. Recent NLRB Decisions: A discussion of the practical impact of recent NLRB decisions on the day-to-day enforcement of workplace policies, including arbitration agreements, workplace conduct policies, severance agreements and investigation procedures.

1. Labor Talk:
An Employment Law Update
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Blog: bassberrylabortalk.com @BassBerryLabor

2. Retroactive Application of
Obergefell v. Hodges
Angelica Fortney

3. Background
Baker v. Nelson (SCOTUS 1972) – dismissed plaintiffs’
appeal challenging a Minnesota law that limited
marriage to persons of the opposite sex for failure to
present a “substantial federal question.”
DOMA – 1996 federal law that provided:
► Sec. 2: States/territories not required to recognize same-
sex marriages under the law of other states/territories.
► Sec. 3: Marriage is defined for federal purposes as
between one man and one woman.
Lawrence v. Texas (SCOTUS 2003) – struck down
laws prohibiting same-sex intimacy.
U.S. v. Windsor (SCOTUS 2013) – struck down Sec. 3
of DOMA.
3

4. Background
Post-Windsor agency guidance:
► IRS released Revenue Ruling 2013-17, FAQs, Notice
2013-61, and Notice 2014-19.
► DOL released Technical Release 2013-4.
Outcome of Guidance:
► Established “place of celebration” rule for federal tax and
ERISA purposes, respectively.
► Required amendments to qualified retirement plans.
► If same-sex spouses were provided certain welfare
benefits, they were entitled to refunds for open tax years.
► Generally prospective effect.
- Guidance allowed but did not require retroactive application of
Windsor for federal tax purposes.
► Retrospective with regard to refunds.
4

5. Obergefell v. Hodges
Facts: Following Windsor, James Obergefell and John
Arthur, a gay couple, married in Maryland in July 2013.
Ohio, their state of residence, refused to recognize
their marriage. Arthur was terminally ill and wanted
Obergefell to be recognized as the surviving spouse
on the death certificate.
► They filed suit in the federal Southern District Court of
Ohio, where they were granted a TRO against the local
Ohio Registrar.
► Arthur died in October. The district court rejected the
defendants’ motion to dismiss.
► In December, the district court ruled that Ohio’s refusal to
recognize same-sex marriages from other states was
unconstitutional.
5

6. Obergefell v. Hodges
The defendants appealed to the Sixth Circuit
Court of Appeals.
► Obergefell was heard with 5 other district court
cases (including one from TN).
Sixth Circuit ruling: The Sixth Circuit ruled
that the same-sex marriage ban and non-
recognition policy were not unconstitutional,
citing precedent of Baker v. Nelson.
► This created a Circuit split between the Sixth
Circuit and the Fourth, Seventh, Ninth and Tenth
Circuits.
6

7. Obergefell v. Hodges
Plaintiffs appealed to the Supreme Court of
the United States, which granted cert.
► The cases were further consolidated.
Court’s ruling: the Fourteenth Amendment’s
Due Process and Equal Protection Clauses
prohibit states/territories’ same-sex marriage
bans and require states to recognize same-
sex marriages performed in other
states/territories.
► Effect: Superseded Section 2 of DOMA.
7

8. Post-Obergefell
Obergefell did not break much new ground
for purposes of administering employee
benefit plans
Post-Obergefell IRS Notice 2015-86 amplifies
previous guidance:
► Obergefell does not require qualified retirement
plans to be amended because that should have
been done under Windsor.
- Such plans may implement discretionary amendments
to allow optional changes.
► Health and welfare plans may need to be
amended depending on the terms of the plan.
8

9. Post-Obergefell
Other consequences
► Insured plans – state insurance law impact
► Self-funded plans may be vulnerable to
litigation
► Income will no longer be imputed for state tax
purposes
► Many employers are considering eliminating
domestic partner coverage
9

10. Retroactivity of Obergefell
Post-Windsor IRS guidance provided that
retroactive application of Windsor is allowed
but not required.
► Post-Obergefell guidance confirms this is still an
option, but also does not require it.
Recent cases have challenged employers’
denial of retroactive application
► Post-Windsor Schuett v. FedEx and Cozen
O’Connor P.C. v. Tobits
Social Security Administration may soon be
applying Obergefell retroactively.
10

11. Hypothetical
Yolanda is an employee of ABC Clothing (“ABC”), a large
retail chain.
After Windsor (and her state’s subsequent recognition of
same-sex marriage), she married her partner, Shay, and
applied for benefits in 2014.
ABC denied coverage for Shay because it did not cover
same-sex spouses of employees.
Shay suffered extensive injuries in a car accident later that
year. Her medical bills amounted to $75,000.
After Obergefell, ABC amended its plan effective July 1, 2015
to cover same-sex spouses.
Yolanda (represented by a prominent LGBT rights
organization) filed an EEOC charge against ABC regarding
the previous denial of health coverage.
What are ABC’s options?
11

12. EEOC and Title VII
Dustin Carlton, Tim Garrett and Mary Leigh Pirtle

13. Discrimination on the
Basis of Sex
Two modes of analysis under Title VII:
► Discrimination because of sex (treating men
and women differently because of their sex)
► Discrimination based on sexual stereotyping
- Price Waterhouse case
- Not promoted because did not act and appear
“feminine” enough

14. Sexual Orientation
Courts have largely agreed: sexual
orientation is NOT a protected category
under Title VII
But Price Waterhouse opened the door for
expansion of protection to:
► Transgender persons
► persons discriminated against because they were
not conforming to sex-based stereotypes
- Employer could legally discriminate against gay
employees for being gay but not because they were
acting insufficiently masculine or feminine

15. EEOC Decision
July 15, 2015 EEOC decision
► “We conclude that sexual orientation is
inherently a ‘sex-based consideration,’ and an
allegation of discrimination based on sexual
orientation is necessarily an allegation of sex
discrimination under Title VII.”
► “Sexual orientation is sex discrimination
because it necessarily entails treating an
employee less favorably because of the
employee’s sex.”

16. Does the Decision Have Legs?
Arose in the context of a federal employee
But, position taken by EEOC
► Likely to apply in public and private sectors
► Likely to process charges raising this theory
Ultimately, courts will determine
Isaacs v. Felder, M.D. Ala. (Oct. 29, 2015)
– summary judgment for employer, but
reversed Magistrate Judge on Title VII
protection

17. Recent Decisions
Northern District of Illinois refuses to extend Title VII
protection to discrimination based on sexual orientation.
► Igasaki v. Illinois Dept. of Financial and Professional Regulation
► Court focused on language of statute – sexual orientation is not
a listed protected category.
EEOC announces $115,000 settlement in case where
employer refused to allow male employee who “presented as
a woman” to use female restroom.
► Employer was also required to issue a letter of apology and is
under a 3 year consent decree requiring employer to revise EEO
policies to cover transgender status and to give employees
additional training.

18. Recent Decisions
Central District of California holds that sexual
orientation discrimination is a form of sex or
gender discrimination.
► Videckis v. Pepperdine University
- Plaintiffs alleged they were unlawfully discriminated
against on the basis of their sexual orientation, in
violation of Title IX.
- Defendant moved to dismiss on the grounds that Title
IX does not cover sexual orientation discrimination or
gender stereotype discrimination.
- The court rejected Defendant’s argument and found
that sexual orientation discrimination is not a category
distinct from sex discrimination or gender stereotyping.
- In essence, it is either or both.

19. Discrimination Because of Sex -
Scenario
Paul comes to you (the HR Manager) and
explains that he would like to be referred
to as the female “Paulette” in the future.
Paulette explains that she is transitioning
into a female and would like to use the
women’s restroom.
Paulette provides a doctor’s note that
states using the women’s restroom is part
of Paulette’s transition therapy.

20. Considerations?
What is a proper response to Paulette regarding
request to use the women’s restroom?
Should you announce Paulette’s transition to other
employees?
How do you respond to employee concerns about
Paulette’s use of the women’s restroom?
Can you require Paulette to use segregated
restroom facilities?
If Paulette did not have a doctor’s note regarding
her transition, can you require she provide one
before she is allowed to use the women’s
restroom?

21. OSHA Guidance
Employees entitled to have access to
restrooms based on their gender identity
EEOC agrees
Employees may not be limited to using
facilities that are an unreasonable distance
or travel time from the employee’s
worksite.

22. State Laws Specific to Restroom
Use
Colorado, Delaware, District of Columbia,
Iowa, Vermont, and Washington
► Each have laws stating that employers must
permit employees to have access to
restrooms in accordance with their gender
identity, rather than their assigned sex at birth.

23. Discrimination Based on Sexual
Stereotyping - Scenario
Dave reports to you (the HR Manager) that
his co-worker, Steve, has been making
comments about Dave’s pink shirt and has
made the comment that “real men don’t
wear pink.”
Dave also complains that Steve mocks the
way Dave walks by saying that Dave
“prances around.”

24. Considerations?
Has Dave complained of sexual
harassment?
Does Dave being homosexual or
heterosexual have any impact?
Does it matter if the comments about
Dave’s masculinity were made by a
female?

25. Questions?

26. A California Perspective
California has always been at the forefront
of prohibiting discrimination based on
Sexual Orientation or Gender Identity.
► 1992 – Prohibited discrimination based on
“Actual or Perceived Sexual Orientation”
► 2000 – FEHA amended to prohibit all forms of
Sexual Orientation Discrimination
► 2004 – FEHA amended to also prohibit all
forms of Gender Discrimination

27. A California Perspective
Protection of Gender Identity
► The California FEHA protects “Gender” in
three ways:
- (1) a worker’s actual sex;
- (2) an employer’s perception of a worker’s sex
- (3) an employer’s perception of the worker’s
personal expression of gender, even when not
consistent with the worker’s sex at birth
► Employees must be permitted to dress and
groom in ways that reflect their gender
identity.

28. A California Perspective
Case Law and Other Developments
► AB 1266: The School Success and
Opportunity Act
- Requires that schools allow transgender students
to fully participate in all school activities, sports
teams, programs, and facilities in accordance with
their gender identity.
► DFEH v. American Pacific Corporation
- Held that employees cannot be required to use a
bathroom or locker room of their birth-assigned sex

29. A California Perspective
San Francisco Guidance
► “While any given individual’s gender identity or
expression may make other people uncomfortable,
refusing to treat transgender or gender variant people
in the same manner as other people is a violation of
San Francisco laws.”
► Must allow individuals to use the restroom that is
consistent with his/her gender identity
► Must make reasonable accommodations for showers
► Must not require proof of gender, unless all required
► Must make reasonable accommodations for health
needs, including time off to recover from transition-
related surgery

30. Many Other Local Rules
Laws in 17 States, D.C., and Puerto Rico
140+ local jurisdictions explicitly protect
transgender persons in some way
► Examples:
- Tucson, AZ
- Los Angeles, CA
- San Diego, CA
- Boulder, CO
- Denver, CO
- Atlanta, GA . . .

31. Recent NLRB Decisions and Their
Practical Effects on the Workplace
Bob Horton & Michael Moschel

32. 2015 Quick Recap
New NLRB Guidance
► Issued March 18, 2015
Quickie Election Rules
► Went into effect in April 2015
- Danbury Hospital
► Additional Changes in September 2015
- Electronic Signatures

33. 2015 Quick Recap
Annual Performance and Accountability
Report
► Over 2000 offers of reinstatement and $95
million in back pay awards
Growth in Number of Charges
► Over 23,000 charges filed in 2015
► Rise of roughly 11% from 2014
► Estimated to rise above 25,000 in 2016

34. Protected Concerted Activity
Arbitration Agreements
Workplace Conduct Policies
Investigation Procedures
Severance Agreements

35. Arbitration Agreements
Class Action Waivers:
To Be or Not to Be?

36. Arbitration Agreements
DR Horton 1-NLRB
► Employees would reasonably believe they
were prohibited from filing ULP
► Collective grievance is concerted protected
activity and a substantive right that cannot be
waived.
► Unequal bargaining strength
► Disregarded GC Memo 10-06 and FAA

37. Arbitration Agreements
DR Horton 2-Fifth Circuit
► FAA trumps
► But must clarify right to pursue ULP
► Class action procedures not substantive right
► Support in other circuits

38. Arbitration Agreements
The Empire Strikes Back - Murphy Oil 1
► Class Action waiver is ULP

39. Arbitration Agreements
The Empire Strikes Back - Murphy Oil 1
► The agreement had provided:
- By signing this Agreement, Individual and the
Company waive the right to commence, be a party
to, or [act as a] class member [in, any class] or
collective action in any court action against the
other party relating to employment issues. Further,
the parties waive their right to commence or be a
party to any group, class or collective action claim
in arbitration or any other forum.

40. Arbitration Agreements
The Empire Strikes Back - Murphy Oil 1
► In March 2012, following the lawsuit, the
company amended its agreement to state:
- Notwithstanding the group, class or collective action
waiver set forth in the preceding paragraph, Individual
and Company agree that Individual is not waiving his or
her right under Section 7 of the National Labor
Relations Act (“NLRA”) to file a group, class or
collective action in court and that Individual will not be
disciplined or threatened with discipline for doing so.
The Company, however, may lawfully seek
enforcement of the group, class or collective action
waiver in this Agreement under the Federal Arbitration
Act and seek dismissal of any such class or collective
claims.

41. Arbitration Agreements
► Fifth Circuit again reversed, reaffirming its
decision in DR Horton 2.
► However, the agreements before revision
were upheld as violating 8(a)(1) because that
waiver had applied to “all claims or charges,”
not just a waiver of litigation.
Return of the Jedi – Murphy Oil 2

42. Arbitration Agreements
So . . . Where are we now?

43. Arbitration Agreements
Plotting of the Board
► Interestingly, the Board did not seek an appeal of
either DR Horton 2 or Murphy Oil 2 to the
Supreme Court.
► However, the Board has continued to hold that
class action waivers in arbitration agreements
violate the NLRA.
► In December 2015, the NLRB issued decisions
striking arbitration agreements in the Tenth and
Eleventh Circuits.
► And that trend has continued in 2016.

44. Arbitration Agreements
What to Do Now
► Consider the jurisdiction
► If you maintain the waivers
- Include a carve out for filing ULP charges
- Consider opt-out provisions and advise to seek
counsel
- But see On Assignment Staffing Services, Inc.
- severability clause
- Require class claims deemed unwaivable to be
litigated in a judicial (as opposed to arbitral) forum

45. Arbitration Agreements
And of course . . .

46. Workplace Conduct Policies
The NLRB and the Erosion of Workplace
Civility Policies

47. Workplace Conduct Policies
Most employee handbook policies include
some version of “play nice.”
It is reasonable to expect that your
employees will treat each other, their
supervisors, and members of the public
with respect.
However, these policies can very easily
run afoul of the NLRA.

48. Workplace Conduct Policies
Case in Point – Hills and Dales General
Hospital
► Daniel Corlis was disciplined based on
company policies after posting the following
comment on Facebook:
- “Holy shit rock on [S!]. Way to talk about the
douchebags you used to work with. I LOVE IT!!!”

49. Workplace Conduct Policies
Case in Point – Hills and Dales General Hospital
► The policies provided:
- (1) We will not make negative comments about our fellow
team members, and we will take every opportunity to speak
well of each other.
- fellow “team members” could include managers
- (2) We will represent Hills & Dales in the community in a
positive and professional manner in every opportunity.
- would prohibit any public statements that were not positive.
- (3) We will not engage in or listen to negativity or gossip. We
will recognize that listening without acting to stop it is the
same as participating.
- Beyond just “gossip” to engaging in or listening to
“negativity” (which could include protected concerted activity)

50. Workplace Conduct Policies
Case in Point – Hills and Dales General
Hospital
► This case highlights how one simple phrase,
such as “or negativity”, or one overbroad
term, such as “team members,” can turn an
otherwise lawful policy into an unlawful policy.

51. Workplace Conduct Policies
So How Do I Avoid These Pitfalls?
► Remember that employees have the Section
7 right to criticize or protest their employer’s
labor policies or treatment of employees.
► This includes even false statements!
► Thus, you must avoid rules that can be read
to prohibit protected concerted criticism of the
employer or management, even if false.
- Exception: maliciously false statements are not
protected.

52. Workplace Conduct Policies
Avoid
► Policies that prohibit “disrespectful,”
“negative,” “inappropriate,” or “rude” conduct
towards the employer or management.
Draft
► Policies that require employees to be
respectful and professional towards
coworkers, clients, or competitors, but not the
employer or management.
► “Insubordination” but not “Disrespectful”

53. Workplace Conduct Policies
Consider these Examples of Unlawful
Policies
► “Be respectful to the company, other employees,
customers, partners, and competitors.”
► Do “not make fun of, denigrate, or defame your
co-workers, customers, franchisees, suppliers,
the Company, or our competitors.”
► No “defamatory, libelous, slanderous, or
discriminatory comments about the Company, its
customers and/or competitors, its employees or
management.”

54. Workplace Conduct Policies
The Use of Cameras and Camera Phones
in the Workplace
► Caesar’s Entertainment d/b/a Rio All-Suites
Hotel and Casino

55. Workplace Conduct Policies
Caesar’s Entertainment
► The policy provided:
- Personal pagers, beepers, and cell phones worn by
employees must not be visible or audible to guests and
should not impact job performance. The use of
personal cellular/digital phones is prohibited while on
duty but is allowed during break time in designated
break areas. Camera phones may not be used to take
photos on property without permission from a Director
or above.
- Cameras, any type of audio visual recording equipment
and/or recording devices may not be used unless
specifically authorized for business purposes (e.g.,
events).

56. Workplace Conduct Policies
Caesar’s Entertainment
► Board held that these provisions were
unlawfully overbroad.
► Photographing and videotaping are protected
by Section 7 when employees are acting in
concert for their mutual aid and protection,
and no “overriding employer interest” is
present.

57. Workplace Conduct Policies
Caesar’s Entertainment
► What constitutes an “overriding employer
interest?”
- Confidential and Proprietary Information
- Client Privacy
- Patient Privacy
► The policy in Caesar’s Entertainment failed to
link the policy with any legitimate business
interests.

58. Workplace Conduct Policies
Recording Devices
► Whole Foods Market Group, Inc.
- The company emphasizes an “open door” culture
where employees are free to “speak up and speak
out” on any issues, work related or not.
- To facilitate this policy, the company enacted a
policy prohibiting the recording of conversations by
employees.

59. Workplace Conduct Policies
Whole Foods Market Group, Inc.
► The policy provided:
- It is a violation of Whole Foods Market policy to record
conversations with a tape recorder or other recording device
(including a cell phone or any electronic device) unless prior
approval is received from your store or facility leadership.
The purpose of this policy is to eliminate a chilling effect to
the expression of views that may exist when one person is
being secretly recorded. This concern can inhibit
spontaneous and honest dialogue especially when sensitive
or confidential matters are being discussed. Violation of this
policy will result in corrective action up to and including
discharge.
► The rule applied to employees who were on worktime,
whether in the store, the parking lot, or the areas in
front of the store. The rule did not apply to employees
on non-worktime.

60. Workplace Conduct Policies
Whole Foods Market Group, Inc.
► The policy was challenged, and the ALJ found
that making recordings of conversations in the
workplace was not a protected right and that
the employer had a right to implement rules of
conduct.
► But . . .

61. Workplace Conduct Policies
Whole Foods Market Group, Inc.
► Board - policies would reasonably be
construed as prohibiting Section 7 activity.
► NLRB case law is “replete with examples
where photography or recording, often covert,
was an essential element in vindicating the
underlying Section 7 right.”

62. Workplace Conduct Policies
Takeaways from Caesar’s Entertainment
and Whole Foods Market
► Narrowly tailor policies
► Focus on proprietary information, financial
data, and other confidential information.
► Give examples of what is not prohibited, like
taking pictures of safety issues.

63. Workplace Conduct Policies
Social Media
► Pier Sixty, LLC
- Two days before union election supervisor
criticizes leading union organizer
- While on the break and outside of the facility,
employee post the following on Facebook :
Bob is such a NASTY MOTHER F***** don’t know
how to talk to people!!!!! F*** his mother and his
entire f******* family!!!! What a loser!!!! Vote YES for
the UNION!!!!!!!
Employee discharged

64. Workplace Conduct Policies
Pier Sixty, LLC
► Board determined Perez’s discharge was
unlawful.
► Workplace was fraught with such vulgarity and
profanity
► Protest of the mistreatment and extortion to “Vote
YES for the Union.”’
► Off-duty, offsite use of social media still protected
and did not involve conversation with a supervisor
or manager.
► No interruption of work environment or customer
relationship
► Employer policy did not cite vulgar or offensive
language as prohibited.

65. Workplace Conduct Policies
Takeaways from Pier Sixty, LLC
► Imperative to have written social media policy!
► Must be consistent in application of company policies
► Consider the time and place of social media posts, as
well as any effects on customers and vendors
► Consider the context—are the employees
complaining about terms and conditions of
employment? Are they banning together?
► Avoid overbroad anti-harassment rules
► Be specific about prohibited conduct
► Remember that criticism of management and the
company is protected

66. Workplace Investigations
In 2015, the NLRB Weakened Employers’
Ability to Conduct Effective Workplace
Investigations in a Series of Cases.

67. Workplace Investigations
Background
► Anheuser-Busch, Inc. –witness statements
► Special risk of potential witness intimidation
Piedmont Gardens
► The Board rejected its long-standing precedent and
held that an employer must establish “a legitimate
and substantial confidentiality interest” with respect to
the witness statements.

68. Workplace Investigations
Employer must show:
► The witness needs protection,
► The evidence is in danger of being destroyed,
► The testimony is being fabricated, or
► There is a need to prevent a cover up.
Board then weighs union’s need for the
information.

69. Workplace Investigations
Piedmont Gardens
► Notably, an employer may not meet its burden
by:
- Merely asserting a general interest in the
confidentiality of company investigations;
- Claiming a general interest in avoidance of
harassment or intimidation; or
- Demonstrating that a union could easily obtain the
information from another source.
► There must be an actual factual basis to
support a confidentiality interest.

70. Workplace Investigations
Banner Health System d/b/a Banner
Estrella Medical Center
► Board prohibits requesting employees not to
discuss workplace investigations with co-
workers while the investigation is ongoing
absent a legitimate and substantial business
justification that outweighs the employees’
Section 7 rights.

71. Workplace Investigations
Banner Health System d/b/a Banner
Estrella Medical Center
► What constitutes “a legitimate and substantial
business justification?”
► Piedmont Gardens:
- The witness needs protection,
- The evidence is in danger of being destroyed,
- The testimony is being fabricated, or
- There is a need to prevent a cover up.

72. Workplace Investigations
What about only recommending secrecy?
► The Boeing Co.
- Board held that regardless of whether the policy
contained a mandatory obligation or a
recommendation, it still violated Section 7 of the
NLRA.

73. Workplace Investigations
Takeaways from Piedmont Gardens,
Banner Health, and The Boeing Co.
► Presumption that confidentiality policies in
investigations are unlawful
► Employers bear the burden of showing actual
(rather than theoretical) facts justifying need

74. Workplace Investigations
Takeaways from Piedmont Gardens,
Banner Health, and The Boeing Co.
► Be prepared to show:
- why a witness needs protection;
- why evidence is in danger;
- how or why testimony may be fabricated; or
- why there is a need to prevent a cover up.
► Possible accommodations

75. Severance Agreements
Section 7 Rights
► Confidentiality
► Non-disparagement
SEC Whistleblower program states:
► “No 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 communications.”

76. Severance Agreements
Pratt (Corrugated Logistics), LLC
► Confidentiality of Agreement. Employee will keep the
fact and terms of this Agreement completely confidential
and not disclose its contents to anyone except, on a
confidential basis, to his/her spouse, tax accountant,
financial advisor, or attorney. A violation of this
confidentiality provision by any such person is considered
a violation by Employee. This section does not prohibit
disclosures to the extent legally required pursuant to a
court order or subpoena. Employee, however, promises to
notify Pratt in advance of such a disclosure obligation or
request within two days after Employee learns of it and
permit Pratt to take all steps it deems appropriate to
prevent or limit the required disclosure.

77. Severance Agreements
Pratt (Corrugated Logistics), LLC
► Nondisparagement. Employee agrees that
he/she will not make any oral or written statement
or engage in conduct that either directly or
indirectly disparages, criticizes, defames, or
otherwise casts a negative characterization upon
Pratt and/or any Pratt Entity, nor will he/she
encourage or assist anyone else to do so.
Nothing in this section is intended to prevent
Employee from testifying truthfully in any legal
proceeding or complying with any lawful
subpoena or court order.

78. Severance Agreements
Pratt (Corrugated Logistics), LLC
► Confidentiality and Nondisparagement
provisions were held to be unlawfully
overbroad and restricted the employees’
rights to concerted protected activity.

79. Severance Agreements
Takeaways
► Evaluate the Board ruling
► Draft as narrowly as possible and clearly
define what is protected
► Consider specific carve-outs
► Cannot “buy silence”

80. Dustin Carlton – dcarlton@bassberry.com
Angelica Fortney – afortney@bassberry.com
Tim Garrett – tgarrett@bassberry.com
Bob Horton – bhorton@bassberry.com
Michael Moschel - mmoschel@bassberry.com
Mary Leigh Pirtle – mpirtle@bassberry.com
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