Franchisors need to review their franchise agreements and take immediate action in response to the recent onslaught of legal action over “naked no-poaching” provisions in franchise agreements, according to a post in Franchise Law Update on the website of Fox Rothschild.

“In a typical franchise agreement, a franchisor will prohibit a franchisee from poaching its or its other franchisees’ employees during the term of the franchise agreement and for a period of time after the franchise agreement ends,” the authors explain.

In April 2018, the U.S. Department of Justice initiated a criminal complaint against a number of companies respecting naked no-poaching agreements. While the case settled with only civil penalties imposed, the DOJ expressly stated that it was reserving the criminal question and planned to “zealously enforce” the law.

Read the article.

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Employers should review and revise their employee non-compete/non-solicitation agreements to decrease the risk that a court holds such agreements to be unenforceable, advises J. Lane Crowder in a web post on the website of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.

“In 2018, there is a growing trend to invalidate non-compete and non-solicitation agreements. State and federal courts, as well as state legislatures, are pushing for enhanced scrutiny of the ‘reasonableness’ of these agreements,” she writes.

Companies should consider the reasonableness of the restrictions and consider whether the restrictions can be tied to legitimate protectable business interests.

Read the article.

Following the abrupt halftime retirement of Buffalo Bills defensive back Vontae Davis, his former agent has confirmed that the decision voids nearly all the guarantees in Davis’ contract. He will only be paid for two games because he was signed in the offseason and his contract only guaranteed the full amount if he played all 16 games.

But Dallas labor and employment attorney Rogge Dunn of Rogge Dunn Group, PC, says that the NFL veteran legally had the freedom to make the move.

“The law does not require a professional athlete or executive to continue working despite an employment contract,” says Dunn. “Surprising as it seems, an NFL football player, a CEO or a partner in a partnership can generally walk off the job at any time. It’s another example of one of the few big hammers that professional athletes have. As we’ve seen many times, players skip organized team activities or hold out during camp – even when they are under contract and facing the financial consequences.”

Carothers DiSante & Freudenberger LLP will present a webinar discussing new developments in California wage and hour laws that provoke class action litigation and will offer ways to avoid, manage and resolve these issues to help minimize the risk of a costly wage and hour class action lawsuit.

The complimentary event will be Sept. 26, 2018, at 10 a.m. PDT.

Employing people in California means dealing with California’s unique and complex wage and hour regulations, the firm points out on its website. California employers are increasingly finding themselves having to defend against costly wage and hour class actions and PAGA lawsuits. These lawsuits frequently cost large sums of money to resolve, either through litigation or settlement.

This webinar will review:

• New developments in California wage and hour laws that have been driving class action litigation
• What you should know about the class action process if you are facing a putative wage and hour class action and/or a PAGA claim
• How to avoid potential class action and PAGA claims and strategies to minimize potential damages
• Drafting arbitration agreements with class action waivers post Epic Systems, Inc.

Register for the webinar.

Image by Patrick

USA Today reports that a class-action lawsuit was filed Monday against IBM on behalf of three former employees alleging age discrimination.

Reporter Swapna Venugopal Ramaswamy explains: “The lawsuit alleges that the plaintiffs are among thousands of IBM employees to be laid off recently as the result of a shift in IBM’s focus to recruit millennials ‘in order to make the face of IBM younger, while at the same time pushing out older employees.'”

“IBM has discriminated, and continues to discriminate, against its older workers, both by laying them off disproportionately to younger workers and by not hiring them for open positions,” the lawsuit alleges.

The three name plaintiffs are 55, 59 and 67, and have worked for IBM for periods ranging from 15 to 34 years.

Read the USA Today article.

A former partner at Manatt has filed a charge with the Equal Employment Opportunity Commission and California’s Department of Fair Employment and Housing, on behalf of herself and those similarly situated alleging gender discrimination and retaliation at the Biglaw firm, reports Above the Law.

Rebecca Torrey’s filing details allegations of a “boys’ club” an environment that weighs “heavily in the favor of male partners.”

Torrey also alleges the compensation structure for partners is dictated by a group hand-selected by outgoing firm managing partner, William Quicksilver, and who rarely challenge his recommendations.

Read the Above the Law article.

The battle between the White House and Omarosa Manigault over the scope of her disclosures brings the issue of Non-Disclosure Agreements (NDA), and their efficacy and enforceability to the forefront, points out a blog post for Obermayer Rebmann Maxwell & Hippel.

“Employers frequently seek to use NDAs as a sword once the employment relationship is broken or a termination takes place,” writes Dove A.E. Burns. “However, employers often require such agreements in order to broadly limit disclosure far beyond what is legally enforceable. Reaching in this manner can lead to legal liability, nullification and an ethical quagmire.”

Her article discusses the law regarding NDAs for government employees and for non=government employees.

Read the article.

Littler Mendelson announced that Reliance, a Belgian labor and employment law boutique with 20 lawyers, is joining its global platform. The expansion brings Littler’s presence in Europe to six countries, while adding an outpost in Brussels, home of the European Union headquarters.

The firm said the move is part of Littler’s global expansion strategy that includes combining with the top firms focused on labor and employment law in significant international markets, which has led to a footprint of more than 1,500 attorneys across 82 offices and 19 countries. In addition to its office in Brussels, Reliance has an office in Mechelen.

“Given Belgium’s significant role in the European and global economies, it was important for Littler to find a well-regarded firm like Reliance, which represents top international clients and is recognized for its strength in all aspects of labor and employment law,” said Tom Bender and Jeremy Roth, co-managing directors of Littler, in a joint statement. “Reliance’s team can work seamlessly in Dutch, French and English – a unique attribute among Belgian firms. That ability, combined with the high caliber of Reliance’s attorneys, makes the firm a strong addition to our global platform and a logical next step in our expansion strategy.”

In a release, the firm said Reliance was founded in 2009 by partners Edward Carlier and Koen De Bisschop, who were later joined by Anne-Valérie Michaux and Erwin Crabeels. The firm works on labor and employment matters, including the defense of claims, collective bargaining and advice on works council matters, representation before government agencies, audits and training. The team also advises employers on such issues as compliance with the EU’s General Data Protection Regulation and other privacy and data security laws, global mobility, restructurings, hiring and termination, workplace discrimination and harassment, and non-compete agreements.

The release continues:

“It’s clear that Littler has an impressive expansion strategy, and we’re excited to join its growing global platform, particularly in Europe,” Carlier said. “Littler’s singular focus on labor and employment law and its reputation as an innovative and global firm is the perfect fit for Reliance. The firm’s presence in key global markets throughout Europe and its vast resources will complement our practice and provide our clients with additional legal offerings in one of the most important business and governmental centers.”

Carlier focuses his practice in all aspects of human resources law, including corporate restructurings. He counsels employers on the design and implementation of effective redundancy plans, and he regularly handles human resources-related conflicts and litigation. De Bisschop advises companies on international mobility, the design of competitive wage structures and data protection, while also counseling executives and directors in relation to their employment or management contracts.

“An office in Belgium – in combination with our existing practices in France, Germany, Italy, the Netherlands and the United Kingdom – is an important addition,” said Stephan Swinkels, a Littler shareholder who helps lead the development and integration of the firm’s global practice. “In addition to its strong reputation around Europe, Reliance’s even split of Dutch and French-speaking attorneys is a significant advantage and aligns well with our robust teams in the Netherlands and France.”

Peter Susser, Littler’s Global Practice Leader and chair of the firm’s International Employment Law practice, added that, “We’re excited to join with this talented group of 20 lawyers who have a well-earned reputation for counseling employers in Brussels and across Europe. Reliance has a great track record, and our clients from across the region and around the world should start seeing immediate value as a result of this combination.”

Image by Ben Sutherland

JPMorgan Chase has reached a settlement with financial advisers who say they were treated poorly because they’re black, reports Bloomberg News via the Chicago Tribune.

Reporter Max Abelson explains: “Six current and former employees at the largest U.S. bank filed what they asked to be a class action, alleging discrimination that’s ‘uniform and national in scope.’ Instead of fighting it in court, the bank agreed to pay $19.5 million to the members of the class, according to Friday filings. It will also put $4.5 million into a fund that will back recruitment, bias training, a review of branch assignments and a coaching program for black advisers.”

In the settlement, the bank denied any “wrongdoing of any kind whatsoever.”

Read the Bloomberg article.

Holland & Hart will present a complimentary half-day seminar on the latest developments in labor and employment law.

The in-person event will be Thursday, Sept. 13, 2018, beginning with registration and breakfast at 8 a.m. The address is 555 17th Street, Suite 3200, Denver, CO 80202.

Highlights of the program include:

Significant L&E Updates:
– Class action waivers
– Immigration
– NLRB reversals
– Colorado developments

Harassment and Discrimination: #MeToo and More
– Prevention: policies and training
– Investigations
– Working with/against the EEOC and CCRD
– Mediation, arbitration, or litigation?
– Should you settle?

Managing Leaves, Accommodations, and Terminations
– Intersection of FMLA and ADA
– Handling indefinite leaves and work restrictions
– Pregnancy accommodations under the new Colorado law
– Discharging employees who’ve exercised their rights
– Documenting your actions to aid your defense

Agenda: THURSDAY, SEPTEMBER 13, 2018
Registration and Breakfast | 8:00 – 8:30 AM
Presentations | 8:30 – 12:00 PM

Speakers:
Steve Gutierrez
sgutierrez@hollandhart.com

Emily Hobbs-Wright
ehobbswright@hollandhart.com

John Husband
jhusband@hollandhart.com

Jeremy Merkelson
jbmerkelson@hollandhart.com

Roger Tsai
rytsai@hollandhart.com

Mark Wiletsky
mbwiletsky@hollandhart.com

Location: Holland & Hart
555 17th Street
Suite 3200
Denver, CO 80202

CLE and SHRM credit pending

Register for the seminar.

Litigation pitting Morgan Stanley against one of its former sales assistants could have implications for its employees and those of other wirehouses, warns Financial Advisor IQ.

Miriam Rozen explains:

“That will be particularly true if the wirehouse employees receive — but don’t always read — emails sent by their employers to set employment conditions.

“The wirehouse contends that if they’ve sent you an emailed contract, you’ve essentially agreed to the contract just by continuing to work.”

A lower court had ruled that an employment-arbitration agreement between Morgan Stanley and the employee was enforceable, even though the former sales assistant claimed she never read a 2015 email that the wirehouse sent notifying her she would be entered into such a contract.

Read the article.

When operating its business, an employer should consider whether and when to implement employment agreements with certain employees, explains Judy Yi in a post for Polsinelli.

When considering whether an employee should execute an employment agreement, employers should consider five factors.

Yi discusses those five factors, which include complex or specialized compensation, restrictive covenants, employment for a definite term, change in control, and specific post-termination provisions.

Read the article.

Bloomberg reports that a vote on unionization by 2,700 United Airlines in-flight catering workers can proceed over the company’s objections, the general counsel of the National Mediation Board ruled.

The hospitality union Unite Here had filed a petition, with support from three-quarters of United’s kitchen workforce, seeking a vote, but the airline filed a complaint alleging fraud and misrepresentation by the union before the petition was filed, contending that Unite Here organizers had shown up at workers’ homes claiming to be representatives of the airline conducting a poll, reports Josh Eidelson.

Eidelson reports that “NMB General Counsel Mary Johnson wrote that after interviewing employees, the agency’s investigators had determined that ‘there is no evidence that employees did not understand that Unite Here was a union and was not a representative of United.'”

Read the Bloomberg article.

Bloomberg Law is reporting that a law partner who sued her firm, Proskauer Rose, for $50 million over allegations of gender discrimination and unequal pay has settled the case.

Details of the settlement between Connie Bertram and the firm weren’t disclosed.

Bertram, who headed the firm’s labor practice in Washington, sued last year, alleging she was underpaid in relation to her male colleagues and that she was excluded from projects after complaining about it, writes Stephanie Russell-Kraft.

Bertram has remained at the firm since filing the lawsuit in May 2017.

Read the Bloomberg Law article.

NAVEX Global has published the 2018 Ethics & Compliance Training Benchmark Report to show how companies are using their training program to change employee behavior, positively impact corporate culture and decrease legal exposure.

The report, which can be downloaded at no charge, includes guidance on how to use the most important compliance training benchmarks when measuring program effectiveness.

“Your employees are your biggest asset—and your biggest risk. Poor decisions made by employees or lack of awareness around the law can expose your organization to workplace harassment fines, wage & hour violations, and international bribery and corruption charges—to name just a few,” NAVEX says on its website.

Download the report.

Preliminary results from an ABA survey of 1,300 respondents from the nation’s 350 largest firms underscored the disparate challenges, stereotypes and burdens women lawyers faced compared to their male colleagues, even at the senior level, reports the ABA Journal.

One of the findings showed that 81 percent of women say they were mistaken for a lower-level employee, but this didn’t happen to men.

And 60 percent of women said they’d left firms because of caretaking commitments, compared to 46 percent of men.

 Read the ABA Journal article.

The practice of “no-poach” agreements in the fast food industry is under scrutiny with a group of Democratic state attorneys-general announcing that they are seeking information on them from eight fast food chains, reports the Wharton School of the University of Pennsylvania.

The chains include Arby’s, Burger King, Dunkin’ Donuts, Wendy’s and Panera Bread.

The legality of non-poaching agreements is suspect, and franchisors take on conveniently conflicting positions when a franchisee is treated as part of their company, said Wharton management professor Peter Cappelli.

Read the article or listen to the podcast.

The overall employment rate for law school graduates in the class of 2017 rose more than one full percentage point, to 88.6 percent of graduates for whom employment status was know, according to the National Association for Law Placement.

THE NALP reported:

For the third year in a row the actual number of jobs obtained was flat or went down in virtually every sector except the largest law firms of more than 500 lawyers. Members of this class secured just 16,390 jobs in law firms of any size, down by more than 4,000 since the number of those jobs peaked for the Class of 2007. And while the largest law firms of more than 500 lawyers hired more law school graduates than at any time since the recession, the number of entry-level jobs at those firms is still off by nearly 600 positions compared with the peak hiring measured with the Class of 2008.

The study found that the national median salary for the class of 2017 was $70,000.

Read the NALP report.

Big law firms tend to be particular about which lawyers they hire, according to a report from U.S. News & World Report.

Reporter Ilana Kowarski writes:

Thomas J. Simeone, a managing partner at the personal injury law firm Simeone & Miller in the District of Columbia, who spent many years working at big law firms, says these firms typically prefer to hire alumni of elite law schools that place in the top 15 in national law school rankings. Some particularly exclusive big law firms primarily employ graduates of J.D. programs that place in the top five or top 10, and in general, grads from higher-ranked J.D. programs have better chances of finding a job at a big law firm, Simeone says.

Kowarski writes that graduates of lower-ranked law schools “often need to either achieve extraordinary law school grades or gain several years of impressive legal work experience to convince a big law firm to hire them.”

Read the U.S. News article.

Bruce “Chip” Morris of Kane Russell Coleman Logan has posted a new podcast in the firm’s Energy Law Today blog about the top 10 mistakes employers can make—in the oilfield, and beyond—when drafting non-compete agreements.

Morris, a director in the firm’s Houston office, is the head of the firm’s Intellectual Property Group.

The 10 mistakes involve such areas as overbroad restrictions, choice of forum clauses, agreements that aren’t appropriate for all employees, and agreements that haven’t kept up with technology.

Listen to the podcast.