Managing Your Workforce During Market Volatility | McDermott

Key Takeaways | Managing Your Workforce During Market Volatility: Separations, Arbitration, Leaves and Accommodations


Employers are facing new and evolving pressures as they navigate economic uncertainty. This leads to questions and concerns about managing their workforces with minimal disruption and in a way that mitigates risk from increased litigation. McDermott’s Employment group is hosting a webinar series that will explore best practices for workforce management in volatile markets.

During the first webinar of the series, Lindsay Ditlow and Laurie Baddon covered nationwide developments in separation and release agreements, including the impact to confidentiality and non-disparagement provisions after the National Labor Relations Board’s (NLRB) McLaren Macomb ruling. They also discussed Family and Medical Leave Act (FMLA) leaves of absence and Americans with Disabilities Act (ADA) accommodations, as well as recent developments around arbitration.

Top takeaways included:

  1. Confidentiality and Non-Disparagement Clauses: After the NLRB’s decision in McLaren Macomb and the NLRB’s General Counsel memorandum, it is important that employers carefully review confidentiality and non-disparagement clauses in not only severance and separation agreements but in any agreement with employees, including offer letters. While these clauses are not per se illegal, they must be narrowly tailored to pass muster under the NLRB’s current guidance.
  2. FMLA & ADA Requirements and Best Practices: When handling FMLA & ADA requests, don’t wait for magic words or make assumptions. Promptly engage the employee in an interactive process to determine potential reasonable accommodations and document all communications with the employee and the FMLA administrator. Good recordkeeping is key to avoiding later confusion.
  3. Arbitration Agreements: Federal courts continue to boost the enforceability of arbitration agreements and class action waivers, but whether to utilize arbitration agreements and how to craft the agreement is a nuanced decision for each employer that requires weighing numerous pros and cons.

Up Next:

Stay tuned for additional webinars in the series that will take a deep dive into the issues impacting employers during periods of market volatility, including RIFs, employee mobility and noncompete agreements, employee retention, M&A transaction strategies and proactive approaches to defending against the rise in employment litigation.

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