Elie Mystal, writing for Above the Law, discusses some top factors to remember when dealing with a sexual predator who has signed you to a non-disclosure agreement.

Among those factors are: the need for the predator to show actual injury, the information disclosed has to be secret and confidential, courts will consider public policy, and courts will consider unequal bargaining power.

“If you’ve signed a non-disclosure agreement, it’s a risk to violate it. You might get sued, you might be forced to pay back some money,” she warns. “Or you might set liberating case law that allows more of these claims to come forward.”

Read the article.

A recent report by the Dallas Women Lawyers Association, titled Bridging the Gap: Practical Resources and Suggestions for Promoting and Retaining Female Attorneys in the Legal Profession, is a concise rundown of the challenges women lawyers face and how to address them, according to Amy Boardman Hunt of Muse Communications.

She says the report illustrates two important points:

1) the legal profession has a long way to go to reach anything close to gender parity, and;

2) it is incumbent on women lawyers to help close the gap, both by advocating for systemic changes in the profession and by engaging in the kind of strategic self-promotion that can position them to make those changes happen.

Read the article.

The concept of off-duty misconduct and any on-duty punishment that may occur can sometimes be a slippery slope, warns Natalie Lynch of Lynch Service Company in a web posting.

While there are plenty of instances of people being fired or reprimanded for their off-duty behaviors, there are also instances of terminated employees fighting for reinstatement under the guise that their off-duty conduct did not impact their on-duty work or the reputation of the company, she writes.

“Problems may arise when a company fails to outline what type of off-duty conduct is considered verboten and how employees are to conduct themselves during their off-duty hours. Problems can also arise when an employee punishes or terminates an employee for thoughts or actions that the company deems unsatisfactory, but are not illegal or truly damaging to the company, Lynch writes.

Read the article.

Littler has added Russell A. Jones and Kathryn S. McConnell as shareholders in the Atlanta office. The  employment litigation and counseling practitioners join Littler from Kilpatrick Townsend & Stockton.

“Our Atlanta office has grown steadily over the years and now comprises more than 40 lawyers,” said L. Traywick Duffie, office managing shareholder of Littler’s Atlanta office. “Adding Russell and Katy, who both bring extensive experience in labor and employment law and a deep knowledge of the region, will further strengthen our team in Atlanta, which recently was among several Littler offices to earn a Tier 1 ranking in the 2018 U.S. News – Best Lawyers® ‘Best Law Firms’ list.”

Jones focuses his practice on providing counseling and training on various issues that arise out of the employer-employee relationship, including compliance with equal employment opportunity laws, union avoidance, wage and hour issues, disability and medical leave requirements, and non-competition and other employment agreements. He also helps businesses comply with state and federal laws related to background checks of employees and job applicants, workplace privacy and information security, policies related to employees’ social media activity, and whistleblowing and retaliation. Jones regularly represents clients in state and federal courts, before administrative agencies, and in the mediation of employment-related claims.

“Having begun my legal career at Littler nearly 18 years ago, I am thrilled to rejoin the Atlanta office and to be part of a firm with unparalleled capabilities and resources,” said Jones. “Littler has handled some of the most complex and significant labor and employment cases, including several out of the Atlanta office, and I look forward to leveraging Littler’s impressive platform to serve the evolving needs of global employers.”

McConnell counsels and defends multinational and domestic companies on employment and traditional labor law matters, including discrimination, harassment and retaliation in the workplace; wrongful termination; wage and hour compliance; unfair labor practice charges and union avoidance; and restrictive covenants. She regularly prepares and advises on non-competition, confidentiality, non-disclosure and other employment-related agreements, as well as the development of incentive and commission plans. McConnell’s employment litigation practice includes defending employers before state and federal courts, the Equal Employment Opportunity Commission and equivalent state agencies, and the National Labor Relations Board, as well as representing employers in arbitrations implicating collective bargaining agreements.

“Littler is a dominant force in labor and employment law, with technological capabilities, deep subject matter knowledge and a global footprint that is unrivaled in the space,” said McConnell. “I am excited to work with such a talented team of attorneys in the Atlanta office and across the globe to counsel employers operating in the U.S. and globally.”

Jones received his J.D., magna cum laude, from the University of Tennessee College of Law and his B.S., summa cum laude, from Appalachian State University. He worked as an associate in Littler’s Atlanta office from 2000 to 2003. McConnell received her LPC, with honors, from the College of Law in the United Kingdom and her B.A. from the University of Cambridge. She is admitted as a solicitor in England and Wales and, earlier in her career, worked in the London office of an international law firm.

Jason M. Knott of  Zuckerman Spaeder LLP describes a recent case in which  T3 Motion, Inc. (a Segway competitor) used a lack of mutual assent to avoid arbitration of its claims against its former CEO, William Tsumpes.

Writing in the firm’s Suits By Suits blog, Knot explains that it’s unusual for an employee to seek arbitration in a contract dispute.

“T3 wanted to litigate in court, and its former CEO, William Tsumpes, wanted to force T3 into arbitration. T3 had brought suit against Tsumpes and various corporate entities that it alleged were his alter egos, alleging that Tsumpes improperly took money from the company for his own personal use,” Knott writes.

Tsumpes presented a signed employment agreement that required arbitration, but T3 contested whether it had agreed to the written contract.

Read the article.

A recent federal court denied an employer’s motion to compel arbitration, finding that it waived its right to arbitration by engaging in litigation.

George L. Kanabe, a partner in the San Francisco office of Orrick, Herrington & Sutcliffe LLP, discusses three key lessons the ruling provides for plaintiff-employers.

Kanabe reports that the ruling noted, “[t]here is no other reasonable interpretation of plaintiff’s untimely demand for arbitration than as a deliberate tactic to test the judicial waters but then, when those waters did not flow the direction plaintiff intended, to change routes in hopes of finding a different current.”

Read the article.

Significant tools in the arsenal of strategies are contracts signed by the employee, but waiting until the employee departs is too late to start thinking about them, points out Spiwe L. Jefferson in an article on the website of the Association of Corporate Counsel.

In her article, she discusses contract considerations at the beginning of the employment relationship.

She covers confidentiality agreements and nonsolicitation agreements,. Under the “noncompete agreements” heading, she discusses limiting temporal scope, protecting legitimate interests, exempted professions, timing requirements, consideration, and geographic limits.

Read the article.

A U.S. district judge says she saw prejudice in a jury’s verdict Tuesday that would have awarded $1.13 million in damages to a former JPMorgan Chase & Co. employee over her dismissal, according to Bloomberg.

The Manhattan jury deliberated for five hours to find the former wealth manager has been fired illegally. The jury awarded her $563,000 in back pay and $563,000 for emotional damage.

Reporter Bob Van Voris quoted Judge Denise Cote:

“The award of emotional damages says to me that the jury was prejudiced against the bank. That undermines the entire verdict.”

Read the Bloomberg article.

American labor laws normally protect workers from retaliation for unionizing, but billionaire CEO Joe Ricketts seems to have used a dramatic exception when he closed his news websites after some workers voted to unionize: A business may always close its operations entirely.

Francie Diep, a reporter for the Pacific Standard, writes that all of the publcations’ offices — including those in San Francisco, Los Angeles, Chicago and Washington, which had not voted to unionize — are now closed.

“If lawyers decide to pursue a case charging that Ricketts acted illegally, they’ll have to prove that some part of the business is still operating — say, if Ricketts were tied to another media company somehow — or that, after the shutdown, Ricketts opened up a similar business elsewhere,” Diep writes.

Read the Pacific Standard article.

A new post on Bryan Cave’s At Work blog explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

“To avoid breach of contract claims premised on employee handbook policies, employers should include an express contract disclaimer in their employee handbooks,” write Bill Wortel and Christy Phanthavong.

The article explains the “at will” clause, the use of a reservation of right by the employer to modify policies, and the need for the disclaimer to be conspicuous.

Read the article.

The CEO of a group of digital local news sites shut down the publications a week after reporters and editors in the combined newsroom of DNAinfo and Gothamist voted to join a union, reports The New York Times.

Joe Ricketts, the billionaire founder of TD Ameritrade, owned the sites.

“For DNAinfo and Gothamist, the staff’s vote to join the Writers Guild of America East was just part of the decision to close the company, write Andy Newman and John Leland.

“The decision by the editorial team to unionize is simply another competitive obstacle making it harder for the business to be financially successful,” said  a spokeswoman for DNAinfo.

Read the NYT article.

In workplace harassment cases — both in Hollywood and in the rest of the American workforce — many companies try to use nondisclosure agreements to protect the employer from legal consequences for wrongdoing, according to Bloomberg Law. And the NDA can also serve to keep criminal behavior out of the public eye and the courts.

That’s how someone like Hollywood producer Harvey Weinstein can be a repeat offender without consequence, explains Bloomberg reporter Rebecca Greenfield.

She quotes Peter Romer-Friedman, an employment lawyer at Outten and Golden: “It’s buying silence. It’s buying confidentiality. It’s trying to sanitize. These agreements are often protecting criminal activity.”

“NDAs are geared to ensure that the fraction of people who do come forward can’t warn others or bring claims to light, all of which contributes to the culture of silence around workplace harassment.
Legal scholars are now asking if settlements backed by nondisclosure pacts are protecting criminal activity,” Greenfield writes.

Read the Bloomberg article.

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A lawsuit recently brought against General Electric Co. raises the question: Can your employer be trusted to manage your retirement fund exclusively for your own benefit?

Los Angeles Times reporter Michael Hiltzik explains that the suit alleges that GE managed the plan for its own benefit by loading it with mutual funds owned by its own subsidiary.

“The funds charged high fees while also underperforming the investment markets, a double-barreled drawback that cost employees millions in potential gains,” according to Hiltzik.

Plaintiffs claim that a large portion of the funds was invested in GE-owned mutual funds, and the company pocketed the management fees paid by its own employees. All but one of the five GE funds underperformed its benchmark investment index.

Read the LA Times article.

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In structuring overseas postings, multinationals inevitably struggle with the interplay between expatriate assignment strategy and the legal ramifications of a particular foreign posting, points out Donald C. Downling, a shareholder in Littler Mendelson P.C.

“The various types of cross-border personnel moves raise questions of how best to structure a given international assignment,” he writes. “To resolve these questions, we address four threshold issues: (A) who is and is not an expatriate?; (B) four expatriate structures; (C) selecting the best expatriate structure; and (D) written expatriate agreements.”

A link at the end of the article on Littler’s website connects to the full report.

Read the article.

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The New York Times reports that, as National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

Reporter Noam Scheiber writes that, since Trump’s call for firing players, their demonstrations now could constitute labor activity that’s federally protected, explains Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board.

“If they’re standing up for other players’ rights to kneel in the context of their job and keep their job, it seems to me to be protected concerted activity,” Bodie said.

Read the NYT article.

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Fox News general counsel Dianne Brandi will take an unspecified leave of absence from the company, in the latest sign of fallout from the network’s long-running sexual harassment scandal, reports The Washington Post.

Brandi has been named in four lawsuits filed by former Fox employees or contributors alleging harassment. And a federal investigation into Fox News’ financial practices began to focus on her role during the long tenure of its co-founder and former chairman, Roger Ailes, sources told the Post. Investigators are looking into payments made under Ailes to employees who had accused him and other executives of harassment or mistreatment.

“Brandi could prove to be a key figure in the investigation because of her long and close association with Ailes, who was ousted from Fox last year amid harassment allegations and died in May,” writes reporter Paul Farhi. “She may have direct knowledge of some of his more secretive and allegedly sinister management practices, people who are involved in the investigation said.”

Read the Post article.

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The validity of arbitration clauses in employment contracts is unclear and is now before the U.S Supreme Court, points out Mary An Couch in Bradley Arant Boult Cummings LLP’s Labor & Employment Insights blog.

The Supreme Court heard oral argument in National Labor Relations Board v. Murphy Oil, USA, Inc. and two other consolidated cases about whether such clauses violate the National Labor Relations Act (which governs employer-employee relations) or whether the Federal Arbitration Act (which governs arbitration agreements) trumps the NLRA, she writes.

The relevant cases being considered are from the 5th Circuit, which found the arbitration clause did not violate the NLRA, and the 7th and 9th circuits, which found similar clauses unenforceable.

Read the article.

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A pair of lawsuits allege two Florida law firms failed to pay administrative workers proper overtime wages in compliance with the Fair Labor Standard Act, reports Above the Law.

Reporter Kathryn Rubino explains: “Brandi Durrett, a case manager, is suing personal injury firm The Disparti Law Group and its founder, Lawrence Disparti over unpaid overtime wages. Jayne Hinkle, an office manager, is making similar claims against The Jodat Law Group and partner Gary Jodat.”

Plaintiffs claim their employers would use various methods to circumvent overtime compensation requirements.

Read the Above the Law article.

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CBS fired a a senior legal counsel after she criticized some victims of the Las Vegas mass shooting as “Republican gun toters” who did not deserve sympathy, reports The Washington Post.

“Hayley Geftman-Gold, who was a vice president and senior legal counsel at CBS in New York, also wrote on Facebook that she had no hope that Republicans — whom she called ‘Repugs’ — would ever take action and ‘do the right thing’ if they didn’t do anything when children were murdered, an apparent reference to the December 2012 Sandy Hook shooting that left 28 people dead, including 20 children, killed inside their elementary school in Connecticut,” writes Mary Hui.

CBS confirmed firing Geftman-Gold and called her comments on social media “deeply unacceptable.”

Read the Washington Post article.

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President Donald Trump has a solution to stop football players from taking a knee in protest during NFL games.

“The NFL has all sorts of rules and regulations,” Trump said in a tweet this week. “The only way out for them is to set a rule that you can’t kneel during our National Anthem!”

But can NFL owners really do that? Yes, says noted Dallas employment lawyer Rogge Dunn.

“This is no different than employers prohibiting employees from smoking at the office or outside of the office,” said Dunn, a partner at Clouse Dunn LLP.

As reported on the website of Androvett Legal Media & Marketing, more than 100 pro football players defiantly knelt or locked arms before games on Sunday and Monday. Many did so following Trump’s harsh criticism at a campaign rally in Alabama late last week. He said in a speech:

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’”

While last weekend’s wave of protests were a show of solidarity against President Trump, former San Francisco 49ers quarterback Colin Kaepernick actually sparked the movement in 2016 by sitting on the bench during the national anthem to put a spotlight on the victimization of African-Americans by police.

Regardless of the cause, Dunn said more employers are regulating employees’ actions inside and outside of work.

“An employer can regulate employees’ actions at the office and outside, including limiting their political activities and firing them for speaking out or protesting,” he said.

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