What to Do When You’re in the Sexual Harassment Hot Seat

Meritas will present a webinar titled “When #MeToo Means #YouToo: What to do when you’re in the sexual harassment hot seat.”

The event will be Wednesday, May 2, 2018, at 1 p.m. CDT.

“The #MeToo movement has many employers uncertain about the best ways to protect themselves from sexual harassment complaints and the right way to respond after a complaint has been made,” the firm says on its website. “This seminar will explore how our definitions of sexual harassment have evolved in the age of #MeToo and the misconceptions that have formed around this issue.”

“Participants will come away with actionable advice they can put to use to avoid the damage that such claims can create, not just in terms of liability but also in workplace culture, employee attraction and retention.”

Register for the webinar.




DOJ Stomping Out ‘No Hire’ Agreements Among Competitors

A recent article published by Goodwin Procter describes a Department of Justice challenge to an agreement between two of the largest rail equipment suppliers in the world that prohibited them from competing to hire each other’s employees, often referred to as “no poach” or “no hire” agreements.

“The negotiated settlement requires the Defendants to cease participation in these agreements and imposes a slew of onerous compliance obligations to assure no conduct of this sort occurs in the future,” according to the article. “This is a notable harbinger of the DOJ’s future enforcement intentions. Companies with any such agreements with competitors – be they written or informal – should consult with counsel immediately to assess their potential exposure. Agreements that are reasonably necessary to achieve a legitimate business transaction or collaboration between or among companies remain lawful.”

Read the article.



No-Poach Agreements Targeted by Plaintiffs, Enforcement Agencies and Senators

Agreements among companies to not hire each other’s workers are more risky than ever, warns Pepper Hamilton LLP in a post on its website.

“The DOJ’s Assistant Attorney General for the Antitrust Division, Makan Delrahim, stated on January 19 that the division has criminal cases targeting these agreements in the works,” the post says. “Meanwhile, lawsuits challenging no-poach agreements in technology, entertainment, health care and other industries have settled, sometimes for hundreds of millions of dollars. The DOJ announced its latest settlement, a civil settlement with two rail equipment suppliers, on April 3, underscoring that it did not bring criminal charges only because the suppliers ended their agreements before the FTC and DOJ issued guidance on ‘no-poach’ agreements in October 2016.”

The article concludes with some actions that firms should take to identify and limit their exposure.

Read the article.



Sinclair-Style Employment Contracts That Require Payment for Quitting are Uncommon

Sinclair Broadcast Group, a company that owns local news stations across the country, is itself in the news for requiring its newscasters to read a script about “one-sided news stories plaguing our country.”

The Conversation reports that some Sinclair employees have said that their employment contracts made it prohibitively expensive to walk away.

Elizabeth C. Tippett, associate professor of law at the University of Oregon and author of the article, offers her take on the issue: “A Los Angeles Times journalist posted an excerpt of a contract that he claims to have received from a Sinclair employee. After reviewing it, I agree with other attorneys who noted that the legality of the provision depends on whether the fine is similar to the costs Sinclair would incur if the employee leaves prematurely.”

Read the article.



May 3 Live Event: Explore the Value of ESOPs By Studying a Proven Implementation

Bloomberg Tax will present a live event designed to help business owners, tax, finance directors, in-house counsel, bankers and investment professionals including PE & hedge fund managers to learn how employee stock ownership plans (ESOPs) can provide more than just an exit strategy. They may be an opportunity for a growing business and its employees, the company says.

The event will be Thursday, May 3, 2018, 2:30-6 p.m., at Bloomberg L.P., 120 Park Avenue, New York 10165.

New Era of Material Wealth Creation With ESOPs” will look at all the benefits associated with ESOPs, including top performer retention, growing capital, and future planning.

Presenters will move past theory into the practical implementation of an ESOP. Through a case study, thought leaders will explore all of the stages of the process, including crafting the right design, securing employee buy-in, and more, Bloomberg says on its website.

Register for the event.



Former University GC Gets a $430K Retirement Payout

When Michigan State University head lawyer Robert Noto — under fire for his leadership in the Larry Nassar sexual assaults scandal — retired in February, he did so with a generous payout worth more than $430,000, reports the Detroit Free Press. That’s more than a year’s salary for Noto.

Noto, who had been with the university since 1995, resigned about a month after MSU Trustee Brian Mosallam called for his immediate resignation.

Reporter David Jesse writes that Noto received:

  • Six months of his $403,100 annual salary. That’s $201,550.
  • Payment for 151 unused vacation days. That’s $234,110.
  • The use of an university-owned car through Sept. 5. He also gets computer support from the university for the same time period.

Read the Free Press article.



What Provisions are Typical in a Separation Agreement?

Daniel Schwartz, writing for Shipman & Goodwin’s employment law blog, provides a handy list of typical provisions in a separation agreement between an employer and an employee.

He prefaces the list with a caveat: His description of a “typical” agreement does not mean that these provisions are in every agreement or even that these provisions ought to be in some agreements. Each separation or settlement has differing facts that may make certain provisions more important than others.

Some of provisions on the list include nondisparagement of one or more of the parties, return of property, and benefits upon separation of employment.

Read the article.




Target Pays $3.7M to Settle Lawsuit Over Racial Disparity in Use of Criminal Background Checks

Image by Mike Mozart

The Minneapolis  Star Tribune is reporting that Target Corp. has agreed to pay $3.7 million to settle a lawsuit over concerns that the way it uses criminal background checks as part of the hiring process has disproportionately hurt black and Latino applicants.

Reporter Kavita Kumar quotes Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund: “Target’s background check policy was out of step with best practices and harmful to many qualified applicants who deserved a fair shot at a good job. Criminal background information can be a legitimate tool for screening job applicants, but only when appropriately linked to relevant questions such as how long ago the offense occurred and whether it was a nonviolent or misdemeanor offense.”

As part of the settlement of the class-action complaint, independent consultants will recommend changes to Target’s current screening guidelines.

Read the Star Tribune article.



Will You Agree to an Inclusion Rider?

Diversity - employmentEmployers large and small are committed to taking action to pursue expanded diversity and inclusion in their workforces through the use of a contract provision known as an “inclusion rider,” points out Don Lawless in a post in Barnes & Thornburg’s Hot Topics in Employment Law blog.

“Consideration of gender, race, or national origin in pursuit of diversity is a legal two-way street,” he warns. “If goals are applied like quotas, it creates the possibility of reverse discrimination claims by qualified and interested job candidates who are not considered because they will not help meet the established metrics.”

The article states that sophisticated employers have used established goals as a tool toward implementing equal employment opportunity objectives, steering clear of applying goals like quotas.

Read the article.




Webinar: How Solid is Your Whistleblower Program?

More whistleblowers turn directly to the SEC to report complaints of alleged misconduct than to internal reporting systems, reports NAVEX Global. A recent U.S. Supreme Court ruling further encourages this behavior, so it is critical to evaluate a company’s employee whistleblowing program.

NAVEX will present a complimentary webinar on the subject on Tuesday, April 10, 2018, beginning at 10 a.m. Pacific / 1 p.m. Eastern time.

Participants will hear new insights from the 2018 Ethics & Compliance Hotline & Incident Management Benchmark Report. Experts at Baker McKenzie and NAVEX Global have analyzed the data to show you how to assess your program and improve the odds that an employee will report to you first—giving you critical foresight into potential organizational risk.

Presenters will be Carrie Penman, Chief Compliance Officer and Senior VP, NAVEX Global; and Scott Nelson, Partner, Baker McKenzie LLP.

Register for the webinar.



Trump Labor Board Member Forgot About Conflict of Interest, Watchdog Says

National Labor Relations Board member William Emanuel violated a White House ethics pledge by participating in a closely watched case involving his former law firm, the NLRB’s inspector general concluded in a report obtained by Bloomberg Law.

Bloomberg reporters Chris Opfer and Hassan A. Kanu write that Emanuel told Inspector General David Berry that he didn’t realize former firm Littler Mendelson represented a business in the seminal Browning-Ferris Industries case, although he previously flagged the litigation for lawmakers as one that he might need to sit out, according to Berry’s report. Emanuel then joined the rest of the five-member board in directing its top attorney to ask an appeals court to drop the case.

They report that Berry said the inconsistency in Emanuel’s statements to Congress and the IG “is not sufficient to show that” Emanuel “intentionally lied.”

Read the Bloomberg article.



Barnes & Thornburg Adds Two Labor & Employment Partners in Los Angeles

Barnes & Thornburg LLP has added Dawn Collins and Tae Kim as partners in the Labor & Employment Department in Southern California.

Collins and Kim, previously shareholders at Ogletree Deakins, are employment litigators with extensive experience in California and federal law. In a release, the firm said they work with corporations and management in connection with a variety of employment law matters, including high-stakes wage and hour disputes and discrimination, harassment, and retaliation claims. They also assist with workplace investigations and advise clients on compliance best practices.

“Dawn and Tae are excellent additions to the firm and enhance our already strong capabilities in California, where companies are challenged to navigate the state’s nuanced employment laws,” said Kenneth Yerkes, chair of Barnes & Thornburg’s Labor & Employment Department. “Our clients need to be more vigilant than ever regarding their employment practices, and having such accomplished and reputable attorneys on the ground is a great benefit to them.”

Collins and Kim are the latest arrivals to the firm’s Los Angeles office, which has added partners Gary Caris and Sal LaViña in recent months. Barnes & Thornburg also recently launched a new office in San Diego, where Troy Zander is the partner in charge.

“The additions we’ve made in Southern California are not only integral to the growth of our firm, but they are also prospering on our platform and, most importantly, are finding new ways to efficiently solve client problems,” said David Allen, managing partner of the firm’s Los Angeles office.

The release continues:

About the Attorneys

Dawn Collins has 20 years of experience as a civil litigator, but she places an emphasis on litigation prevention measures for her corporate clients, including conducting workplace investigations, ensuring best practices related to discharge, discipline, leaves and reductions, drafting employment agreements, and complying with wage and hour laws. She is often called upon to defend clients in high-stakes wage and hour class actions alleging violations of federal and California wage and hour laws.

Collins earned her J.D. from the University of California, Los Angeles, School of Law and her B.S. from the University of Pennsylvania.

Tae Kim represents corporate clients in high-stakes wage and hour class and representative actions, and single plaintiff discrimination harassment claims. Her wage and hour work includes the defense of disputes involving misclassification, commissions, meal and rest breaks, off-the-clock work and piece rate compensation as well as advising clients on wage and hour compliance and conducting audits. She also regularly advises clients on best practices related to terminations, leaves of absence and accommodations, as well as conducting workplace investigations.

Kim earned her J.D. from Loyola Law School, Los Angeles, and her B.A. from University of California, Los Angeles.




Former Jones Day Attorney Tapped For Position at the EEOC

The Trump administration has nominated Sharon Fast Gustafson to fill the vacant position of general counsel of the Equal Employment Opportunity Commission.

Above the Law reports that Gustafson spent four years at Jones Day before becoming a solo practitioner in 1995.

The GC’s position at the EEOC has been vacant since December of 2016.

“The top litigator position has broad discretion in deciding what Title VII cases to pursue, and, as such, will take the lead in determining the Trump administration’s stance on such hot button issues as sexual harassment and the gender pay gap,” writes Above the Law editor Kathryn Rubino.

Read the Above the Law article.



Trump Labor Board Scrambles to Avoid Pro-Worker Ruling, Lawyers Claim

Bloomberg is reporting that the National Labor Relations Board is ignoring its own guidelines and rushing to settle a major workplace action involving McDonald’s Corp., lawyers for employees involved in the litigation alleged.

Reporter Josh Eidelson writes that, if the workers win at trial, the case could have a profound effect on how major corporations are held liable for workplace wrongdoing.

A trial on the matter was set to resume this week.

“Faced with a potential landmark decision in favor of franchise employees, NLRB lawyers have secured a deal with McDonald’s Corp. and are now racing to settle employee claims by Monday, attorneys for the workers contend,” Eidelson writes. “In doing so, the lawyers claim NLRB officials are wrongfully circumventing them and going straight to the workers with take-it-or-leave-it offers.”

Read the Bloomberg article.





Workplace Monitoring Gets Personal, and Employees Fear It’s Too Close for Comfort. They’re Right.

Companies are increasingly tapping into new technology designed to keep a close eye on employees. This monitoring goes beyond traditional security cameras to include portable devices worn by workers, reports the Chicago Tribune.

Reporter Robert Reed writes that some employers are getting really high-tech with following their workers, such as using time clocks that can an employee’s fingerprint, retina or iris.

“Some workers are ticked off about it and fighting back. Up to 30 class-action lawsuits were filed by late 2017 accusing companies of violating the Illinois Biometric Information Privacy Act, which governs how such sensitive information is collected and used,” according to Reed.

Reed also raises the possibility that employers could even provide Fitbits or another portable health monitor as part of a corporate wellness program. “Can the personal data gleaned be used to alter, or deny, access to employer-provided insurance plans?,” he asks.

Read the Tribune article.




Collection of Employee Biometric Data: Privacy and Compliance Issues

Businesses are increasingly using biometric data (i.e., measurements of a person’s physical being) for a variety of identification purposes, such as to provide security for the financial transactions of their customers and for the tracking of work hours of their employees, points out the Fisher Phillips Employment Privacy Blog.

Partner Jeffrey Dretler discusses the privacy concerns for employees and the compliance issues for employers related to collection of biometric data.

He suggests that employers should establish safe practices and be on the lookout for new developments. And he concludes with five suggested steps employers should take to be in compliance.

Read the article.




Whistleblower Says Walmart, Eyeing Amazon, Cheated on E-Commerce

Walmart Inc. was sued on Thursday by a former executive who accused the world’s largest retailer of issuing misleading e-commerce results, amid growing pressure from Amazon.com Inc,, and firing him for complaining about it, reports Reuters.

In his complaint, former director of business development Tri Huynh alleges various wrongdoing, including the mislabeling of products, enabling Walmart to charge excessive sales commissions, and failure to properly process customer returns, enabling it to boost results, according to the report by Jonathan Stempel and Nandita Bose.

“Wal-Mart cut corners and cheated in a race to expand and gain market-share,” having been “desperate to gain the ground it had long lost to Amazon,” Huynh said in his complaint filed in U.S. District Court in San Francisco.

Walmart called Huynh a disgruntled former employee who was let go during a restructuring.

Read the Reuters article.





Uber’s Former Top Lawyer Sought a $100 Million Exit Package, Report Says

Image by Elliott Brown

Before the top corporate lawyer at Uber Technologies departed last year, she sought a $100 million exit package, reports Business Insider.

Salle Yoo joined Uber as its first general counsel in 2012 and was later promoted to be its chief legal officer, leading the company’s 290-person legal department during a tumultuous time. She resigned in September 2017.

Reporter Julie Bort explains: “Yoo thought [the exit package request] only fair because she had seen male executives ask for and get huge exit packages, and she had spent her career at Uber encouraging women to lean in. So she took her own advice, opened her negotiations with [former CEO Travis] Kalanick by shooting high, and held her breath.”

She and Kalanick negotiated a compromise: less than two-thirds her original demand, but with a kicker: If Uber gave a better severance deal to another employee, it had to match the difference for Yoo.

Read the Business Insider article.



Morgan Lewis Scolded for Possible Conflict in Hotel Wage Case

A U.S. district judge in California concluded that Morgan Lewis “plainly violated” California attorney professional conduct rules by representing “both sides of the case” in a hotel workers’ class action suit, Bloomberg Law reports.

Sheraton workers in San Francisco won class action status for their claim that their employer created a culture that encouraged staff to work through breaks without pay.

Reporter Jon Steingart writes that Judge William Alsup criticized the way lawyers from Morgan, Lewis & Bockius LLP obtained statements from three former employees that were used to argue against certification of the class. The same lawyers also represented the former workers in depositions conducted later.

A Morgan Lewis lawyer responded to a show cause order with an apology and a pledge that the firm wouldn’t repeat the conduct in any court.

Read the Bloomberg Law article.




Ten-Week Telecommute Reasonable for In-House Counsel, Sixth Circuit Holds

PregnantAffirming a jury verdict, the U.S. Court of Appeals for the Sixth Circuit found that ten weeks of telecommuting was a reasonable accommodation for a pregnant lawyer put on bed rest, reports Manatt Phelps & Phillips LLP.

The Manatt article explains:

Due to complications from pregnancy, in-house counsel Andrea Mosby-Meachem was put on bed rest. Pursuant to the Americans with Disabilities Act (ADA), she requested to work from home during that period. Memphis Light, Gas & Water denied the request, taking the position that in-person attendance was an essential function of her job. Mosby-Meachem sued, and a jury awarded her $92,000 in compensatory damages on her claim of disability discrimination. The employer appealed, but the federal appellate panel upheld the verdict. The plaintiff presented sufficient evidence for a reasonable jury to conclude that in-person attendance was not an essential function of her job for the ten-week period she requested to work from home, the court said.

Read the article.