Severance agreements, court decisions, and history highlight 2023 SHRM employment law conference

Posted March 3, 2023

This year’s Society for Human Resource Management (SHRM) Employment Law and Compliance Conference, held February 26 to 28, brought insights on religious accommodation, severance agreements, the Form I-9, and Abraham Lincoln. About 600 human resources professionals attended this year’s event, with around 350 on-site in Washington, D.C., and 250 participating in the event virtually.

The conference included presentations from representatives of federal agencies, including the Equal Employment Opportunity Commission (EEOC) and the United States Citizenship and Immigration Service (USCIS), as well as attorneys, legal experts, and presidential historian Doris Kearns Goodwin.

Among the highlights:

Supreme Court decision to watch for

Several speakers pointed to the importance of a ruling likely to come from the U.S. Supreme Court in June. The court is likely to reach a decision in a case involving a mail carrier who says the United States Postal Service did not do enough to accommodate his request to have Sundays off.

The decision may impact how much hardship an employer has to prove before denying a religious accommodation. In addition, it may address how the accommodation’s impact on other employees figures into the calculation.

Currently only a small (or de minimums) amount of hardship needs to be shown for a religious accommodation to be denied by an employer.

“There has been a lot of debate over whether that standard should be heightened,” Jocelyn Samuels, vice chair of the EEOC, noted during a presentation. She added that, from her point of view, the current standard has done a good job of balancing religious liberty and other civil rights in the workplace.

Attorney Joseph Beachboard also highlighted this pending ruling in his presentation on the Supreme Court, and predicts that the current de minimus standard will be overturned. “This is going to create some significant new challenges and some new legal risks,” he said.

All severance agreements aren’t banned

Lauren McFerran, chair of the National Labor Relations Board (NLRB) provided some insights into a recent board decision on severance agreements in a question-and-answer session after a presentation on the board’s decision-making process. Employees may sign severance agreements after being terminated, agreeing to not speak against a company, sue a company, or reveal company secrets.

On February 21, the NLRB ruled that overly broad severance agreements are not allowed if they require employees to waive their rights under the National Labor Relations Act (NLRA), such as the right to discuss terms and conditions of employment.

McFerran emphasized that this did not mean that all severance agreements are banned. “The board has not outlawed severance agreements,” she said. “This severance agreement had an extremely broad non disparagement clause. There were no restrictions on the scope of the confidentiality clause.”

The board has always said that employees cannot sign away their rights, she noted. “We thought these agreements were excessively board. We did not say all severance agreements are not allowed.”

We hear you: Remote review of I-9 documents

Doug Rand, senior advisor to the director of the United States Citizenship and Immigration Services (USCIS), likely provided some welcome news to HR professionals when he responded to an attendee’s question about allowing employers to review required Form I-9 documents remotely.

“We are definitely looking carefully at that,” Rand said. “We are well aware of what a difference that has made.”

During the COVID-19 pandemic emergency, employers have been able to review I-9 documents via video, fax, or email, rather than inspecting them in-person, in some cases when employees work remotely. The agency has proposed a rule that would set parameters for making this option permanent, but has not yet finalized it.

Lessons from history

Goodwin wrapped up the conference with a historical perspective and hopeful tone.

Goodwin, who chronicled Lincoln’s decision to bring individuals with different thoughts and perspectives into his cabinet in her book Team of Rivals, said Lincoln naturally had empathy, and could listen to and absorb other people’s points of view. “I think empathy is the most important quality in any setting,” she said.

She also pointed to the emphasis Lincoln, and others she has written about, placed on enjoying themselves:

• Lincoln loved telling humorous stories, which made his cabinet members relax. He also went to the theater more than 100 times during the Civil War, so he could forget about the conflict for a few precious hours.
• Teddy Roosevelt made it a point to get two hours of exercise a day, and during his walking excursions would go over obstacles, such as rocks and rivers, rather than around them.
• Franklin Roosevelt held a cocktail party every night, where guests could talk about anything except the war.

Goodwin said she is often asked if we are living through the worst of times, and points to things our country has made it through, including the Civil War, Great Depression, and World War II.

“People living then didn’t know the end of their story, they lived with the same anxiety and fear we do today,” she said. “We can take some comfort in that.

“The hope in that is that we get to write the next chapter of our story even with all the anxieties we have today.”

This article was written by Terri Dougherty of J. J. Keller & Associates, Inc.