Uncategorized Archives - The National Law Forum

Prayers for Religious Holiday Time Off May Need to be Accommodated by Employers

Knowing several religious holidays are coming up soon, employers can take steps to avoid triggering religious discrimination and reasonable accommodation lawsuits. Consistently applying paid time off rules can help to prevent discrimination, retaliation, and religious reasonable accommodation claims.

Quick Hits

Private and public employers with fifteen or more workers must accommodate reasonable requests from workers to observe religious holidays (pursuant to federal law; however, state law coverage varies and might only require one or more workers).
Employers may avoid confusion by clearly stating leave policies and company holidays in the employee handbook.
Employers can use online systems or software to detect patterns in approving or denying requests for leave on religious holidays.

With many religious holidays taking place in the next two months, employers are likely to see many requests for time off for religious celebrations.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers for practicing their religion unless the worker’s religious practice cannot reasonably be accommodated without an undue hardship to the business. If a manager approves holiday leave requests from Christian employees, but rejects holiday leave requests from Muslim or Jewish employees, that could raise the risk of religious discrimination lawsuits. Additionally, some states, including California, also prohibit religious discrimination and require reasonable accommodation.

In June 2023, in Groff v. DeJoy, the Supreme Court of the United States ruled that employers cannot legally deny a valid religious accommodation request, unless they can show a substantial burden from a proposed religious accommodation. In Groff, an evangelical Christian postal worker sued the U.S. Postal Service for failing to accommodate his request to not work on Sundays for religious reasons. The Supreme Court held in favor of the postal worker and remanded the case to lower courts.

This decision raised the bar for employers to invoke an undue hardship defense. A de minimiscost is no longer enough to demonstrate an undue burden. If an employee holds a sincere religious belief or practice that conflicts with a workplace policy or staffing schedule, then the employer must engage in an interactive process to see whether an accommodation can be made without substantially interfering with its overall business operations.

Some workplaces, including in the healthcare, hospitality, and transportation industries, require staffing 24/7 every day. In that situation, it may be possible to coordinate schedules so that leave requests can be honored for religious holidays. For example, non-Jewish employees may agree to work during Jewish holidays, and non-Muslim workers may agree to work during Muslim holidays. And, then, those employees might cover gaps in staffing caused by time off for Christian holidays. Compliance with the religious accommodation laws contemplates this type of interactive process and teamwork to find an appropriate solution.

If this type of shift-swapping is not possible or practical, it may be helpful for an employer to document why that is the case.

Next Steps

Employers may wish to review their religious accommodation request procedures, leave policies, scheduling process, and related practices to ensure that managers do not engage in religious discrimination when they approve or deny leave requests. In addition, employers may wish to train managers to apply all of the time off rules consistently.

These holidays are upcoming:

The Jewish holidays Rosh Hashanah and Yom Kippur fall on October 3, 2024, and October 12, 2024, respectively. Hanukkah will be celebrated December 25 through January 2, 2025.
The Hindu holiday Diwali falls on November 4, 2024.
The Buddhist holiday Bodhi Day falls on December 8, 2024.
The Christian holiday Christmas Day falls on December 25, 2024.

Former Acadia Employees Received Reward for Blowing the Whistle on Healthcare Fraud

The United States Department of Justice settled a False Claims Act qui tam whistleblower lawsuit against inpatient behavioral health facilities operator Acadia Healthcare Company, Inc. Under the terms of the settlement, the operator paid almost $20 million to the United States and the States of Florida, Georgia, Michigan, and Nevada. The relators, or whistleblowers, who filed suit in 2017, received a reward of 19% of the government’s recovery of misspent Medicare, TRICARE, and Medicaid funds. According to one of the Relators, Jamie Clark Thompson, a former Director of Nursing at Acadia’s Lakeview Behavioral Health facility, “I am passionate about advocating for improved and quality services for individuals living with mental illness. Unfortunately, our communities have seen the devastating impact when this vulnerable population receives inadequate care. I firmly believe that by continuously working to improve our mental health system, we can support recovery and well-being, benefiting our entire community. I hope that my actions have made a difference, and I know that properly allocating funds is crucial to supporting behavioral health services and those working tirelessly to improve them.”

Medicare, TRICARE, and Medicaid Fraud Allegations

According to the settlement agreement, the whistleblowers alleged Acadia and certain of its facilities submitted false claims to Medicare, TRICARE, and Medicaid. Specifically, the facilities allegedly admitted ineligible patients, provided services for longer than was medically necessary or did not provide treatment at all (but still billed the healthcare programs for it), did not provide sufficient care for those who needed acute care or individualized care plans, and hired the wrong people or failed to train their staff to “prevent assaults, elopements, suicides, and other harm resulting from staffing failures.”

Behavioral Health Facility Fraud

Behavioral healthcare facilities provide inpatient, outpatient, and residential care for adolescents, adults, and seniors for mental health conditions. As taxpayer-funded healthcare programs, Medicare, Medicaid, and TRICARE cover behavioral healthcare. Treating mentally ill Medicare, Medicaid, or TRICARE beneficiaries as cash cows, and either under-treating, over-treating, or not treating them at all both robs the individuals of the chance to recover, wastes taxpayer resources, and may even jeopardize their safety and well-being.

The Importance of Medicare, Medicaid, and TRICARE Whistleblowers

Whistleblowers who report behavioral health facility fraud are not only protecting vulnerable patients but also making sure federally funded healthcare dollars are being spent to properly treat adolescent, adult and older patients with significant behavioral health conditions. Three employees at different Acadia facilities came forward, faced retaliation for speaking up, and are now being rewarded for helping to fight fraud and abuse and for their courage.

Read the Department of Justice’s Press Release

by: Tycko & Zavareei Whistleblower Practice Group of Tycko & Zavareei LLP

Unlocking the Benefits of U.S. Citizenship

Each year, on Sept. 17, Americans celebrate Constitution and Citizenship Day. While there are many paths to citizenship – born in the U.S. or a U.S. territory, born abroad to U.S. citizens or naturalized – we all enjoy the same advantages, and equally important responsibilities. As we reflect on these responsibilities of citizenship and what it means to be a U.S. citizen, we also explore the numerous benefits and incredible opportunities that U.S. citizenship has to offer.

Benefits of U.S. citizenship

Visa-free travel

There are so many advantages when it comes to travel and the ease of travel when you’re a U.S. citizen. For example, you don’t need to prove potentially every time that you intend to make the United States your home. Permanent residents are required to show roots and ties to the U.S., and that they want to be a permanent resident and make the United States their permanent home. In addition, for lawful permanent residents, additional travel documents may be needed if you have long trips outside the U.S. By being a U.S. citizen, those requirements are no longer necessary.

Traveling with a U.S. passport allows for assistance from the government when abroad, as well as possession of one of the most travel-friendly statuses available today. U.S. passport holders can travel to certain countries without a visa. Being a U.S. citizen and having a U.S. passport opens many doors and removes a lot of visa requirements and other challenges when traveling to other countries.

The right to vote

The Constitution and laws of the United States grant numerous rights exclusively to citizens, with one of the most fundamental being the right to participate in federal elections. This right is particularly significant when compared to many countries where citizens lack a voice in their government and cannot effectively communicate their values and what’s important to them by voting. In contrast, U.S. citizens have the power to influence the nation’s future by voting for representatives and leaders who align with their values and priorities.

Keep the family together

U.S. citizenship provides a strong safeguard against family separation with the privilege of helping immediate relatives, such as a spouse, parents and unmarried children, to obtain permanent residency.

Federal employment opportunities

Most jobs within government agencies require U.S. citizenship, so becoming eligible for federal job opportunities can be a significant public service professional opportunity, including running for office to become an elected official.

Access to federal benefits

U.S. citizens are eligible for certain federal scholarships and grants and access to federal public benefits for basic needs, including Social Security benefits, Medicare and Medicaid. Citizens are also eligible for government-sponsored legal aid, which provides free or low-cost legal assistance to ensure all citizens have access to justice regardless of their financial situation.

Understanding Post-Bankruptcy Liquidation Trusts

A main goal in bankruptcy is to get in and out as quickly as possible to minimize costs. It is often the case that even though a substantial portion of a debtor’s assets have been liquidated in bankruptcy, some valuable assets will remain that can provide additional sources of recovery to creditors. These assets may include smaller pieces of real estate, accounts receivable, joint venture ownership interests, and claims and causes of action, among others.

In a chapter 11 case, the debtor exits bankruptcy by confirming a plan and having the plan go effective. When a debtor has assets remaining but is otherwise ready to exit the bankruptcy case – for example, because it has closed a sale of a substantial portion of its assets – the plan typically provides for the formation of a liquidation trust on the plan effective date. All remaining assets are transferred to the trust for liquidation, and any proceeds are distributed to creditors, i.e., the trust beneficiaries, in accordance with the plan.

The liquidation trust is established and governed by the plan and a liquidation trust agreement. A liquidation trustee is appointed to administer the trust and is granted broad powers to, among other things, liquidate assets, investigate, prosecute, and settle causes of action, object to, resolve, and pay claims, and make distributions to trust beneficiaries.

Trust beneficiaries typically appoint members of a trust advisory or oversight committee who have consultation and approval rights over certain actions proposed to be taken by the liquidation trustee. For example, the trustee may need approval from the oversight committee to resolve claims or causes of action above a certain amount, or to liquidate certain high-value assets.

Who serves as liquidation trustee and how many representatives each trust beneficiary appoints to the oversight committee are typically negotiated in connection with the plan process. The liquidation trustee may have been a professional involved in the bankruptcy, or it may be an outsider with experience serving in such a role. The oversight committee members may be creditors themselves or may be appointed as representatives of the creditors. Trust assets are typically used to compensate the liquidation trustee for its services and reimburse it for its costs and expenses, including for its retained professionals, though oftentimes initial seed funding is also required. Trust oversight committee members may receive modest compensation, which is typically capped, but which may offer an incentive for a creditor or a creditor-appointee to serve.

The role of the trust oversight committee is an important one, as the assets transferred to the trust may provide additional valuable sources of recovery to creditors. Trust beneficiaries are often creditors from different classes under the plan, and therefore may have differing interests and be entitled to different treatment. For example, a secured creditor with a lien on a parcel of real estate may be the sole beneficiary from the sale of such real estate, and therefore has an interest in overseeing how the property is marketed and sold. Even when trust beneficiaries share a right to recover from the same assets, such as from the prosecution of causes of action, they may have differing views or interests as to the potential value of the claims, whether it makes sense to settle them, and overall strategy.

When all assets are liquidated, claims resolved, distributions made, and the estates are otherwise wound down, the trust will be dissolved. Often, this does not occur until years later.

Arguing Internet Availability to Establish Copyright Infringement Is Bananas

In an unpublished opinion, the US Court of Appeals for the Eleventh Circuit affirmed a district court’s decision finding that a pro se Californian artist failed to establish that an Italian artist had reasonable opportunity to access the copyrighted work simply because it was available to view on the internet. Morford v. Cattelan, Case No. 23-12263 (11th Cir. Aug. 16, 2024) (Jordan, Pryor, Branch, JJ.) (per curiam).A plaintiff alleging copyright infringement may show factual copying by either direct or indirect evidence showing “that the defendant had access to the copyrighted work and that there are probative similarities between the allegedly infringing work and the copyrighted work.” To do so, however, the copyright owner must establish a nexus between the work and the defendant’s alleged infringement. Mere access to a work disseminated in places or settings where the defendant may have come across it is not sufficient.

Joe Morford’s Banana and Orange and Maurizio Cattelan’s Comedian both “involve the application of duct tape to a banana against a flat surface” (see images below from the court decision’s appendix). Cattelan’s Comedian went viral and sold for more than $100,000 at Miami’s Art Basel. Morford claimed that Comedian was a copy. The district court found that Morford failed to show that Cattelan had reasonable opportunity to access Banana and Orange and thus could not establish a copyright claim. Morford appealed.

Orange and Banana, Comedian

On appeal, Morford argued that because he could show striking similarity between Banana and Orange and Comedian, he was not required to proffer evidence of access to show copyright infringement. In the alternative, he argued that he could show substantial similarity and that Cattelan had reasonable opportunity to access Banana and Orange as it was widely disseminated and readily discoverable online.

The Eleventh Circuit explained that in circuits adopting a widespread dissemination standard, that standard requires showing that the work enjoyed “considerable success or publicity.” Morford showed that Banana and Orange was available on his public Facebook page for almost 10 years and featured on his YouTube channel and in a blog post, with views in more than 25 countries. But Banana and Orange’s availability on the internet, without more, was “too speculative to find a nexus” between Cattelan and Morford to satisfy the factual copying prong of a copyright infringement claim, according to the Court.

The Eleventh Circuit also found that Morford failed to meet the high burden of demonstrating that the original work and accused infringement were so strikingly similar as to establish copying. Such similarity exists if the similarity in appearance between the two works “is so great that [it] precludes the possibility of coincidence, independent creation or common source,” but identical expression does not necessarily constitute infringement. In this analysis, a court addresses the “uniqueness or complexity of the protected work as it bears on the likelihood of copying.” Morford argued that he established striking similarity based on the “same two incongruous items being chosen, grouped, and presented in the same manner within both works.” Although the two incongruous items in both works were similar (i.e., a banana and duct tape), the Court decided that there were sufficient differences between Banana and Orange and Comedian to preclude a finding of striking similarity. Banana and Orange had both a banana and an orange held by duct tape, while Comedian only contained a banana.

Deep in the Heart of Texas: Court Blocks FTC Non-Compete Rule

On August 20, 2024, the United States District Court for the Northern District of Texas invalidated the FTC’s rule banning most non-compete agreements. Ryan LLC et al v. Federal Trade Commission, WL 3297524 (08/20/2024). In its highly anticipated opinion, the Court determined the FTC exceeded its authority in promulgating the rule and that the rule is arbitrary and capricious. This decision was not limited to the parties before the Court and blocks the rule from becoming effective nationwide on September 4, 2024. As a result, existing non-compete agreements may still be valid and enforceable when permitted under applicable law.

Ryan, LLC (“Ryan”) filed its lawsuit on April 23, 2024, arguing the FTC did not have rulemaking authority under the Federal Trade Commission Act, that the rule is the product of an unconstitutional exercise of power, and that the FTC’s acts and findings were arbitrary and capricious. Several plaintiffs, including the U.S. Chamber of Commerce, intervened in the lawsuit to challenge the rule.

In July, the Court enjoined the FTC from implementing or enforcing the rule. That ruling, however, was limited in scope and only applied to Ryan and the intervening plaintiffs. Shortly thereafter, all parties filed motions for summary judgment. Plaintiffs asked the Court to invalidate the FTC’s rule, and the FTC sought dismissal under the theory it has express rulemaking authority under the FTC Act.

The Court first examined the FTC’s statutory rulemaking authority and determined the rulemaking provisions under the FTC Act do not expressly grant the FTC authority to promulgate substantive rules. The Court reasoned that although the Act provides some rulemaking authority, that authority is limited to “housekeeping” types of rules. The Court concluded “the text and the structure of the FTC Act reveal the FTC lacks substantive rulemaking authority with respect to unfair methods of competition…” As a result, the Court held the FTC exceeded its statutory authority in promulgating the rule.

Next, the Court considered whether the rule and the promulgation procedure was arbitrary and capricious. The Court was unconvinced by the studies and other evidence relied on by the FTC in promulgating the rule and found that the FTC failed to demonstrate a rational basis for imposing the rule. The Court also noted that the FTC was required to consider less disruptive alternatives to its near complete ban on non-compete agreements. Although the FTC argued it had “compelling justifications” to ignore potential exceptions and alternatives, the Court concluded the rule was unreasonable and the FTC failed to adequately explain alternatives to the proposed rule. Ultimately, the Court opined the rule was based on flawed evidence, that it failed to consider the positive benefits of non-compete clauses and improperly disregarded substantial evidence supporting non-compete clauses.

As a result of this ruling, the FTC’s rule will not become effective on September 4, 2024, short of any additional orders or rulings from a higher court reversing or staying the decision. For the time being, the existing laws governing non-compete agreements will remain in place. In Michigan, employers may enforce non-compete agreements that are reasonable in duration, geographical area and type of employment or line of business. In Illinois, they are regulated by the Illinois Freedom to Work Act, which imposes a stricter regulatory scheme. This should come as a relief for employers who can generally avoid—at least for now—analyzing complex issues regarding the impact that the FTC’s rule would have had on executive compensation arrangements tied to compliance with non-compete agreements, especially in the tax-exempt organization context.

by: D. Kyle Bierlein, Brian T. Gallagher, Barry P. Kaltenbach, Brian Schwartz of Miller Canfield

For more news on the Federal Court Ruling Against the FTC’s Non-compete Rule, visit the NLR Labor & Employment section.

Best Practices for Associate Compensation

Welcome back to our in-depth exploration of compensation within law firms. In our previous post , we emphasized the significance of establishing a robust compensation system to attract and retain top talent and keep them motivated. In this post, we’ll discuss the crucial components needed to make an effective compensation plan for associates within the firm.

Compensating associates is a multifaceted task that law firms tackle annually to attract and maintain a talented workforce. Unfortunately, numerous small to mid-sized firms lack a robust structure that anticipates market trends and internal changes, and they also often need a simplified process for determining raises and bonuses.

Key Considerations for Developing Compensation Plans for Associates:

Associate compensation programs should incorporate the following elements:

Market Competitiveness: How does the firm’s associate compensation compare with market standards and rival firms?
Progression: Does the firm have a consistent and progressive structure for raises and bonuses that aligns with its associates’ experience and performance progress?
Incentive Alignment: Does the firm incentivize behaviors aligned with its vision and priorities?
Transparency: Does the firm clearly communicate with associates about their earning potential over time and at specific experience and performance levels?
Feedback: Are associates given enough performance feedback to understand the relationship between their salaries, raises, bonuses, and performance?

Capacity and Performance Expectations

Establishing a compensation structure begins with assessing attorneys’ current and future economic and qualitative potential. Firms should project the expected performance and contributions over the first eight to ten years of an attorney’s career in the firm.

Production Capacity – How much work will the attorney handle, and what is the value of that work? Production metrics may include billable hours or caseload, expected billings and collections, and, by extension, rates and realization.
Qualitative Performance – Which skills does the attorney need to succeed in the position/ to create value? Consider legal skills, case management, business development contributions, compliance/ interpersonal skills, recruiting support, etc.
Profitability – How much economic value should the attorney create beyond their cost? (Expected profit or profit margin)

The qualitative increases in value and objective contributions to revenue and profit indicated in the table below provide an example of the most common factors. Contributions should be considered in the context of increasing long-term value and offering short-term profits.

INCREASES IN VALUE	CONTRIBUTIONS TO PROFIT
Quality of professional work	Personal Productivity
Work ethic (consistency of quality and quantity)	Profitability of others (supervision and training)
Client relations and service	Originations
Personal development and accountability	Recruiting profitable lawyers
Business development contributions (networking, publishing, speaking, etc.)	Business hygiene (timekeeping, billing, collections)
Cultural support
Firm building (recruiting, training, process development, etc.)
Adding to the reputation of the firm

The table below indicates an example of expectations by experience level.

PERFORMANCE EXPECTATIONS
KEY	Consistent
	Approaching consistent
	Optional
	Not expected at the experience level

ECONOMIC FACTORS
EXPERIENCE (YR)	Productivity	Realization	Training Supervision	Profit Threshold	Billing Management	Origination
1
2
3
4
5
6
7
8
9
10

A firm may combine all economic scores and consider the aggregate result as a qualitative factor. As long as the selected system is consistently applied, room exists for customization.

QUALITATIVE FACTORS – WEALTH CREATION
EXPERIENCE (YR)	Work Ethic	Work Quality	Bar, Professional Civic	Content Publishing Speaking	Business Development Competence	Recruiting Contributions	Client Relations and Service	Pro Bono
1
2
3
4
5
6
7
8
9
10

Designing a rewarding compensation strategy is essential for maximizing the value from your law firm’s legal team. This involves careful deliberation over economic and qualitative criteria. Balancing these factors and customizing your approach enables your firm to attract and retain top lawyers while nurturing a consistent organizational culture.

Start by clearly defining the skill set that brings long-term value to your firm and reward attorneys accordingly to ensure retention of the most compatible talent.
Employ strategies to recognize and financially reward lawyers who consistently excel in high-value areas such as work ethic, quality, and client service, thus motivating them to sustain their high performance.
For firms with top lawyers nearing retirement, devise a compensation plan that encourages emerging talents to take on leadership roles, guaranteeing a smooth transition and enduring success.
Recognize and remunerate specialized expertise appropriately, for instance, by providing incentives to skilled litigators in a trial-focused litigation firm.
Acknowledge and reward qualitative achievements, like the publication of influential content, encouraging lawyers to align with the firm’s broader objectives.

It is also necessary to acknowledge the value of specialized expertise and reward it accordingly. For example, if trial experience is highly valued in your litigation firm, compensating successful litigators who excel in this area is an excellent strategy. Finally, recognizing qualitative accomplishments, such as publishing high-quality content, can motivate your lawyers to contribute to the firm’s mission.

A compensation strategy that considers both qualitative and economic performance is vital for motivating and retaining the best-fit individuals for your law firm. By extending recognition beyond mere base salary increments to contributions that exceed expectations, you uphold the fairness and prosperity of your organization.

Join us as we continue to explore compensation best practices for law firms. Stay tuned for upcoming articles that will provide in-depth insights and actionable guidance on creating compensation systems that not only draw in and retain top legal talent but also bolster the firm’s long-lasting prosperity and cultural ethos.

DOJ Plan to Offer Whistleblower Awards “A Good First Step”

The Department of Justice (DOJ) will launch a whistleblower rewards program later this year, Deputy Attorney General Lisa Monaco, announced today. Monaco stated that other U.S. whistleblower award programs, such as the SEC, CFTC, IRS and AML programs, “have proven indispensable” and that the DOJ plans to offer awards for tips not covered under these programs.

“This is a good first step, but the Justice Department has miles to go in creating a whistleblower program competitive with the programs managed by the U.S. Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC),” said Stephen M. Kohn.

“We hope that the DOJ will follow the lead of the SEC and CFTC and establish a central Whistleblower Office that can accept anonymous and confidential complaints. Such a program has been required under the anti-money laundering whistleblower law for over three years, but Justice has simply failed to follow the law,” added Kohn, who also serves as Chairman of the Board of the National Whistleblower Center.

According to Monaco, “under current law, the Attorney General is authorized to pay awards for information or assistance leading to civil or criminal forfeitures” but this authority has never been used “as part of a targeted program.” The DOJ is “launching a 90-day sprint to develop and implement a pilot program, with a formal start date later this year,” she stated.

While the specifics of the program have yet to be announced, Monaco did state that the DOJ will only offer awards to individuals who were not involved in the criminal activity itself.

“The Justice Department’s decision to exclude persons who may have had some involvement in the criminal activity is a step backwards and demonstrates a fundamental misunderstanding as to why the Dodd-Frank and False Claims Acts work so well,” continued Kohn. “When the False Claims Act was signed into law by President Abraham Lincoln in 1863 it was widely understood that the award laws worked best when they induced persons who were part of the conspiracy to turn in their former associates in crime. Justice needs to understand that by failing to follow the basic tenants of the most successful whistleblower laws ever enacted, their program is starting off on the wrong foot.”

Geoff Schweller also contributed to this article.

Employment Tip of the Month – February 2024

Q: Can my company treat employees adversely because of their personal political beliefs? If they wear a shirt of their favorite candidate? Or proselytize about their candidate?

A: The short answer: There exists no “First Amendment Right to freedom of expression” in a private workplace, and that extends to political expression. See Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921 (2019) (Only “State actors subject to First Amendment constraints.”)

So, yes, legally a private employer can refuse to hire Democrats or Republicans, and can fire an employee for wearing a shirt of their candidate or vocalizing a particular political position.

On the other hand, other laws can apply, such as the right to “concerted action” under the National Labor Relations Act. Overt adverse action also could be ripe for allegations of selective enforcement, such as “you only selectively enforce this rule against me because I am ___________”, where Title VII covers race, sex, religion, color and national origin; ADA covers disability; ADEA age, etc. Some political positions could easily bleed over into religious beliefs.

Even if legally permissible for a private employer to discriminate against holders of one particular political belief, from a practical management perspective, it cannot be recommended, and would be loaded with risk. Also, it could simply make for bad optics and make it harder to attract and retain the best talent.

Finally, this answer changes entirely for public employers and government employers, where employees do possess First Amendment rights, so long as, in general, they are speaking (1) as a private citizen, (2) about a matter of public concern, and (3) their speech does not interfere with the job. There are exceptions for high-ranking individuals, political appointees or someone trying to release classified information, though in many instances they would still be protected from retaliation.

OSHA and NLRB Set Forth MOU to Strengthen Protections for the Health and Safety of Workers: A 2024 Outlook

On October 31, 2023, the National Labor Relations Board (NLRB) and Occupational Safety and Health Administration (OSHA) entered into a Memorandum of Understanding (MOU) to strengthen their interagency partnership. The purpose of this partnership is to establish a process for information sharing, referrals, training, and outreach between the agencies. Additionally, the agencies wish to address certain anti-retaliation and whistleblowing issues through this collaboration.

Since 1975, the NLRB and OSHA have engaged in cooperative efforts during investigations. According to NLRB General Counsel Jennifer Abruzzo and OSHA Assistant Secretary Doug Parker, the MOU seeks to strengthen this interoffice coordination in an effort to provide greater protection for workers to speak out on unsafe working conditions without fear of punishment or termination.

Exchange of Information

According to the MOU, the NLRB and OSHA “may share, either upon request or upon the respective agency’s own initiative, any information or data that supports each agency’s enforcement mandates, whether obtained during an investigation or through any other sources.” This information may include complaint referrals and information in complaint or investigative files. The MOU notes that this information will be shared only if it is relevant or necessary to the recipient agency’s enforcement responsibilities and ensures that the sharing of information is compatible with the purposes of the agency that is collecting the records.

For example, if OSHA learns during an investigation that there are potential victims of unfair labor practices who have not filed a complaint with the NLRB, OSHA will explain the employees’ rights and provide them with the NLRB’s phone number and web address. Additionally, if an employee files with OSHA an untimely complaint of retaliation, OSHA may then advise the employee to file a complaint with the NLRB, because the NLRB has a six-month time limit for filing such complaints whereas OSHA’s time limit is only 30 days. As a result, employers may be facing both agencies during an investigation.

Coordinated Investigations and Enforcement

The NLRB and OSHA will determine whether to conduct coordinated investigations and inspections in order to facilitate appropriate enforcement actions. If coordinated investigations occur and there are overlapping statutory violations, each agency may take relevant enforcement actions. In practice, employers should assume that if either agency is conducting an investigation into alleged retaliation, that agency will consider involving the other.

Takeaways for Employers

Heading into 2024, employers can expect to see more interagency coordination between the NLRB and OSHA during investigations. While the two agencies remain separate, there is a clear entanglement of enforcement action as the NLRB seeks to increase federal agency collaboration. As such, employers may presume that information collected by one agency will be provided to the other. As the agencies seek to increase worker protection across the board, employers will want to ensure that their management personnel are trained and up-to-date on the anti-retaliation and whistleblowing provisions of the Occupational Safety and Health Act and the National Labor Relations Act.

Category: Uncategorized

Prayers for Religious Holiday Time Off May Need to be Accommodated by Employers

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Former Acadia Employees Received Reward for Blowing the Whistle on Healthcare Fraud