Enforce Arbitration Agreement or Waive Right to Arbitrate Trade Secret Misappropriation Claims

ArbitrationA recent federal court denied an employer’s motion to compel arbitration, finding that it waived its right to arbitration by engaging in litigation.

George L. Kanabe, a partner in the San Francisco office of Orrick, Herrington & Sutcliffe LLP, discusses three key lessons the ruling provides for plaintiff-employers.

Kanabe reports that the ruling noted, “[t]here is no other reasonable interpretation of plaintiff’s untimely demand for arbitration than as a deliberate tactic to test the judicial waters but then, when those waters did not flow the direction plaintiff intended, to change routes in hopes of finding a different current.”

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Creating Defensible Employment Agreements Before an Employee’s First Day

Employment contractSignificant tools in the arsenal of strategies are contracts signed by the employee, but waiting until the employee departs is too late to start thinking about them, points out Spiwe L. Jefferson in an article on the website of the Association of Corporate Counsel.

In her article, she discusses contract considerations at the beginning of the employment relationship.

She covers confidentiality agreements and nonsolicitation agreements,. Under the “noncompete agreements” heading, she discusses limiting temporal scope, protecting legitimate interests, exempted professions, timing requirements, consideration, and geographic limits.

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JPMorgan Judge Upends $1.1 Million Whistle-Blower Verdict

A U.S. district judge says she saw prejudice in a jury’s verdict Tuesday that would have awarded $1.13 million in damages to a former JPMorgan Chase & Co. employee over her dismissal, according to Bloomberg.

The Manhattan jury deliberated for five hours to find the former wealth manager has been fired illegally. The jury awarded her $563,000 in back pay and $563,000 for emotional damage.

Reporter Bob Van Voris quoted Judge Denise Cote:

“The award of emotional damages says to me that the jury was prejudiced against the bank. That undermines the entire verdict.”

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Can You Really Shut Down Your Company a Week After Your Workers Unionize?

American labor laws normally protect workers from retaliation for unionizing, but billionaire CEO Joe Ricketts seems to have used a dramatic exception when he closed his news websites after some workers voted to unionize: A business may always close its operations entirely.

Francie Diep, a reporter for the Pacific Standard, writes that all of the publcations’ offices — including those in San Francisco, Los Angeles, Chicago and Washington, which had not voted to unionize — are now closed.

“If lawyers decide to pursue a case charging that Ricketts acted illegally, they’ll have to prove that some part of the business is still operating — say, if Ricketts were tied to another media company somehow — or that, after the shutdown, Ricketts opened up a similar business elsewhere,” Diep writes.

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Tips For Drafting Employee Handbooks: Avoiding Breach of Contract Claims

A new post on Bryan Cave’s At Work blog explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

“To avoid breach of contract claims premised on employee handbook policies, employers should include an express contract disclaimer in their employee handbooks,” write Bill Wortel and Christy Phanthavong.

The article explains the “at will” clause, the use of a reservation of right by the employer to modify policies, and the need for the disclaimer to be conspicuous.

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Billionaire CEO Shuts Down Publications After Vote to Unionize

The CEO of a group of digital local news sites shut down the publications a week after reporters and editors in the combined newsroom of DNAinfo and Gothamist voted to join a union, reports The New York Times.

Joe Ricketts, the billionaire founder of TD Ameritrade, owned the sites.

“For DNAinfo and Gothamist, the staff’s vote to join the Writers Guild of America East was just part of the decision to close the company, write Andy Newman and John Leland.

“The decision by the editorial team to unionize is simply another competitive obstacle making it harder for the business to be financially successful,” said  a spokeswoman for DNAinfo.

Read the NYT article.

 

 




How Lawyers Protect the Harvey Weinstein in Your Workplace

In workplace harassment cases — both in Hollywood and in the rest of the American workforce — many companies try to use nondisclosure agreements to protect the employer from legal consequences for wrongdoing, according to Bloomberg Law. And the NDA can also serve to keep criminal behavior out of the public eye and the courts.

That’s how someone like Hollywood producer Harvey Weinstein can be a repeat offender without consequence, explains Bloomberg reporter Rebecca Greenfield.

She quotes Peter Romer-Friedman, an employment lawyer at Outten and Golden: “It’s buying silence. It’s buying confidentiality. It’s trying to sanitize. These agreements are often protecting criminal activity.”

“NDAs are geared to ensure that the fraction of people who do come forward can’t warn others or bring claims to light, all of which contributes to the culture of silence around workplace harassment.
Legal scholars are now asking if settlements backed by nondisclosure pacts are protecting criminal activity,” Greenfield writes.

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Lawsuit Alleging General Electric Ripped Off Its Workers Shows the Pitfalls of 401(k) Plans

A lawsuit recently brought against General Electric Co. raises the question: Can your employer be trusted to manage your retirement fund exclusively for your own benefit?

Los Angeles Times reporter Michael Hiltzik explains that the suit alleges that GE managed the plan for its own benefit by loading it with mutual funds owned by its own subsidiary.

“The funds charged high fees while also underperforming the investment markets, a double-barreled drawback that cost employees millions in potential gains,” according to Hiltzik.

Plaintiffs claim that a large portion of the funds was invested in GE-owned mutual funds, and the company pocketed the management fees paid by its own employees. All but one of the five GE funds underperformed its benchmark investment index.

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How to Structure Global Mobility Assignments, Expatriate Postings and Cross-Border Secondments

International business - globe -worldIn structuring overseas postings, multinationals inevitably struggle with the interplay between expatriate assignment strategy and the legal ramifications of a particular foreign posting, points out Donald C. Downling, a shareholder in Littler Mendelson P.C.

“The various types of cross-border personnel moves raise questions of how best to structure a given international assignment,” he writes. “To resolve these questions, we address four threshold issues: (A) who is and is not an expatriate?; (B) four expatriate structures; (C) selecting the best expatriate structure; and (D) written expatriate agreements.”

A link at the end of the article on Littler’s website connects to the full report.

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NFL Players May Have an Ally in Their Protests: Labor Law

The New York Times reports that, as National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

Reporter Noam Scheiber writes that, since Trump’s call for firing players, their demonstrations now could constitute labor activity that’s federally protected, explains Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board.

“If they’re standing up for other players’ rights to kneel in the context of their job and keep their job, it seems to me to be protected concerted activity,” Bodie said.

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Fox News’ General Counsel, Under Legal Siege, Takes Leave From Network

Fox News general counsel Dianne Brandi will take an unspecified leave of absence from the company, in the latest sign of fallout from the network’s long-running sexual harassment scandal, reports The Washington Post.

Brandi has been named in four lawsuits filed by former Fox employees or contributors alleging harassment. And a federal investigation into Fox News’ financial practices began to focus on her role during the long tenure of its co-founder and former chairman, Roger Ailes, sources told the Post. Investigators are looking into payments made under Ailes to employees who had accused him and other executives of harassment or mistreatment.

“Brandi could prove to be a key figure in the investigation because of her long and close association with Ailes, who was ousted from Fox last year amid harassment allegations and died in May,” writes reporter Paul Farhi. “She may have direct knowledge of some of his more secretive and allegedly sinister management practices, people who are involved in the investigation said.”

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Will the Supreme Court End Employment Contract Arbitration Clauses?

Employment contractThe validity of arbitration clauses in employment contracts is unclear and is now before the U.S Supreme Court, points out Mary An Couch in Bradley Arant Boult Cummings LLP’s Labor & Employment Insights blog.

The Supreme Court heard oral argument in National Labor Relations Board v. Murphy Oil, USA, Inc. and two other consolidated cases about whether such clauses violate the National Labor Relations Act (which governs employer-employee relations) or whether the Federal Arbitration Act (which governs arbitration agreements) trumps the NLRA, she writes.

The relevant cases being considered are from the 5th Circuit, which found the arbitration clause did not violate the NLRA, and the 7th and 9th circuits, which found similar clauses unenforceable.

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Yes, Overtime Laws Apply To Law Firms

A pair of lawsuits allege two Florida law firms failed to pay administrative workers proper overtime wages in compliance with the Fair Labor Standard Act, reports Above the Law.

Reporter Kathryn Rubino explains: “Brandi Durrett, a case manager, is suing personal injury firm The Disparti Law Group and its founder, Lawrence Disparti over unpaid overtime wages. Jayne Hinkle, an office manager, is making similar claims against The Jodat Law Group and partner Gary Jodat.”

Plaintiffs claim their employers would use various methods to circumvent overtime compensation requirements.

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CBS Fires Legal Counsel Over Facebook Comments on Vegas Shooting

CBS fired a a senior legal counsel after she criticized some victims of the Las Vegas mass shooting as “Republican gun toters” who did not deserve sympathy, reports The Washington Post.

“Hayley Geftman-Gold, who was a vice president and senior legal counsel at CBS in New York, also wrote on Facebook that she had no hope that Republicans — whom she called ‘Repugs’ — would ever take action and ‘do the right thing’ if they didn’t do anything when children were murdered, an apparent reference to the December 2012 Sandy Hook shooting that left 28 people dead, including 20 children, killed inside their elementary school in Connecticut,” writes Mary Hui.

CBS confirmed firing Geftman-Gold and called her comments on social media “deeply unacceptable.”

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Employment Attorney: NFL Players Can Be Fired For Political Protests

President Donald Trump has a solution to stop football players from taking a knee in protest during NFL games.

“The NFL has all sorts of rules and regulations,” Trump said in a tweet this week. “The only way out for them is to set a rule that you can’t kneel during our National Anthem!”

But can NFL owners really do that? Yes, says noted Dallas employment lawyer Rogge Dunn.

“This is no different than employers prohibiting employees from smoking at the office or outside of the office,” said Dunn, a partner at Clouse Dunn LLP.

As reported on the website of Androvett Legal Media & Marketing, more than 100 pro football players defiantly knelt or locked arms before games on Sunday and Monday. Many did so following Trump’s harsh criticism at a campaign rally in Alabama late last week. He said in a speech:

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’”

While last weekend’s wave of protests were a show of solidarity against President Trump, former San Francisco 49ers quarterback Colin Kaepernick actually sparked the movement in 2016 by sitting on the bench during the national anthem to put a spotlight on the victimization of African-Americans by police.

Regardless of the cause, Dunn said more employers are regulating employees’ actions inside and outside of work.

“An employer can regulate employees’ actions at the office and outside, including limiting their political activities and firing them for speaking out or protesting,” he said.

 

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Tree Trimming Firm Pays Biggest Fine in U.S. Immigration Case

A tree trimming company has been handed the largest penalty imposed in a United States immigration case, totaling $95 million, after pleading guilty to employing illegal immigrants, the U.S. Attorney’s Office said.

Reuters reports that Asplundh Tree Experts Co., which trims trees and clears brush for power and gas lines across the country, hired employees who provided fake identification documents from 2010 to 2014, the U.S. Attorney’s Office in Philadelphia said.

The prosecutor said the company’s managers were “willfully blind” as supervisors and foremen hired illegal immigrants, writes Brendan O’Brien.

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WilmerHale Acciddentally Sent Whistleblower Docs to Wall Street Journal

MistakeWhen The Wall Street Journal broke a story about the firing of PepsiCo Inc.’s general counsel, the newspaper had some inside information: someone at WilmerHale accidentally sent a privileged memo about the case to the publication.

Above the Law recounts the story of how the memo, discussing a subpoena whistleblower/GC Maura Smith received, was sent to a group of lawyers — and the Journal.

Writer Joe Patrice speculates that “someone’s inline autocomplete got the better of them.” He also has some tongue-in-cheek advice for WilmerHale: call the whole thing fake news.

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SEC Probing Pepsi’s Former GC After She Claimed She Was Wrongly Ousted

Former general counsel for PepsiCo Inc. Maura Smith is now the focus of an investigation by the SEC after she claimed she was fired in retaliation for the way she handled earlier internal probes concerning allegations of wrongdoing in Russia, according to a report at TheStreet.com.

The Wall Street Journal originally reported on the investigation.

Smith was Pepsi’s general counsel for little more than a year, until June 2012, when she was tasked with overseeing outside lawyers the company hired to investigate business practices with Wimm-Bill-Dann, a Russian dairy product and juice maker Pepsi acquired for $5 billion in 2011.

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BigLaw is Doomed If Clients Refuse to Pay for Associates

Some general counsel are starting to push back against big law firms charging $400 an hour for the work of associates, writes Joe Patrice for Above the Law.

Patrice quotes from an Am Law Daily report on a recent summit:

At a Manhattan conference on legal innovation this month, Mark Smolik, the general counsel of DHL Supply Chain Americas, had a message for the law firm representatives in his audience.

“Sorry, law firms. You spend on the training,” Smolik said. “I cannot afford to pay your associates $325 an hour.”

Smolik warned the group that he could hire those associates himself and “pick them up right out of law school.”

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Biglaw Firm Announces Hundreds Of Buyouts And Layoffs, Almost 500 Affected

Layoff - dismissal - firedAbove the Law reports that Hogan Lovells recently decided to offer “voluntary retirement” packages to about 400 of its senior business support staff members in the U.S.

Staci Zaretsky writes that those who have been with the firm for at least five years were offered an out, and it’s expected that 5 to 10 percent of those who received the offer will take it.

“In addition to the hundreds of voluntary buyouts Hogan Lovells is offering to business staff members here in America, the firm is set to cut up to 90 jobs in London thanks to a recent restructuring,” Zaretsky adds.

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