Employers May Compel Arbitration Even Where Employee Failed to Sign Arbitration Agreement

A federal judge in Pennsylvania has ruled that the employer of a company was bound by an arbitration agreement with her employer even though she did not sign or return the agreement, according to a post on the website of Ballard Spahr.

The court found that the former employee was bound by language in the policy, which had put the plaintiff on notice:

If you do not opt out of this Policy within this 14-day period, both you and Compassus will be required to arbitrate all claims and disputes covered by this Policy in accordance with its terms.

Her acceptance of its terms could be inferred from her failure to opt-out within 14 days outlined in the policy and by her continued employment, the court ruled.

Read the article.



Morrison & Foerster Trims Some Female Attorneys’ Claims, For Now

Bloomberg Law reports that two women among a group of female associates accusing Morrison & Foerster LLP of pregnancy discrimination must replead some or all of their claims, a federal judge ruled.

One of the plaintiffs was too late with her claims under federal and District of Columbia law, the U.S. District Court for the Northern District of California said. And another plaintiff’s allegations were insufficient to support her argument that a release she signed was unduly influenced by the dire economic situation caused by her termination, the court said.

The women are part of a proposed nationwide class action filed in April 2018.

Read the Bloomberg Law article.



A GC Says She Was Told to Serve the Cake. She Complained, Then She Was Fired.

The former general counsel of ExlService Holdings says in a lawsuit that she suffered from gender stereotyping in her job, illustrated by an order from the CEO that she serve cake to the company’s junior male employees at a company anniversary.

The Washington Post reports on the complaint, which says the CEO at that anniversary event singled out then-GC Nancy Saltzman as one of the “ladies” in the room, despite the fact that she was the most senior female executive at the company. The complaint says Saltzman was humiliated.

The complaint says the event was an example of gender stereotyping. The Post‘s Deanna Paul writes: “According to the complaint, [the CEO] ‘took steps to exclude her from career and advancement opportunities, subjected her to enhanced scrutiny, and micromanaged her’ in a manner her male equals were not.”

She complained to other executives about stereotyping, but she later was fired.

Read the Washington Post article.




Big Law Pay Equity Gets Closer Scrutiny by Small Labor Agency

A small Labor Department agency with sizable oversight is looking closely at Big Law firms like Morgan Lewis & Bockius, Fox Rothschild, and Paul Hastings, as part of its mission to address compensation and promotion practices in the legal industry, reports Bloomberg Law.

“The DOL’s Office of Federal Contract Compliance Programs recently cautioned law firms that do work with the federal government that it will be closely analyzing how their employment practices affect diversity,” reports Bloomberg’s Paige Smith. “At least 10 firms will be audited by the OFCCP in 2019, and the agency’s director Craig Leen said investigators may target the legal industry in particular in future probes.”

Some big law firms are facing a wave of litigation over alleged discrimination against women and people of color.

Read the Bloomberg Law article.



Luxury Goods In-House Lawyer Sues Employer for Alleged Harassment

The vice president of legal affairs & litigation counsel of Moet Hennessy Louis Vuitton Inc. sued her employer, claiming executives shrugged off her complaints of sexual harassment as “a byproduct of being an attractive woman who works at a company with a French culture.”

The New York Post reports that plaintiff Andowah Newton claims her harasser — a “senior level management employee” whom she doesn’t name — frequently ogled her and once said, “You are so pretty. And that beautiful smile, I just can’t get enough of it.” He also made unwanted physical contact with her, she said.

The company’s response to her initial complaints is laughable, court documents say, because “none of the individual actors in this matter is, in fact, French.”

Read the New York Post article.



When Union Contracts And Overtime Law Conflict: Court Provides Balance For Employers

The 9th Circuit recently handed down an opinion that helps provide guidance to those employers trying to comply with collective bargaining agreements while simultaneously being challenged to apply potentially inconsistent definitions in California’s overtime law, writes Rebecca King for a Fisher & Phillips website post.

The case involved an offshore oil worker whose contract called for 12-hour shifts for a week and required him to be on the off platform between shifts. He wanted to be paid for the hours he was required to be on site.

Read the article.



Female Attorneys Sue Biglaw Firm Over ‘Fraternity’ Atmosphere, Allege Bias Against Women

Cleveland-based BigLaw firm Jones Day, which has struggled with its reputation in the past as a diverse and inclusive workplace, is being sued for gender, pregnancy and maternity discrimination to the tune of more than $200 million, reports Crain’s Cleveland Business.

“The firm’s admitted practice of pay confidentiality, combined with the “nearly absolute control” exercised by Jones Day’s Managing Partner Steve Brogan, has resulted in an opaque review system that allows bias and retaliation to run unchecked, Nilab Tolton, Andrea Mazingo, and four Jane Does say in their April 3 complaint,” writes Crain’s Jeremy Nobile.

“Jones Days’s fraternity culture presents female attorneys at Jones Day with an unpalatable choice: participate in a culture that is at best inhospitable to women and at worst openly misogynistic or forego any hope of success at the Firm,” the lawsuit states.

Read the Crain’s article.



Invalidating a Non-Compete Agreement

Employment contractThere are circumstances that allow a departing employee to challenge the legitimacy of a non-compete agreement, even if this type of contract meets all the legal requirements, writes Romy Jurado of Jurado & Farshchian.

In her article, she discusses two questions that arise when an employee challenges a non-compete: Should an employee actually challenge the agreement? And: How exactly does an employee challenge it?

She also discusses the three basic approaches an employee might take to challenge the agreement: Ignoring it; negotiating with the employer; and filing a declaratory judgment action.

Read the article.



Key Terms for Provider Contracts

Kim Stanger, writing for Holland & Hart, offers a brief summary of some terms or issues that should be considered in provider agreements.

The article discusses such topics as regulatory compliance, written agreements, parties, the nature of relationships, services, schedules, location, independence, intellectual property, use of information, outside activities, qualifications, representations and warranties, performance standards, medical records, employer obligations, compensation, bonuses, benefits, exempt status, referrals, assignment of fees, liability insurance, and more.

Read the article.



Employers Face Hurdles in Enforcing Non-Competes Against Lower-Wage Workers

Employers requiring lower-wage employees to sign and abide by non-competition and non-solicitation of clients provisions may want to find another mechanism to protect business goodwill and confidential information, advises Rachel Powitzky Steely in Foley & Lardner’s Labor & Employment Law Perspectives.

Courts across the country are refusing to enforce non-competes against lower-wage employees and now states are taking action to preclude these agreements, she explains.

Steely offers some advice on how companies can achieve their non-compete goals through alternative methods.

Read the article.



What Not to Do: Construction Contractor Charged With Lying to OSHA

A post in the Seyfarth Shaw Workplace Safety and Environmental Law Alert Blog discusses the case of a construction contractor facing a perjury charge after he allegedly testified that he did not twice order employees to work on a roof. They fell through the roof both times.

During the investigation, OSHA discovered text messages indicating that the contractor had indeed issued the orders.

The case provides two important lessons, according to the authors of the post: Don’t lie under oath, especially when there exists discoverable evidence to the contrary, and be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

The contractor faces a potential penalty of five years in a prison and a $250,000 fine, if convicted.

Read the article.



Are Contractor Agreements Not Worth the Paper They’re Printed On?

A recent ruling in an Alabama federal court illustrates how having a valid independent contractor agreement is not necessarily an impenetrable magic shield automatically rendering misclassification claims null and void, according to Fisher Phillips’ Gig Employer Blog.

Partner Richard Meneghello describes the case in which a company’s former worker claimed that he faced discrimination on account of his race, gender, and age during his three months on the job. The company, however, countered that the plaintiff had been an independent contractor and did not have legal standing to bring employment discrimination claims under Title VII or the ADEA.

The company also citied an independent contractor agreement, confirming that the worker was a contractor and had no employment rights. The plaintiff cited work requirements that would have been appropriate for an employee.

“When the two were compared—the world contained in the contractor agreement against the reality as alleged by Nemo’s complaint and evidence—the court found inconsistencies that led it to rule in [the plaintiff’s] favor,” Meneghello writes.

Read the article.



Where Did We Go Wrong? Planning for Issues in Employment Agreements

When drafting executive agreements, it is easy to focus almost exclusively on benefits and wages, the popular areas, without properly addressing some of the legal concerns that have grown over the last several years, warns Jo Ellen Whitney in a post on the Davis Brown Employment and Labor Blog.

In the article, she cautions against using outdated templates for contracts. She points out that “a template for C Suite positions is not the same as the template or agreements that you might use for front line employees.

She also discusses determining benefits, termination, disability, bonuses, renewal, and restrictive covenants.

Read the article.



Court Agrees General Counsel Was Fired for Whistle-Blowing; Upholds $8 Million Verdict

A federal appeals court upheld about $8 million in damages Tuesday to the former general counsel of a Bay Area laboratory who was fired after telling company officials about possible bribery and records falsification by the lab’s employees in China, according to the San Francisco Chronicle.

Bio-Rad Laboratories fired general counsel Sanford Wadler in 2013, claiming poor performance. The company also claimed it found no evidence of wrongdoing by its employees.

The Ninth U.S. Circuit Court of Appeals on Tuesday found evidence to support the 2017 verdict by a federal court jury in San Francisco that Wadler had acted as a whistle-blower and was dismissed in retaliation for reporting conduct that he “reasonably believed” to be illegal, according to the Chronicle‘s Bob Egelko.

Read the SF Chronicle article.



Turbulence on Breach of Employment Agreement, Trade Secret Misappropriation

Addressing a bench trial decision concerning a former employee’s retention of confidential information and violation of a non-compete provision, the U.S. Court of Appeals for the Fourth Circuit found no abandonment of the employer’s breach claims, and concluded that while certain flowcharts contained protectable trade secrets, there was no breach of the non-compete.

In an article for McDermott Will & Emery, posted at JDSupra.com, Mary Hallerman describes the case of an employee who was subject to an employment agreement requiring him to return to his employer all work documents upon leaving the company. The former employee breached his agreement by retaining these documents after he left the company and misappropriated trade secrets, the plaintiff company alleged.

The Fourth Circuit found that the ex-employee had not breached the non-compete clause because his role at his new employer was not sufficiently similar to constitute a breach.

Read the article.




Ex-Winston Lawyer Can’t Be Forced to Arbitrate Job Claims

Bloomberg Law is reporting that a former Winston & Strawn LLP intellectual property attorney can litigate—and can’t be forced to arbitrate—her pay, bias, and retaliation claims.

The California Supreme Court declined to review an appellate ruling that the arbitration agreement Constance Ramos signed as an income partner contained unfair provisions that couldn’t be separated from the rest of the agreement, according to Bloomberg’s Joyce Cutler.

Under those provisions, Ramos would have been required to pay half the costs, and she would be subject to secrecy clauses that would have prevented her from interviewing potential witnesses.

Read the Bloomberg Law article.



‘Breaking Contracts has Consequences’ – Third Circuit Backs Employer with Restrictive Covenant Agreements

A recent decision from the Third Circuit addresses a grant of preliminary injunction against an employee who signed multiple agreements with restrictive covenants, and violated them immediately upon beginning employment with a direct competitor, reports Genova Burns.

Authors Dina M. Mastellone and James W. Sukharev discuss the case of Heartland Payment Sys., LLC v. Volrath.

In that case, a former employee of Heartland breached a manager agreement by sending confidential information to his former employer’s competitors.

Read the article.



Overbroad Geographic Restriction Dooms Covenant Not to Compete

A recent Texas court decision highlights the requirement that any covenants not to compete, including geographic restrictions, must be reasonable to be enforceable, according to a report on the Ogletree Deakins website.

Lawrence D. Smith writes about Fomine v. Barrett, which involved a non-compete agreement for a case manager in a chiropractic clinic. The agreement prohibited the employee from being involved in any competitive business within a 500-mile radius of the employer’s clinic.

The Houston appellate court found the 500-mile radius to be “significantly broader than the geographic scope” of the former employee’s actual employment activities on behalf of the clinic. It is therefore “broader than is reasonably necessary” to protect the employer’s business interests.

Read the article.



Fired Hershey IP Attorney Sues Alleging Race, Age, Sex Bias

Kurt Ehresman, 52-year-old former senior counsel for global intellectual property at Hershey Co., has sued his ex-employer, claiming he was replaced with a younger, black, female lawyer in a case of race, age and sex bias.

Ehresman, who is white, filed suit Feb. 6 with the U.S. District Court for the Western District of Pennsylvania, according to a Bloomberg Law report.

Bloomberg’s Patrick Dorrian writes:

“The move came roughly five years after Hershey recruited him to be ‘the first licensed practice attorney’ in the candymaker’s more than 100-year history, Ehresman charges in the complaint. And it required him to give up his ‘entire portfolio of clients’ and private practice as a condition of joining Hershey, Ehresman says.”

Read the Bloomberg Law article.




Job-Seeking Lawyer Loses Age Discrimination Case Based on Experience Cap

Dale Kleber was 58 years old when he applied for a senior staff attorney position with CareFusion Corporation. On paper, his 25 years of legal experience, including serving as general counsel for a large corporation, showed he was qualified for the job.

But the position sought someone with three to seven years of legal experience. Kleber didn’t receive an invitation for an interview, but a 29-year-old lawyer was hired instead. Kleber sued under the ADEA, arguing that the seven-year experience cap on the position discriminates against older workers by automatically disqualifying them for the job.

Courthouse News Service reports that Kleber’s age discrimination suit failed when the en banc Seventh Circuit ruled Wednesday that the protections of the Age Discrimination in Employment Act apply only to current employees, not to job applicants.

Read the Courthouse News article.