General counsels and chief legal officers at more than 170 companies have signed an open letter telling law firms they expect their lawyers to “reflect the diversity of the legal community and the companies and the customers we serve,” reports the ABA Journal.

“The letter was drafted after an online photo of 12 new partners at Paul, Weiss, Rifkind, Wharton & Garrison drew attention because it appeared to show 11 white men and just one woman,” writes the Journal‘s Debra Cassens Weiss. “The firm later said the partnership class also includes one Latino and one LGBTQ partner.”

A New York Times article on the subject said that more than 20 women and people of color described obstacles to achieving diversity at Paul, Weiss, with many saying that opportunities to be groomed for partner are harder to come by for women and minorities.

Read the Journal article.

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.

Employment agreements between publicly-traded issuers and their executive officers often contain severance pay provisions that are heavily negotiated at the time of entering into the agreements, explains a post on the website of Hunton Andrews Kurth.

The post by Anthony J. Eppert considers whether the amount of contractually-provided severance pay could, over the employment term, be reduced proportionate to the increase in the executive’s wealth accumulation over the same time period (i.e., an inversely proportional relationship between the amount of severance pay and the amount of wealth accumulation by the executive over the employment term).

Read the article.

Image by NY Photographic

Unless an employment contract specifies the forum for arbitration and the process by which the arbitration will be conducted, a court may find that the parties have not reached an agreement to arbitrate, warns a post on the website of Porzio, Bromberg & Newman.

The authors discuss a New Jersey case that illustrates the need to use care in drafting.

An appellate court found that the arbitration clause in the contract did not specify what forum would substitute in place of the jury trial.

Read the article.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The 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.

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.

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.