Monday morning musings for workplace watchers.
Labor Board IT Funding|Bipartisan Limits on NDAs
Robert Iafolla and Diego Areas Munhoz: The National Labor Relations Board would get an extra $5 million to modernize its outdated case management system and information technology under a bipartisan spending bill recently approved by the Senate Appropriations Committee.
The NLRB uses an electronic case management system called NxGen. It serves as an agency-wide interactive database, storing records necessary for unfair labor practice and union representation cases, including petitions, charging papers, affidavits, and other crucial documents.
While NxGen is essential, it’s also very buggy, according to a longtime NLRB official who recently left the agency.
“The system quite often crashes and nobody can get in,” said Rebecca Dormon, a former assistant regional director in the New Orleans office. “That pretty much paralyzes everything.”
Whether it’s an agency-wide crash, lack of access due to emergency maintenance, or smaller scale IT misfires, there’s at least a group of staffers struggling with NxGen every day, she said.
The agency’s e-filing portal for attorneys and other members of the public to submit charges, petitions, and other case filings also suffers from crashes and glitches, said Dormon, now a labor relations consultant at IRI Consultants.
NLRB spokesperson Kayla Blado declined to comment. Nevertheless, souping up the agency’s IT has apparently been on General Counsel Jennifer Abruzzo’s mind for a while.
She raised the issue during a panel at a 2019 American Bar Association conference, asking then-GC Peter Robb about millions of dollars in appropriated funds that the agency failed to spend.
Abruzzo, who was in private practice at the time, suggested that the money could be spent on “technological advances that could help all of us,” such as an electronic docketing system that’s similar to the one used by federal courts, rather than being returned to the Treasury Department.
The future of the Senate proposal for extra funding to address the NLRB’s IT problems remains unclear. Congress returns from its month-long recess after Labor Day, just weeks before government runs out of money on Sept. 30. Lawmakers are expected to pass a stopgap measure to keep the lights on through the November election.
Depending on the results, they could negotiate a lame-duck agreement on government funding, or pass yet another temporary measure and leave the appropriations bills for the next Congress.
Regardless of when lawmakers reach a budget deal, the final proposal will have to be agreed to by members of both parties, and the Senate bipartisan proposal might give the NLRB a leg up in receiving more funding to fix its IT.
Chris Marr: Limits on employers’ use of nondisclosure and nondisparagement agreements related to workplace sexual misconduct continue their expansion through the states in bipartisan fashion, with Louisiana and Utah as the latest to adopt such restrictions.
Both states now deem nondisclosure contracts that block employees from talking about sexual harassment or sexual assault claims to be void and unenforceable if they’re signed prior to any dispute, such as new-hire paperwork. The two join at least 16 other states that have passed similar laws, after Louisiana’s law took effect Aug. 1 and Utah’s earlier this year.
The state laws aim to prevent the use of NDAs to silence sexual harassment victims, having been inspired by the #MeToo movement and allegations against Harvey Weinstein starting in 2017. The laws advanced first in blue states, such as California and New Jersey, but have since spread to red states, including Louisiana and Utah where Republicans hold legislative majorities. The Louisiana law took effect without the signature of Gov. Jeff Landry (R) after passing on unanimous votes in the state House and Senate.
Congress passed a similar measure, the Speak Out Act, in 2022 with bipartisan support.
The details of the measures vary from state to state, and several states go further than Congress did in the kinds of NDAs they prohibit.
Louisiana’s new law applies to contracts that would prevent employees from talking about hostile work environment claims, in addition to the sexual harassment claims that federal law covers.
Like the federal law, Louisiana and Utah both prohibit contracts signed before a dispute arises, but allow employers to include nondisclosure language in a post-dispute contract such as a settlement agreement. A few states including California, Illinois, New Jersey, and New York also bar nondisclosure provisions in settlements related to certain kinds of workplace discrimination and harassment.
New Jersey’s Supreme Court also clarified and arguably expanded the scope of that state’s limits on nondisclosure contracts through a court decision in May. The court found that even nondisparagement clauses in a settlement agreement can violate the state’s 2019 law if those clauses prevent a worker from speaking publicly about the details of a harassment, discrimination, or retaliation claim.
Several states have applied the restrictions on NDAs to all forms of discrimination and harassment claims, not just sexual harassment. Washington state went even further in its passage of a 2022 law that banned the use of NDAs related to wage and hour claims and also any conduct “that is recognized as against a clear mandate of public policy.”
As another offshoot of the #MeToo movement, members of Congress from both parties have pushed to rein in the use of mandatory arbitration contracts that block many kinds of worker-rights claims from going to court. Congress banned mandatory arbitration related to workplace sexual harassment and assault in February 2022, and lawmakers this year introduced a proposal to extend the restriction to claims of age discrimination.
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