Biglaw Firm Pushing Out Senior Associates

Above the Law reports that Cahill Gordon sources say that the overwhelming majority of senior litigation associates in a particular class are being asked to leave the firm before they’ve had the chance to go up for partnership.

Senior editor Kathryn Rubino explains:

“Multiple sources report the associates were told they weren’t partner or counsel material, given only a portion of their bonus and told they had six months to get out of Dodge. And even though pushing out these associates is being framed as connected to their inability to make the leap to the next level, sources say most of them weren’t even able to hear any reviews of their work.”

Read the Above the Law article.



Jury Awards $21 Million to Hotel Dishwasher After She Was Forced to Work on Sundays

A federal jury in Miami set a $21.5 million verdict for a Haitian immigrant in a religious accommodation case who lost her job at a Conrad Hotel because she would not work on Sundays because of religious beliefs.

The Washington Post reports that Marie Jean Pierre informed the hotel when she was hired about a decade ago that she was a missionary for the Soldiers of Christ Church. Most of the time the hotel allowed her to have Sundays off, but in 2015 a kitchen manager started insisting that she work on Sundays.

“Pierre’s attorney, Marc Brumer, said the hotel had an obligation to ‘reasonably accommodate’ their employees’ religious beliefs — and argued they could have easily done so for Pierre. Instead, he said, they charged her with absenteeism and fired her,” writes the Post‘s Amy B. Wang.

A cap on punitive damages will limit the payout to about $300,000 if the verdict is upheld.

Read the Post‘s article.





Negotiating a Labor Contract: Finding the Style that Suits You

A post on Foley & Lardner’s Labor & Employment Law Perspectives blog discusses negotiation styles for employers when the time comes for a new labor contract.

“There isn’t a one-size-fits-all answer as to what works best,” writes Thomas C. Pence. “Some people yell a lot and are very effective with it. Others try yelling and come off sounding cartoonish (never a good thing in negotiations). The best advice is to be true to yourself.”

Pence advises contract negotiators to be self-assured and determined in arguing their positions.

Read the article.



Supreme Court Hands Rare Win for Workers in Arbitration Case

Neil Gorsuch

Justice Neil Gorsuch

The U.S. Supreme Court on Tuesday sided with a long-haul truck driver who sued his employer for failing to pay him a minimum wage, handing down a decision that could have broad ramifications on the transportation sector and the economy as a whole, reports CNBC.

CNBC reporter Tucker Higgins explains:

“In an opinion delivered for a unanimous court, Justice Neil Gorsuch held that courts must decide whether an exception in the Federal Arbitration Act, or FAA, for transportation workers applies before requiring arbitration. And, he wrote, that exception applies not just to traditional employees but also to independent contractors.”

The U.S. Chamber of Commerce had urged the court to rule in favor of the employer.

Read the CNBC article.



HP and Hewlett Packard Enterprise Will Pay a $25 Million Settlement to Salespeople Who Sued Over Messed Up Pay

Business Insider reports that about 2,000 of HP’s and Hewlett-Packard Enterprise’s salespeople will finally be getting their share of a $25 million settlement paid to them by the two companies.

“In 2017, HP agreed to the $25 million settlement, from which the lawyers will take their cut — but it was just this week that the court approved the settlement arrangement, according to Business Insider’s Julie Bort. “That means the money should be soon forthcoming to the plaintiffs at last, according to the final court documents seen by Business Insider.”

The company’s salespeople complained that the company’s antiquated computer systems were not doing a good job of calculating their commissions.

Read the Business Insider article.



Arbitration Agreements: Tips for Enforceability

Steven P. Gallagher of Akerman LLP offers some tips on what to do — and not do — when considering arbitration agreements for new hires.

He discusses some of the advantages and potential disadvantages to having arbitration agreements in place for employees.

“Because arbitrations are private, the proceedings, claims, and ultimate outcomes are ordinarily confidential. Most interesting to employers is that arbitrators tend to award lower damages than juries,” Gallagher writes.

But sometimes arbitration is “neither quicker nor less expensive than litigation, and arbitrators are sometimes inclined to ‘split the baby,’ even if the law is clearly on your side.”

Read the article.




To Be a Good In-House Counsel, Be Prepared to Break The Law, Maybe

As an in-house counsel — the individual tasked with mitigating risk for your employer — sometimes you have to make a decision much hastier than you might normally be comfortable with doing so, writes Stephen R. Williams in a column for Above the Law.

Williams, who works in-house with a multi-facility hospital network, tells about a crisis that dropped into his lap late on the Friday before the week of Christmas. It involved a report from an employee who said one of their coworkers made what was perceived to be a comment reflecting a suicidal thought.

His column tells how he dealt with the situation, even though the colleagues who usually handle such cases were unavailable because of the holiday season.

Read the article.



When a Promise Isn’t Enough – Crafting Proper Employee Patent Assignments

Employees are the engine that drives a manufacturer’s innovations, but employees’ potentially patentable innovations only become the employer’s intellectual property if the proper patent assignment language is used, warns Foley & Lardner in its Manufacturing Industry Advisor blog.

Authors Christopher King and Richard Dancy explain:

“All employees that may develop potentially patentable innovations during the course of their employment should be required to sign contracts transferring ownership of all intellectual property rights to their employer. This may even include factory employees who submit ideas for product improvements through an employee suggestion program. However, if employee patent assignments are not carefully crafted, manufacturers may end up in a nightmare situation – believing they own a valuable patent invented by an employee when, in reality, it belongs to the employee.”

Read the article.



Enforcing a Non-Compete Agreement? One Size Does Not Fit All

Non-compete agreements are subject to state law, and states vary in their treatment of them. There is no one-size-fits-all non-compete agreement, and the enforceability of a non-compete agreement turns upon the state law under which it is construed, points out a blog post from Knobbe Martens.

A case in point involves two high-end, off-price fashion brands are duking it out over an employee jumping ship, write authors Alexander D. Zeng and Mark Kachner.

“Generally, states that are more willing to enforce non-compete provisions do so for countervailing policy reasons: to prevent trade secret misuse, reduce the cost of trade secret litigation, protect employers’ investments in employees, and favor freedom of contract. The outcome of this lawsuit will be heavily impacted by the state law governing Arcuri’s non-compete agreement.”

 Read the article.



Webinar: 2019 Top Ten Predictions for Legal Compliance

NAVEX Global will present a complimentary webinar titled “Top 10 Compliance Trends for 2019” on Thursday, Jan. 17, 2019, beginning at 10 a.m. Pacific time (1 p.m. Eastern).

The event will cover topics like GDPR, regulatory vs. public pressure, expanding third party risks, and more.

Recommendations will include:

  • Aligning whistleblower stats to increased revenue
  • Understanding the full landscape of third-party risk
  • The current and future state of GDPR
  • Managing culture and compliance around artificial intelligence
  • Incentivizing employees for ethical behavior
  • And more…

Register for the webinar.



Court Rules Law Firm’s Arbitration Provision Unconscionable

A California appellate panel determined that a law firm’s arbitration agreement with a partner was unconscionable, reversing a trial court’s grant of a motion to compel arbitration in an employment dispute, according to a post on the website of Manatt, Phelps & Phillips.

In the case, a litigator who had been employed at Winston & Strawn sued the firm, asserting claims of discrimination, retaliation and wrongful termination. A trial court granted the firm’s motion to compel arbitration.

“The arbitration provision in the employment agreement signed by [the plaintiff] failed to meet the standard of Armendariz v. Foundation Health Psychcare Services, Inc., the court said, and was unconscionable. Further, the taint of illegality could not be removed by severing the unlawful provisions without altering the nature of the parties’ agreement, leading the panel to void the entire agreement and send the case back to Superior Court.”

Read the article.




5th Circuit: Company in Class Action Waived Right to Arbitrate Because of Litigation Conduct

The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied writes John Lewis in BakerHostetler’s Employment Class Action Blog.

He discusses the recent Fifth Circuit opinion in Forby v. One Technologies, L.P., which illustrates the difficulty of applying the “prejudice” requirement in a consumer fraud and unjust enrichment class action.

In reversing a district court ruling, the appellate court highlighted some analytical problems that apply equally in the employment law context.

Read the article.



Study Finds Top Law Firms’ Male Partners Make 53% More Than Female Partners

The difference in average compensation for male and female partners at top U.S. law firms amounts to a 53 percent pay gap, according to a Major, Lindsey & Africa survey.

The ABA Journal summarizes the findings:

Average compensation for male partners responding to the survey was $959,000, which is 53 percent more money than the average of $627,000 paid to female partners, according to the partner compensation survey from Major, Lindsey & Africa. Average compensation for all partners was $885,000.

Most male partners don’t perceive a problem with pay differences, according the new survey.

Read the ABA Journal article.



China Employment Contract FAQs

ChinaThe end of the year brings an onslaught of China Employer Audits, and with those audits comes an onslaught of China employment law questions, writes Grace Yang in the Harris Bricken China Law Blog.

She discusses some of the most commonly asked questions on China employment contracts and provides short answers to each of them.

The issues include using an English version of contracts, contract templates provided by Chinese labor authorities, termination of signed China employment contracts, open-term contracts, offer letters, and the need to review contract templates.

Read the article.



Longtime Colleagues Reunite to Create Labor & Employment Section

Christie Newkirk and Mark A. Shank have joined Diamond McCarthy LLP in Dallas and created the firm’s Labor & Employment Law Section.

The firm said Newkirk has more than 20 years’ experience representing employers and executives. Her work involves litigation, counseling, investigations, training, and representing executives.

Shank’s practice focuses on complex disputes, which he arbitrates, investigates, prosecutes, or defends as a neutral across the nation, according to the firm.

Read about the two lawyers.



Download: Best Practices For Conducting Fast, Defensible Internal Investigations

Zapproved has published a new guide that outlines the five best practices for conducting fast, defensible internal investigations.

The guide can be downloaded from Zapproved website at no charge.

An internal investigation is exactly what it sounds like: an inquiry into an organization’s internal operations, Zapproved says on its website. Internal investigations frequently involve allegations of wrongdoing, such as embezzlement, sexual harassment, discrimination, or wrongful termination. However, an internal investigation may also be conducted in response to a regulatory compliance concern initiated by agencies like the U.S. Securities and Exchange Commission (SEC) or as part of a due diligence process before a merger or acquisition.

The goal of an internal investigation is to either detect and respond to wrongdoing or dispel suspicions. Organizations should respond to investigations in a way that curtails any specific incident of wrongdoing and discourages similar future violations. The overarching goal is to create an open, productive work environment that is neither distracting nor discriminatory.

Download the guide.



Non-Compete Cautionary Tale

A recent post on Robinson+Cole’s Manufacturing Law Blog discusses a recent court decision that underscores the need for manufacturers to exercise caution when seeking to impose post-employment restrictions on key employees.

Author Matthew Miklave explains that manufacturers often seek to bind employees to such restrictions (non-compete, non-solicitation and confidentiality obligations) in order to protect customer lists, pricing information and other confidential or “inside” information which gives them a competitive advantage in the market-place.

The case, Oxford Global Resources, LLC v. Hernandez, is an example of why these agreements must be carefully drafted to be effective when needed.

Read the article.




Law Firm Associate Signing Bonuses Take a Dive, Recruiter Finds

Bloomberg Law reports that average signing bonuses for law firm associates have dropped by $10,000 since 2017 partly because salaries have gone up and women are getting less, according to client data compiled by a legal staffing and recruiting company.

The company, Special Counsel, found that the average signing bonus this year so far is about $17,000. One Special Counsel client topped the list with $60,000, compared to a record $90,000 last year, report Bloomberg reporters Sam Skolnik and Madi Alexander.

The vast majority of those receiving signing bonuses were law firm associates. The others were in-house attorneys or law firm counsel or partners, the report adds.

Read the Bloomberg Law article.



New Survey Rates Big Law Policies to Build Gender Equality

A new survey aims to move forward the conversation about equality in Biglaw by examining which firms are taking key steps to close persistent gender gaps.

Bloomberg Law reports on the survey, which was conducted by Diversity Lab, an incubator for diversity and inclusion in the law, and ChIPs, a nonprofit organization focused on advancing and connecting women in technology, law and policy.

Top scoring firms were Brooks Kushman and Sheppard Mullin.

Read the Bloomberg Law article.



Hospital System Fires General Counsel Amid Alleged Compliance Violations

The Broward Health board fired its general counsel Lynn Barrett as the Florida taxpayer-supported health system continues to struggle after a series of state and federal investigations related to alleged overspending, kickbacks and open-government law violations, reports Modern Healthcare.

“Broward Health doctors alleged during Wednesday’s board meeting that Barrett helped cultivate a hostile culture at the South Florida health system, which led to a ‘mass exodus’ of doctors that crippled the organization,” explains reporter Alex Kacik.

Barrett’s dismissal comes amid a controversy over an independent review process led by law firm Baker Donelson concerning a $69.5 million healthcare fraud settlement agreement reached in 2015.

Read the Modern Healthcare article.