The U.S. Supreme Court, winding down its nine-month term, will issue rulings this week in its few remaining cases including a major one on the legality of President Donald Trump’s ban on people from five Muslim-majority nations entering the country, reports Reuters.

“The nine justices are due to decide other politically sensitive cases on whether non-union workers have to pay fees to unions representing certain public-sector workers such as police and teachers, and the legality of California regulations on clinics that steer women with unplanned pregnancies away from abortion,” write Lawrence Hurley and Andrew Chung.

On the subject of collecting fees for union from non-members, the court’s conservatives indicated opposition during arguments on Feb. 26 to so-called agency fees that some states require non-members to pay to public-sector unions.

Read the Reuters article.

A recent decision from the Connecticut Superior Court illustrates the limits to enforcing non-compete agreements, writes Michael LaVelle for Pullman & Comley’s Working Together blog.

LaVelle explains the case’s background: “Typical of non-compete enforcement situations, the plaintiff company learned that an executive employee who had just resigned had been hired by a key competitor. The former employee had signed a ‘Confidential Information, Non-Compete and Inventions Assignment and Assumption Agreement’ at the start of her employment. The company sought to enforce the agreement by obtaining an injunction to prevent the former employee from working for the competitor.”

The court found that by preventing the individual from performing any work or services, whether as an employee, consultant or independent contractor, for any competitor, the agreement went beyond the limits of reasonableness.

Read the article.

Above the Law has updated its extensive list of law firms that have matched Milbank, Tweed, Hadley & McCloy’s $190,000 salary scale for new associates, with almost four dozen large firms represented.

The most-recent additions to the list, added on Thursday, include Dechert, Orrick, Akin Gump and Sherman & Sterling, each with pay scales of $190,000 for first year associates and $340,000 for senior year associates.

Those four also offer $5,000 bonuses to first years, and $25,000 to their more-senior associates.

Read the Above the Law article.

The Society of Corporate Compliance and Ethics will present its 17th Annual Compliance & Ethics Institute, October 21-24, 2018, in Las Vegas, with top industry experts and professionals from around the world.

At this four-day networking and educational event, participants will gain information they need to effectively manage their compliance programs and mitigate risk, the SCCE says on its website.

At the Compliance & Ethics Institute, participants will:

• Network with over 1,800 professionals from all industries and 40 countries.
• Choose from 10 learning tracks, 100+ sessions, and over 150 speakers.
• Get up-to-date on issues relevant to your current challenges, including global antitrust compliance, cyber security, anti-corruption, and harassment and discrimination prevention.
• Leave with practical solutions you can immediately put into practice at your organization.

This conference is for compliance and risk professionals and those who work with them in an advisory or partnership capacity. Positions include: in-house and outside counsel, audit managers and officers, consultants, corporate executives, human resource managers, privacy officers, researchers and policy makers, risk managers, staff educator and trainers, and more.

Get more information.

Bloomberg Law is reporting that a former partner in Jones Day’s Silicon Valley office alleged in a suit June 19 that she was kicked out of the firm after raising concerns about its treatment of female lawyers.

The former partner, Wendy Moore, alleged that the firm’s leaders retaliated against her after she voiced misgivings about the firm’s alleged sexist culture, lack of pay transparency, and marginalization of female attorneys, according to reporter Stephanie Russell-Kraft.

“The firm’s male leaders often make sexist comments and rate the attractiveness of female attorneys, paralegals, staff, and officers of the firm’s clients,” Moore’s complaint complaint says. “Business development events, too, often center on degrading stereotypes of femininity and cater to a preference for sports and alcohol.”

Read the Bloomberg Law article.

A company’s human resources department has only one criterion for a candidate for an in-house position, but “fit” isn’t the real issue, suggests an Above the Law columnist identified as “a harried in-house counsel at a well-known company that everyone loves to hate.”

Using the pseudonym of “Kay Thrace,” the author recalls her days in Biglaw, when the firm HR team carefully culled thousands of résumés of the ivy elite and organized perfectly balanced recruiting lunches.

“[I]n Biglaw, every single one of us knew that we were only as good as last year’s talent pool, so we had to strive to get the best and brightest. In-house? Not so much.”

It’s different in the business world, however, because “apart from a few basic qualifications (do you have a law degree, are you in good standing, have you killed someone in this state in the last five years, etc.), HR has nothing else to hang their hats on other than fit.”

Forget fit, she writes: “Do you know when you’re being patently misled by the business and are you gracious about rectifying the situation and guiding it to a satisfactory, risk-mitigating conclusion? Yes? You’re freaking hired.”

Read the Above the Law article.

Drew York, writing in Gray Reed & McGraw’s Tilting the Scales blog, offers some advice on how to “failsafe” electronic agreements with employees.

He describes a scenario in which a company requires its employees to electronically acknowledge receiving, reviewing and agreeing to abide by the company’s employee handbook. One of the workers later is injured on the job, and the company wants to invoke the handbook ‘s arbitration agreement.

“In several recent cases, employees have disputed that they electronically acknowledged an agreement with their employer,” writes York. “This raises an intriguing question: how do employers prove that an employee ‘signed’ an agreement when there is no written signature?”

Read the article.

NAVEX Global recently released two of its annual industry-leading benchmark reports. With data from more than 1,200 respondents, these reports provide analysis of today’s compliance challenges relating to policy management and hotline reporting.

The company says the reports illustrate how best-in-class programs are reducing legal, reputational and regulatory liability, and get expert advice to help improve a compliance program.

The reports are:

1) The 2018 Policy & Procedure Management Benchmark Report uncovered the four essential elements that the most effective policy management programs have in common. The report also showcases best practices for policy creation and distribution, how organizations ensure employees understand and adhere to policies, and how the recent DOJ advice impacts compliance programs.

2) The 2018 Hotline & Incident Management Benchmark Report shows employee complaint and misconduct reports are rising—and a surprising 44 percent of all reports are substantiated. However, cases are taking longer than ever to close, leading employees to feel unheard and be more likely to report externally—ultimately causing missed opportunities to mitigate risk and reputational damage. Get best practices from the experts to help you encourage internal reporting.

A lawsuit accusing the U.S. Department of Veterans Affairs of failing to pay overtime to nurse practitioners and physician assistants since December of 2006 has been certified as a class action, according to a web post by Androvett Legal Media & Marketing. The certification is listed as an opt-in class, opening the door for more plaintiffs.

Class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin brought the lawsuit on behalf of nurse practitioners and physician assistants from VA facilities across the country. Attorneys estimate as many as 10,000 VA employees nationwide ultimately could be represented in the class action.

According to the lawsuit, nurse practitioners and physician assistants were required to process electronic and computer patient records after work hours using VA facility computers, laptops and sometimes their own personal home computers without compensation. The work is vital to the treatment of patients and is considered mandatory by VA supervisors.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Mooney Green, P.C. in Washington, D.C.

“These are medical professionals who are taking care of our veterans,” said Hamilton. “If we aren’t paying them properly, what sort of statement does that make about the importance of caring for those who watched over us and our rights?”

“Ultimately, it’s about patient care,” said Cook. “We need to do our utmost for those who have put on the uniform and defended our rights. And, we can start by properly paying the medical professionals who care for them when they need it.”

The race to top or match big law firms’ salaries for associates took on another twist as Cravath Swaine & Moore announced it will be giving senior associates a hike that brings their compensation to $340,000.

Bloomberg Law reports that figure will beat Milbank,Tweed, Hadley & McCloy’s pay for its top associates by $10,000.

Above the Law has a memo — provided by tipsters — that outlines Cravath’s compensation schedule for associate classes 2017 ($190,000) through 2010 ($340,000).

“Cravath might be late to the game, but now that it’s here, we can expect nearly every other major Biglaw firm to follow. (Sullivan & Cromwell) will be here soon. Skadden, Davis Polk, Debevoise, they’re all coming now. This is the new Biglaw associate salary,” writes Above the Law’s Elie Mystal.

Read Bloomberg Law’s article.

Read the Above the Law article.

A federal judge has certified a class action lawsuit involving nurse practitioners and physician assistants accusing the U.S. Department of Veterans Affairs of failing to pay overtime since 2006, according to a post on the site of Androvett Legal Media and Marketing.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims granted certification in an action brought by class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin on behalf of nurse practitioners and physicians assistants at 85 different facilities across the country.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Washington DC’s Mooney Green, P.C.

“These health care professionals dedicate their time for the well-being of our veterans, and by law, are entitled to overtime when they are required to work beyond their work schedules,” said Hamilton. “We believe this lawsuit to be critical for veteran patient safety and health. To expect these employees to work extended hours without overtime pay is wrong. With the class certification, we can now proceed onto the next step in this lawsuit.”

The lawsuit seeks compensation for employees who worked overtime processing electronic and computer patient records using VA facility computers, VA laptops and sometimes personal computers, work that is critical to the medical treatment of patients. Nurse practitioners and physician assistants say the work is considered mandatory. Those who failed to complete the assignments were subject to disciplinary measures for poor time management.

“I’m grateful that the judge agreed with us and certified the lawsuit as a class action,” said Cook. “It is wrong for any employer to expect people to work for free.”

Hamilton and Cook estimate that as many 10,000 VA employees could be represented in the class action lawsuit, according to the Androvett post.

The case is Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred, Michele Gavin v. The United States of America, No. 1:12-cv-00920 in the U.S. Court of Federal Claims.

Around half a dozen law firms have stepped up to say they will match the new $190,000 salary level for freshly minted lawyers set by Milbank, Tweed, Hadley & McCloy this week, reports Bloomberg Law, but others have been slower, or may not come forward at all, as firms try to navigate the shifting business conditions.

“Such large salary boosts can be costly, and it’s one that often is borne by the law firm. Corporations are reluctant to underwrite the six-figure salaries for lawyers straight out of law school,” explains reporter Elizabeth Olson.

She talked to James Jones, a senior fellow at Georgetown law’s Center for the Study of the Legal Profession, who agreed that clients would not be happy. Firm billing rates for the largest 100 law firms rose last year, and an across-the-board raise could indicate another hike in billing, he noted.

Read the Bloomberg Law article.

Bloomberg is reporting that Walmart Inc. sued its former chief tax officer for violating her employment agreement by defecting to online rival Amazon Inc., the latest broadside in the slugfest between the two retail giants.

Walmart, citing contractual terms, is trying to block Lisa Wadlin, Walmart’s senior vice president and top tax executive, from taking the Amazon position until May 2020 and bar her from handing over “sensitive business information obtained at Walmart.”

Reporters Jef Feeley and Matthew Boyle write that Walmart’s suit claims that Wadlin “wrongfully left the Bentonville, Arkansas-based chain last month to move to Amazon’s headquarters in Seattle, Walmart officials said Wednesday in a lawsuit.”

Read the Bloomberg article.

A decision by the Federal District Court for the Northern District of Illinois in Medix Staffing Solutions, Inc. v. Dumrauf serves as a reminder to employers why restrictive covenants should be limited in scope and duration to what is necessary to protect the employer’s business, writes David J. Hochman in an alert for Roetzel & Andress.

“The District Court, applying Illinois law, granted the defendant’s motion to dismiss Medix’ suit with prejudice and without providing the plaintiff an opportunity to present evidence or to pursue discovery,” he explains. “The Court held that the covenant was overbroad on its face and, therefore, unenforceable because it prohibited the defendant from taking any position with another company engaged in the same business as Medix— without regard to whether his new position was similar to his position with Medix or whether his new employer competed with Medix.”

Hochman writes that the opinion demonstrates why it is so important to limit the activities prohibited by a restrictive covenant, as well as the geographic scope and duration, to what is reasonably needed to protect the employer.

Read the article.

Bloomberg Law reports that salaries of law firm associates got a healthy boost Monday when Milbank, Tweed, Hadley & McCloy LLP announced that it will increase pay by $10,000 for lawyers in their first three years, and $15,000 after that.

That raise will bring starting salaries for associates to $190,000, up from the current $180,000, write Elizabeth Olson and Casey Sullivan.

Competition for legal talent has grown particularly fierce when it comes to the kind of complex, high-end transactions that Milbank specializes in, Scott A. Edelman, Milbank’s chair, told Bloomberg Law.

Read the Bloomberg article.

A group of 28 subcontractors at a Valero refinery in Texas City are suing the company and their employer, alleging that they suffered injuries and post-traumatic stress from an explosion at the plant less than two months ago, reports the San Antonio Business Journal.

The employees of  Beaumont-based Richard Industrial Group Inc. filed the lawsuit against their employer and Valero Refining Texas LP, a subsidiary of San Antonio-based refining company Valero Energy Corp.. Richard Industrial Group provides subcontracting work at Valero’s Texas City refinery, according to reporter Sergio Chapa.

“The workers are seeking damages based on claims that they suffered orthopedic injuries and hearing loss from the accident and are dealing with post-traumatic stress disorder,” writes Chapa.

Read the Business Journal article.

Sandra Goldstein, a former leader of Cravath, Swaine & Moore’s litigation department who is leaving the firm to join Kirkland & Ellis, will be well-compensated in her new role: $11 million a year for five years, plus a signing bonus, according to The New York Times.

“What has the legal profession’s upper ranks abuzz is that for decades partners almost never left Cravath voluntarily — not for other law firms, at least, let alone for a firm like Kirkland, which is in some ways Cravath’s polar opposite,” writes reporter James B. Stewart.

He adds that Kirkland has shaken up the profession and expanded its practice by poaching top partners from Cravath, Latham and Skadden Arps Meagher Slate & Flom.

Read the NY Times article.

Bloomberg Law is reporting on a a seminal study from the Hazelden Betty Ford Foundation found widespread mental health problems among attorneys.

The report says that approximately 40 percent of associates at large firms have unlimited vacation days, according to Matt Moody, a senior law editor at career research company Vault. “But taking vacations while billing enough hours, remaining available to clients, and meeting court deadlines can be tricky. The Vault survey found only 31 percent of associates used all their vacation days, Moody said.”

Reporter Gayle Cinquegrani writes that lawyer and licensed alcohol and drug counselor Patrick R. Krill and lead author of the Hazelden study, believes that skipping vacations can “be a set-up for anxiety, depression, alcoholism, and burnout.”

Read the Bloomberg article.

The 4th annual Bloomberg Law In-House Forum will Explore the steps that general counsel need to take to mitigate the internal cybersecurity threat.

The event will be Wednesday, June 27, 2018, at the Grand Hyatt San Francisco, 345 Stockton Street, San Francisco 94108.

Specifically, the event will dissect one of the most pressing issues affecting the modern corporate workplace: cybersecurity threats from its own employees. Participants will learn how general counsel can effectively partner with other teams at the organization to guard against this growing risk.

Speakers will guide the discussion, outlining how corporate counsel can build relationships between IT and Human Resources in order to act in a leadership role, crafting an effective risk avoidance plan that includes auditing, training, and both preemptive and post-breach initiatives.

Register for the event.

Employment and labor law firm Littler has released the results of its seventh annual survey, completed by 1,111 in-house counsel, human resources professionals and C-suite executives. The Littler Annual Employer Survey, 2018 analyzes the impact that sweeping regulatory changes and other factors, including the #MeToo movement, are having on employers.

The firm summarized its findings:

Following a year that brought several changes to workplace policy, the survey shows employers feeling some regulatory relief with the change in administration, while cautiously anticipating less of an impact from key regulatory issues over the next year. The portion of respondents expecting a significant impact from the Affordable Care Act dropped from 33 percent in the 2017 survey to 15 percent in 2018, with similar drops in significant concern around enforcement by the U.S. Department of Labor (25 percent to 16 percent) and the National Labor Relations Board (13 percent to 8 percent).

At the same time, employers feel buffeted by the burdens created by abrupt and dramatic regulatory changes, slow-moving confirmations to key government agency positions and the growing patchwork of state and local labor and employment requirements. The majority of respondents (64 percent) said that reversals of workplace policies and regulations between presidential administrations put a strain on their businesses and 75 percent said they faced challenges as states and localities work to fill perceived policy vacuums at the federal level.

“Companies want certainty more than anything,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “The vast majority of employers want to comply with the law and the continuous reversals of federal workplace policy, as well as the increasingly fragmented and sometimes contradictory rules at the state and local level, is an enormous distraction for them. Uncertainty means inability to plan, budget and anticipate, and it requires constantly retraining employees and reformulating employment policies.”

Of the changes that occurred during the first year of the Trump administration, respondents identified the rollback of wage-and-hour policies (62 percent) and the new tax bill (62 percent) as the areas that have most significantly impacted their businesses.

Immigration Reform Focuses on Visas and Enforcement

Amid tightening regulation and enforcement of both legal and illegal immigration, employers expect a range of immigration-related changes to significantly impact their workplaces over the next year.

Tighter restrictions on visa adjudications, such as those for employees with specialized skills and temporary workers, was the top concern selected by 48 percent of respondents. More than a third (36 percent) expressed concern with increased workplace immigration enforcement by U.S. Immigration and Customs Enforcement and associated agencies.

“It’s not surprising that the visa process and immigration enforcement emerged as employers’ top concerns,” said Jorge Lopez, chair of Littler’s Global Mobility and Immigration Practice Group. “The increased scrutiny being applied to employment visas and rule changes impacting visa programs, which often come mid-stream and without prior warning, make it difficult for employers to plan ahead and manage their workforces. In addition, the increase in worksite enforcement and raids have naturally heightened employers’ focus on worksite compliance issues and properly addressing those concerns.”

Continued Workplace Discrimination Enforcement Expected Amid Focus on Harassment

The survey showed virtually no change in the impact employers anticipate from enforcement by the Equal Employment Opportunity Commission (EEOC) over the next year, with 76 percent anticipating an impact in the 2017 survey and 77 percent in 2018. This aligns with a key finding from Littler’s Annual Report on EEOC Developments – that the Commission actually filed more lawsuits in fiscal year 2017 than it has since 2011.

Employers surveyed expect the EEOC’s top enforcement priorities in the near-term to be harassment claims (64 percent), hiring practices (53 percent) and retaliation against employees who file discrimination or harassment claims (48 percent).

“Employers are right to expect the EEOC to continue to vigorously investigate workplace discrimination claims, particularly harassment claims and other EEOC priorities, regardless of upcoming changes at the Commission with an expected new chair, commissioner and general counsel,” said Barry Hartstein, co-chair of Littler’s EEO & Diversity Practice Group. “With the #MeToo movement and the EEOC’s focus on stemming the tide of harassment in the workplace, taking steps to minimize the risk of harassment claims should be a top priority for employers. We also should expect an active plaintiffs’ bar threatening and initiating private lawsuits during the coming year based on these developments.”

Sexual Harassment and Pay Equity Rank as Top Concerns for Employers

Among the many headline-grabbing issues swirling through the workplace, the majority of survey respondents (66 percent) ranked sexual harassment as the most or second-most concerning issue on their radar.

In the wake of the cultural shift sparked by the #MeToo movement, 55 percent of respondents have added training for supervisors and employees, and 38 percent have updated human resource policies or handbooks. However, only 13 percent have implemented new tools or investigation procedures to manage employee complaints and 24 percent have not made any changes over the past year.

“No company can afford to ignore this issue, and while many already have a good foundation, the past several months have shown the importance of reevaluating and reinforcing policies and procedures,” said Helene Wasserman, co-chair of Littler’s Litigation and Trials Practice Group. “While the law governing harassment in the workplace hasn’t changed much, employee expectations have. In addition to providing training and updating policies, it’s critical that companies have effective complaint procedures in place and that employees feel confident that reports of potential misconduct will be taken seriously and acted upon.”

Gender pay equity followed sexual harassment as the second-most concerning issue in the headlines for employers, with 41 percent placing it among their top two concerns. Companies reported taking action as a result, including conducting audits of current pay practices and salary data (61 percent) and revising hiring practices, such as updating job applications and ceasing the practice of asking candidates about prior salaries (34 percent). However, only 14 percent have modified compensation policies or taken steps to facilitate advancement of female and minority employees.

“Conducting audits is a critical first step to identifying pay disparities among employees, but with continued attention to this issue and an evolving legal landscape, an audit is just the beginning of addressing pay equity in the workplace,” said Denise Visconti, a shareholder heading the Littler Pay Equity Assessment. “As time goes on, pay disparities only become more intractable, so proactively addressing this issue helps companies mitigate risk and reinforce their commitments to treating employees equally and fairly.”

Employers Start to Embrace Data Analytics and Artificial Intelligence

Recruiting and hiring is the most common use of advanced data analytics and artificial intelligence, adopted by 49 percent of survey respondents. Employers also said they were using big data to guide HR strategy and employee management decisions (31 percent), analyze workplace policies (24 percent) and automate tasks previously performed by humans (22 percent). The smallest group of participants (5 percent) are using advanced analytics to guide litigation strategy.

“It is encouraging to see employers starting to embrace the many benefits provided by big data in helping manage their most important asset, their people,” said Aaron Crews, Littler’s Chief Data Analytics Officer. “However, it appears that many employers are not aware of the significant potential to use advanced data techniques to guide litigation strategy. The ability to leverage data early in a case, to tease out insights before you ever take a deposition or begin evaluating the credibility of witnesses, is revolutionary.”

The survey results are being released at Littler’s 35th annual Executive Employer Conference taking place May 2-4, 2018, in Phoenix, Arizona.