Why Many Companies Are Giving Bonuses – Not Raises – After the New Tax Cuts

Companies like Apple, American Airlines, Bank of America and AT&T have been giving bonuses to their workers in the wake of the new U.S. tax law, but fewer employers are putting their tax savings into a boost in base pay, points out Jena McGregor for The Washington Post.

“A number of companies, including Walmart and many banks, have announced increases to their minimum wage or other adjustments to salaries. But the number of companies offering bonuses — or who say they may do so — are thus far higher,” she writes.

She quotes Ken Abosch, the North American compensation practice leader for Aon: “Salaries represent the single largest percentage of direct labor costs [for employers]. Any time you give someone an increase in their salary, it’s an annuity. It’s not a one-time event like a bonus. It’s additive and it compounds.”

Read the Post article.




Biglaw Firm Hit With $300 Million Gender Discrimination Lawsuit

Above the Law reports that Ogletree, Deakins, Nash, Smoak & Stewart nonequity shareholder Dawn Knepper has hit her employer with a $300 million purported class-action suit alleging gender discrimination and unequal pay.

In her complaint, Knepper alleges: “Through formal policies and widespread practices, [Ogletree’s] male leadership interferes with, limits, or prevents female shareholders from receiving the appropriate credit for the business they bring to the firm and their hard work in running complex and demanding cases day-to-day.”

Kathryn Rubino writes that the complaint also alleges that on average, women shareholders make  to to $110,000 less than their male counterparts. And the complaint notes that while women represent about 58 percent of associates at Ogletree, a mere 32 percent of shareholders are women.

Read the Above the Law article.




Workplace Lawyers Race Against the Trump Clock

Litigators are settling more cases as labor agencies and federal courts fill up with business-friendly appointees, reports Bloomberg.

“While employers across the U.S. paid a record amount in settlements for workplace violations last year, don’t expect this to mark the beginning of a trend. Think of it more as the storm before the calm, as labor lawyers rush to lock in payouts ahead of a shifting legal landscape,” writes Rebecca Greenfield.

She quotes Paul DeCamp a lawyer at Epstein Becker & Green who represents employers:

“I think that what we see is a race to settle. I’ve seen it in my practice. Cases that plaintiffs’ counsel felt very strongly about and seemed more bullish and willing to go to trial—since the election they were more eager to settle those cases.”

Read the Bloomberg article.





Milwaukee Employee Benefits Attorney Joins Quarles & Brady’s Labor & Employment Group

The law firm of Quarles & Brady LLP announced that Michael Wieber has joined the firm’s Labor & Employment Practice Group, Employee Benefits team, as of counsel in its Milwaukee office.

Wieber focuses his practice on tax and fiduciary aspects of 401(k) plans, pension plans, employee stock ownership plans (ESOPs), executive deferred compensation arrangements, and flexible spending plans. He has significant experience in ERISA fiduciary law, including investment advisory and management services, and in mergers and acquisition.

“We are pleased to bring Mike onto the Quarles & Brady team, as his significant corporate and financial expertise will make an immediate, valuable contribution,” said Sean Scullen, national chair of the Labor & Employment Group.

Prior to joining the firm, Wieber spent 19 years at BMO Financial Group. Before BMO, he worked as an associate at Foley & Lardner, LLP focusing on ERISA and Employee Benefits Law.

“I am excited to return to private practice, especially at Quarles & Brady as a member of its Employee Benefits team. I feel as though I have a unique practical perspective that I’m looking forward to sharing with clients and the firm,” said Wieber.

Wieber earned his law degree, with honors, from the Northwestern University Pritzker School of Law and his bachelor’s degree, with highest honors, from the University of Notre Dame.



International HR – Offer Letters and Employment Contracts

When a U.S. company decides to hire an employee in another country, the question of whether to send the applicant an offer letter inevitably arises, writes Samina Weil in the Fisher Phillips Cross Border Employer Blog.

“Sending an offer letter prior to the final contract is normal practice in the US. But this is not the case in other jurisdictions, and for good reason,” she explains.

She describes how some U.S. employment practices differ from those in foreign jurisdictions and how to approach the problems those differences can cause.

“Do not be tempted to send an offer letter (or seek legal advice before doing so), but have a contract drawn up for the position for which you are hiring and personalize it to the individual you want to hire,” she warns.

Read the article.



Scandals Prompt New Approaches to Sexual Harassment Training

High-profile sexual harassment scandals involving the entertainment, politics and media fields are spurring businesses everywhere to take a closer look at their policies and training programs, according to a post on the website of Androvett Legal Media & Marketing.

In many cases, employers are finding that generic policies with cut-and-paste legal text and one-size-fits-all instructional videos are simply not doing enough to connect with employees and address key issues.

With careers at stake – not to mention the reputations of entire companies – employers are re-examining workplace culture, training, complaint procedures and everything in between, says employment attorney Audrey Mross of Dallas’ Munck Wilson Mandala. For example, businesses are finding that live training provides a more interactive experience that resonates with workers. “Previously, many employers thought showing an off-the-shelf training video would be sufficient, but the interactivity of live training does a better job of ensuring that key concepts are fully understood.”

In addition, training is moving beyond a focus purely on harassment to address problems including rudeness, poor judgment and disrespect toward co-workers. States are moving in a similar direction with a recent amendment to California law requiring harassment training to include bullying.

“I am a big fan of moving beyond a recitation of the applicable law to delving into actual examples to help workers begin to understand where the line is between acceptable and unacceptable behavior,” says Mross, who frequently makes presentations to businesses on workplace policies and employment law. “I’ve found that this is what triggers an ‘aha’ moment for many, and often individuals will speak up and share their own experiences with their peers in the training session. When attendees are hearing the message from both the trainer and their fellow workers, it really starts to resonate.”



Webinar: Ten Predictions for Ethics and Compliance in 2018

On Thursday, Jan. 18, 2018, the experts at NAVEX Global will discuss the challenges of ethics and compliance and offer predictions for 2018’s most pressing compliance issues.

The complimentary webinar will be at 1 p.m. Pacific time/ 1 p.m. Eastern time.

This past year was filled with news headlines that resulted in major legal repercussions for many organizations—causing workplace unrest or wreaking havoc on reputations.

Webinar participants will be able to take a proactive look at their programs and make sure they have a legally defensible strategy that’s prepared for any scenario, NAVEX says in its invitation.

Register for the webinar.



Choice of Venue Provision Upheld in Employment Contract

Employment contractForum selection clauses that are not adhesive will be interpreted independently of the court’s determination of the enforceability and validity of the contract as a whole, according to a post in Baker Sterchi Cowden & Rice’s Employment Law Blog.

Robert Chandler discussed the case of Reed v. The Reilly Company, LLC, in which the plaintiff, terminated by the Reilly Co., brought claims in Missouri. Reilly moved to dismiss, based on a contract provision stating that disputes must be brought in Kansas.

“Parties drafting forum selection clauses should exercise care to avoid contracts that are adhesive – i.e. agreements reached without a realistic opportunity for bargaining – and to choose forums which will be considered “neutral” and not overly advantageous to the party drafting the agreement,” Chandler explains.

Read the article.



Two New Partners Join Freeborn in Firm’s Labor and Employment Practice

Freeborn & Peters LLP announced that attorneys James “Jim” F. Hendricks Jr. and Michael P. MacHarg have joined the firm as partners in its Litigation Practice Group. Both attorneys focus on employment counseling and litigation.

“Freeborn has been concentrating on expanding key practice areas by welcoming top-level talent,” said Rachel Atterberry, who leads the firm’s employment practice within its Litigation Practice Group. “Employment law is one of our areas of focus, and we are thrilled to have a deep bench of experience that Jim and Michael complement so well.”

Hendricks and MacHarg most recently were partners at SmithAmundsen LLC in Chicago.

In a release, the firm said:

Hendricks represents employers in union campaigns and National Labor Relations Board (NLRB) charges, as well as collective bargaining, discrimination and human resource issues. His clients work within a number of industries, including automotive, construction, hospitality, manufacturing and healthcare. He assists operations and human resource executives on a variety of issues regarding the development and implementation of employment policies and procedures. He also counsels employers facing labor and employment issues that arise in mergers, acquisitions and divestitures, and personnel transactions, and he advises on preventive labor and employment strategies and training. Throughout his career, Hendricks has handled more than 300 union representation campaigns across the nation. He has represented single employers and hundreds of companies in multi-employer negotiations covering thousands of employees, and filed appearances in more than 300 cases where a union election was being conducted by the NLRB. He also has successfully negotiated first contracts after certification.

Hendricks received his J.D. from the Loyola University Chicago School of Law. He also holds a Master of Science from Loyola University Chicago and a Bachelor of Science from Indiana University.

MacHarg assists clients in union avoidance, collective bargaining, contract administration, unfair labor practices, grievance and arbitration, wage and hour issues, and discrimination. He represents clients in various industries, including government contractors, security, commercial laundry, manufacturing, energy, telecommunications, retail, automotive and healthcare. In more than 20 years of practicing law, MacHarg has successfully represented employers in dozens of union organizing campaigns. He has worked on more than 1,000 unfair labor practice investigations and has successfully tried many unfair labor practices cases, including defending employers against government efforts seeking injunctive relief in federal court. His experience involves vacating arbitration awards, complex and class action wage-hour matters, pension collection cases, and injunctions against picketing in Section 301 cases. He also litigates cases involving ERISA, the Railway Labor Act and unfair competition cases.

MacHarg earned his J.D. from the University of Miami School of Law and his Bachelor of Business Studies from Loyola University in Chicago.




2018 Top 10 Ethics & Compliance Predictions & Recommendations

NAVEX Global has compiled an e-book that presents predictions about the top trends and events that will impact ethics and compliance programs in 2018 — along with recommendations for compliance.

The book can be downloaded from the NAVEX site at no charge.

“Business, societal and political events transpired this past year at a pace that left many with a fractured view of the ethics & compliance industry and its expectations,” the company says on its website. “The experts at NAVEX Global and its thought-leadership network discuss these challenges and opportunities based on their experiences with over 12,000 clients to provide well-informed predictions on what’s to come in 2018.”

The e-book covers:

  • The top trends and events that will impact your ethics and compliance program in 2018
  • How increased awareness and reporting of sexual harassment will affect your program
  • The evolving role of the ethics & compliance officer
  • How to create a culture of compliance

Download the e-book.



Labor Board Burns Through Obama-Era Rules

The Hill reports that the National Labor Relations Board is delivering a flurry of wins to businesses now that it has a Republican majority under President Trump.

In recent days, the independent board tasked with enforcing fair labor practices and collective bargaining rights overruled three Obama-era rules in a series of 3-2 rulings, writes reporter Lydia Wheeler.

One of the rules, which employers had opposed for years, was a controversial NLRB decision that changed the definition of a joint-employer. That rule could have put employers on the hook for labor law violations committed by their subcontractors in some cases.

Read The Hill article.



9th Circuit Judge in SF Under Investigation Over Sexual Misconduct Allegations

A judge on the United States Court of Appeals for the Ninth Circuit in San Francisco is under a formal misconduct inquiry after several of his clerks accused him of inappropriate behavior, according to a report in SFGATE.

Reporter Annie Ma writes that the circuit’s chief judge issued an order launching an inquiry into judicial misconduct by Judge Alex Kozinski, citing sexual misconduct allegations published in The Washington Post.

“Six women who had worked for Kozinski told the Post that he made sexual comments about them and subjected them to inappropriate conduct, such as asking them to watch pornography in his chambers,” according to the report.

Above the Law has a post stating that multiple sources are reporting that three clerks for Kozinski have decided to resign from the court.

Read the SFGATE article.



The ‘Weinstein Effect’: Firms Rethink Holiday Parties Amid Sexual Harassment Concerns

In the era of Harvey Weinstein, The Washington Post warns, you shouldn’t be surprised to arrive at your company holiday party to find someone from human resources “distributing drink tickets, two per head, as if it’s communist Russia and we’re rationing trash red wine now.”


Ross J. Peters, an Illinois lawyer who specializes in sexual harassment cases, told the reporter: “Sometimes, men feel it’s an opportunity to make themselves more familiar in a party atmosphere. Harassers use it for intimate conversation.”

Read the Post‘s article.



How Forced Arbitration and Non-Disclosure Agreements Can Perpetuate Hostile Work Environments

Non-disclosure agreements are part of an arsenal of legal tools that employers have at their disposal to protect their reputation and their bottom line — but those tools often come at the expense of wronged employees, writes Michelle Chen in an article for The Nation.

She also discusses the use of forced arbitration that requires employees to channel their workplace disputes through an extralegal negotiation process, rather than through the courts.

She adds:

According to the National Women’s Law Center (NWLC), both forced arbitration and NDAs have in many workplaces become a standard tactic to preempt workers from taking legal action or disclosing sexual-harassment and -assault charges. These agreements force workers to sign away their rights in exchange for a job, by making them agree to settle future disputes outside the courts through an opaque negotiation process controlled by management and lawyers—effectively sentencing women to silence before they ever step into a courtroom.

Read the article.



Fear Mounts Inside USDA over Trump’s General Counsel Pick

Politico is reporting that morale among many of the Agriculture Department’s legal staff has plummeted since Stephen Vaden, the Trump administration’s nominee to be USDA General Counsel, assumed leadership in March, say several agency attorneys from across the country.

“Vaden, who arrived at USDA in January as part of President Donald Trump’s beachhead team and was appointed principal deputy general counsel two months later, is enforcing workplace changes that have provoked unusually bitter labor negotiations, say the attorneys,” reports Catherine Boudreau. “He also has come under scrutiny for his past work defending state voter ID laws that critics say are discriminatory.

“There is a fair amount of fear right now,” said Jeffrey Streiffer, senior counsel at the USDA OGC’s regional office in San Francisco.

Read the Politico article.



Be Careful When Using Liquidated Damages with Your Non-Compete Clause

A non-compete provision is different than most other contractual terms, because simply having mutual consent and consideration will not automatically render it enforceable for reasons of public policy, points out an article in The In-House Advisor by Shep Davidson of Burns & Levinson.

“While some businesses try to make an end-run around this law by requiring an employee to forfeit some benefit or pay liquidated damages if he/she competes against his/her company, any such requirement will be viewed through the same public policy lens used to scrutinize a formal non-compete provision,” he writes.

Davidson warns that, while a liquidated damages provision is not a silver bullet, if properly drafted, such a clause can be a significant deterrent to an employee who might otherwise decide to test the bounds of a non-compete.

Read the article.




Is It Time for People to Breach Their NDAs and Speak Truth to Power?

Confidential - nondisclosureElie Mystal, writing for Above the Law, discusses some top factors to remember when dealing with a sexual predator who has signed you to a non-disclosure agreement.

Among those factors are: the need for the predator to show actual injury, the information disclosed has to be secret and confidential, courts will consider public policy, and courts will consider unequal bargaining power.

“If you’ve signed a non-disclosure agreement, it’s a risk to violate it. You might get sued, you might be forced to pay back some money,” she warns. “Or you might set liberating case law that allows more of these claims to come forward.”

Read the article.



To Help Bridge Gender Gap, Women Lawyers Should Get Comfy with Self-Promotion

A recent report by the Dallas Women Lawyers Association, titled Bridging the Gap: Practical Resources and Suggestions for Promoting and Retaining Female Attorneys in the Legal Profession, is a concise rundown of the challenges women lawyers face and how to address them, according to Amy Boardman Hunt of Muse Communications.

She says the report illustrates two important points:

1) the legal profession has a long way to go to reach anything close to gender parity, and;

2) it is incumbent on women lawyers to help close the gap, both by advocating for systemic changes in the profession and by engaging in the kind of strategic self-promotion that can position them to make those changes happen.

Read the article.




Handling Off-Duty Misconduct

HR - employees - jobs - hiringThe concept of off-duty misconduct and any on-duty punishment that may occur can sometimes be a slippery slope, warns Natalie Lynch of Lynch Service Company in a web posting.

While there are plenty of instances of people being fired or reprimanded for their off-duty behaviors, there are also instances of terminated employees fighting for reinstatement under the guise that their off-duty conduct did not impact their on-duty work or the reputation of the company, she writes.

“Problems may arise when a company fails to outline what type of off-duty conduct is considered verboten and how employees are to conduct themselves during their off-duty hours. Problems can also arise when an employee punishes or terminates an employee for thoughts or actions that the company deems unsatisfactory, but are not illegal or truly damaging to the company, Lynch writes.

Read the article.



Littler Adds Two Shareholders to Atlanta Office

Littler has added Russell A. Jones and Kathryn S. McConnell as shareholders in the Atlanta office. The  employment litigation and counseling practitioners join Littler from Kilpatrick Townsend & Stockton.

“Our Atlanta office has grown steadily over the years and now comprises more than 40 lawyers,” said L. Traywick Duffie, office managing shareholder of Littler’s Atlanta office. “Adding Russell and Katy, who both bring extensive experience in labor and employment law and a deep knowledge of the region, will further strengthen our team in Atlanta, which recently was among several Littler offices to earn a Tier 1 ranking in the 2018 U.S. News – Best Lawyers® ‘Best Law Firms’ list.”

Jones focuses his practice on providing counseling and training on various issues that arise out of the employer-employee relationship, including compliance with equal employment opportunity laws, union avoidance, wage and hour issues, disability and medical leave requirements, and non-competition and other employment agreements. He also helps businesses comply with state and federal laws related to background checks of employees and job applicants, workplace privacy and information security, policies related to employees’ social media activity, and whistleblowing and retaliation. Jones regularly represents clients in state and federal courts, before administrative agencies, and in the mediation of employment-related claims.

“Having begun my legal career at Littler nearly 18 years ago, I am thrilled to rejoin the Atlanta office and to be part of a firm with unparalleled capabilities and resources,” said Jones. “Littler has handled some of the most complex and significant labor and employment cases, including several out of the Atlanta office, and I look forward to leveraging Littler’s impressive platform to serve the evolving needs of global employers.”

McConnell counsels and defends multinational and domestic companies on employment and traditional labor law matters, including discrimination, harassment and retaliation in the workplace; wrongful termination; wage and hour compliance; unfair labor practice charges and union avoidance; and restrictive covenants. She regularly prepares and advises on non-competition, confidentiality, non-disclosure and other employment-related agreements, as well as the development of incentive and commission plans. McConnell’s employment litigation practice includes defending employers before state and federal courts, the Equal Employment Opportunity Commission and equivalent state agencies, and the National Labor Relations Board, as well as representing employers in arbitrations implicating collective bargaining agreements.

“Littler is a dominant force in labor and employment law, with technological capabilities, deep subject matter knowledge and a global footprint that is unrivaled in the space,” said McConnell. “I am excited to work with such a talented team of attorneys in the Atlanta office and across the globe to counsel employers operating in the U.S. and globally.”

Jones received his J.D., magna cum laude, from the University of Tennessee College of Law and his B.S., summa cum laude, from Appalachian State University. He worked as an associate in Littler’s Atlanta office from 2000 to 2003. McConnell received her LPC, with honors, from the College of Law in the United Kingdom and her B.A. from the University of Cambridge. She is admitted as a solicitor in England and Wales and, earlier in her career, worked in the London office of an international law firm.