NAVEX Global has produced a new ethics and compliance benchmark report that provides key statistics to measure and prove the value of educating employees on the right topics.

The report can be downloaded from the company’s website.

Most companies are using compliance training to teach employees about respect, ethical behavior and legal requirements. Yet companies continue to make headlines for bad employee behavior, NAVEX Global says on its website.

In the 2017 Ethics & Compliance Training Benchmark, NAVEX Global collaborated with an independent research firm to deliver data that answers questions like:

• What are the typical employment law training courses provided?
• What issues threaten training effectiveness?
• How are organizations aligning training with risk?
• How often, and on what topics, are boards training on?

The report also gives guidance on rigorous methods to use such as maximizing data from hotlines, measuring changes to behavior and more.

Download the report.

The case of Donald Zarda, a skydiver who claimed his employer, Altitude, violated Title VII when it fired him after finding out he was gay, illustrates how the U.S. Department of Justice and the Equal Opportunity Commission can sometimes operate at cross purposes in litigation.

According to a Reuters report, the EEOC, an independent federal agency, is representing Zarda’s estate against the former employer. At the same time, the DOJ has filed its own amicus brief, explicitly disavowing the EEOC’s stance.

Alison Frankel writes that the brief “argued primarily that the EEOC and the 7th Circuit, which adopted the agency’s reasoning in its en banc opinion last April in Hively v. Ivy Tech Community College, disregarded the actual language of the statute and misread Supreme Court precedent on interpreting that language. According to the Justice Department, it’s up to Congress, not the courts, to legislate protection for gay and lesbian employees, and Congress has steadfastly refused to do so.”

Read the Reuters article.

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A non-competition agreement raises state-law public policy concerns. As a result, states often restrict the scope of non-competition agreements before they will enforce them, warns Mark Koogler in Porter Wright Morris & Arthur’s Federal Securities Law Source.

“Most jurisdictions disfavor non-competition agreements as a matter of public policy because they view such agreements as a restraint of trade,” writes Koogler. “Broader language places a heavier burden on the employer to justify the restrictions whereas narrowly tailoring the language of a non-competition agreement reduces the risk that a court will construe the agreement to unnecessarily restrain trade.”

Koogler writes about the importance of balancing the interests of the employer and employee.

Read the article.

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Executives and other high-level employees often negotiate a contractual provision requiring the payment of severance if terminated without “Cause” prior to the expiration of a term agreement, points out Bill Wortel in Bryan Cave’s At Work blog.

“Too often, employers limit the definition of Cause to intentional misconduct that harms the company, criminal behavior, or the executive’s death. Such a narrow definition ties the employer’s hands when an executive is not making a good-faith effort to perform well or is performing very poorly despite reasonable efforts,” Wortel writes.

He advises that the agreement should include a definition of cause that provides the company with flexibility to terminate an executive for legitimate, non-discriminatory business reasons.

Read the article.

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Blank Rome LLP announces that Laura Reathaford has joined the firm as a partner in the Labor and Employment group in the Los Angeles office. She joins from Venable LLP.

In a news release, the firm said Reathaford focuses her practice on management-side employment litigation, with special emphasis on representative actions under the Private Attorney General Act (PAGA) and other wage and hour collective and class actions. PAGA allows aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. The act represents a significant threat to California employers and is in a constant state of change, requiring the most experienced, creative defense counsel.

“We are very excited to welcome Laura to the Firm,” said Alan J. Hoffman, Blank Rome’s Chairman and Managing Partner. “Laura is well known to our labor and employment team for her leadership in the defense of wage and hour claims, especially claims brought under PAGA. She brings considerable strength to this essential labor and employment capability in California, and adds equally considerable strength more broadly across the spectrum of defense-side labor and employment law for our clients across the country.”

The release continues:

Reathaford is a distinguished litigator across the full range of employment disputes, including claims for wrongful termination, sexual harassment, unpaid wages, discrimination, and union grievances. She is also an experienced trial attorney having achieved favorable judgments in numerous PAGA actions, as well as FLSA actions and in single plaintiff retaliation matters. In addition to high-stakes litigation, Reathaford counsels clients on termination issues, employee handbooks, leave and disability rules, and California and federal wage and hour laws. She represents the management of public and private businesses in the manufacturing and grocery industries, as well as in banking, healthcare, and telecommunications, both in California and nationwide.

“Still a relatively new law, PAGA is constantly evolving and our clients in California need the most experienced counsel to respond creatively and effectively to a rapidly increasing number of claims,” said Scott F. Cooper, Partner and Co-Chair of the Firm’s Labor and Employment practice. “Just recently, the California Supreme Court approved class-action like discovery of employee contact information in representative PAGA cases. Laura has been ahead of the curve on PAGA since the beginning. And as we field a growing number of calls from clients regarding PAGA, they will quickly see the benefits of having Laura join our team.”

“The labor and employment group at Blank Rome offers clients an exceptional depth and breadth of talent that I am excited to join and help grow,” said Reathaford. “I also look forward to once again collaborating with Partner Howard M. Knee, with whom I have worked before, as well as contributing high-level client service and legal practice to the Firm as it continues to expand both locally and nationally.”

“Laura will be a tremendous resource to the Firm’s ongoing commitment to diversity and inclusion, particularly with regards to our Women’s Forum,” adds Brooke T. Iley, Partner and Co-Chair of the Firm’s Labor and Employment practice. “Her previous role and experience in leading women’s diversity initiatives at Venable will be instrumental in advancing not only Blank Rome’s affinity groups, but also our firm’s efforts in diversifying the legal profession at large. I am excited for the new insights that she will bring to the table, which will greatly benefit both our clients and Firm.”

Reathaford earned her J.D. from Dalhousie University in Halifax, Nova Scotia, and B.Comm. from the University of Alberta.

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Clarence Webster III, writing in Bradley Arant Boult Cummings’ Labor & Employment Insights, asks and answers the question:  Can you look at an employee’s personal email account if you access it on company equipment?

“A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that,” he warns. “In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers ‘for purposes of backup protection.'”

Webster discusses the facts of the case and concludes that employers should be wary of accessing an employee’s web-based email account without permission.

Read the article.

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Michael Best announced it has added Bethany C. McCurdy to its Milwaukee office as senior counsel in the firm’s Labor & Employment Practice Group. McCurdy will concentrate her practice on management side employment law.

“As an experienced employment counselor and litigator, Bethany will be a powerful addition to our team,” said Amy Schmidt Jones, Chair of Michael Best’s Labor & Employment Relations Practice Group. “I’m confident that her aptitude for advising clients through various aspects of the employment relationship will continue to accelerate our presence here in the Midwest.”

Prior to joining Michael Best, McCurdy was a member of Petrie + Pettit where she defended employers through a wide breadth of employment related disputes and litigation matters including disability, family and medical leave, wage and hour, discrimination and workplace harassment.

“We’re thrilled that Bethany will be joining us here in Milwaukee,” said Danielle Bergner, Michael Best’s Managing Partner of the Milwaukee office. “Her dedication and determination to resolve client matters, particularly so in the manufacturing sector, will be a huge advantage to those she represents.”

“The decision to join Michael Best presents a wonderful opportunity for me,” said McCurdy. “The firm continues to expand and find new and interesting ways to better advise their clients and I’m certain that my colleagues and I will continue to enrich the L&E group.”

McCurdy received her J.D. from Marquette University Law School and her Bachelor’s Degree in Journalism and Sociology from the University of Wisconsin-Madison.

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There are specific actions an organization can take to ensure it has the leadership it needs in case of a crisis, as well as for their future sustainability, according to TrainHR.

The company will present a webinar on the topic on Thursday, Sept. 7, 2017, at 1 p.m. EDT.

“Best-practice organizations use succession planning to not only prepare for potential leadership challenges but they also rely on such plans to develop and maintain the strong leadership that’s required to grow and keep pace with changes in their business, industry, and overall marketplace,” TrainHR says on its website.

Read more about the webinar.

Jeffrey L. Papa, former chief of staff and chief legal counsel for the Indiana Senate, has rejoined Barnes & Thornburg LLP as a partner in the firm’s Labor & Employment Law Department.

Papa, who was an attorney at the firm from 2001 to 2007, will focus his practice on immigration matters.

“We are excited to welcome back Jeff to the firm to assist our business clients with their immigration issues,” said Brian L. Burdick, managing partner of Barnes & Thornburg’s Indianapolis office. “Jeff’s experience and understanding of immigration laws will greatly benefit businesses that continue to deal with the changing immigration environment as they seek to attract and retain talent to meet their objectives.”

During his previous stint at Barnes & Thornburg, Papa counseled clients on a number of issues, including nonimmigrant status and visa issues, as well as permanent residency matters. His work also included government relations.

In addition to his work in the Indiana Senate, Papa previously served as mayor of the Town of Zionsville and as Zionsville Town Council President.

Papa is active in several different initiatives, including co-founder and strategic advisor of Zionsville’s co-working space, zWorks. Additionally, he serves on the U. S. Global Leadership Coalition Indiana Advisory Committee.

He also is deeply involved in the community. He founded the Youth Enhancement and Training Initiative (YETI), a local nonprofit organization that raises operating funds for a Nepali orphanage.

Papa earned his J.D. and a master’s degree from the Indiana University Robert H. McKinney School of Law. He earned a doctorate in education administration and leadership from Indiana State University and a graduate certificate in higher education and student affairs from Indiana University. He also holds a master’s degree in business economics from Ball State University and a bachelor’s degree in economics from Rose-Hulman Institute of Technology.

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Akerman LLP has expanded its Labor & Employment Practice Group with partners Angela Hart-Edwards in Washington, D.C., Colin Barnacle in Denver, Denise Gavica Perez in Miami and Rory McEvoy in New York. They work with employers in the healthcare, hospitality and restaurant sectors, among others, the firm said in a release.

“Angela, Colin, Denise and Rory are exceptional lawyers who bolster Akerman’s national strengths in employment litigation and compliance,” said Eric Gordon, chair of Akerman’s Labor & Employment Practice Group. “Employers today are faced with a new set of uncertainties brought on by significant shifts in U.S. employment and immigration policies. The expansion of our team in New York, Denver, Miami and Washington, D.C., advances our ability to problem-solve on the ground with our clients while serving their interests nationally.”

The release continues:

Angela Hart-Edwards
Hart-Edwards is a former Trial Attorney for the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice Civil Rights Division. She also served as an Assistant U.S. Attorney for the U.S. Attorney’s Office for the District of Columbia. She focuses her practice in the areas of employment and civil rights law, government investigations and corporate compliance, and federal sector EEO employment law. With more than 20 years of experience as a trial lawyer, Hart-Edwards represents corporations and their executives in labor and employment related litigation, class/collective actions, agency proceedings, arbitrations and mediations and investigations. She also provides EEO services and defensive federal sector employment litigation services to agencies.

Hart-Edwards regularly advises management on litigation avoidance, negotiates and prepares employment and related agreements, provides human resource and EEO regulatory compliance counseling and training, and serves as corporate diversity counselor. Her clients represent a diverse range of industries including manufacturing, logistics, utilities, higher education institutions, technology, nonprofit, government, healthcare, staffing, retail, and hospitality. She also serves as General Counsel to the Commissioners of the Maryland Commission on Civil Rights and as an advisor to The Council for Federal EEO and Civil Rights Executives.

Colin Barnacle
Barnacle focuses his practice on labor and employment litigation, compliance counseling, corporate governance counseling and investigations, and non-compete and trade secret enforcement. He regularly advises and defends clients in response to the EEOC and the Office of Federal Contract Compliance Programs (OFCCP), including systemic discrimination investigations and related class actions. He has represented employers in all aspects of employment law before state and federal agencies and courts, including wage and hour collective/class actions under the Fair Labor Standards Act (FLSA), Title VII discrimination and sexual harassment, as well as actions under the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), and state workers compensation laws. He is also experienced in Older Workers Benefit Protection Act (OWBPA) compliance, Worker Adjustment and Retraining Notification Act (WARN) compliance during mass layoffs, and employee-related issues surrounding corporate transactions. Barnacle represents food companies throughout the supply chain, including growers/shippers, manufacturers, distributors, retailers and food service businesses.

Barnacle brings years of in-house legal experience having served as Division General Counsel for Americas Fresh Foods, The WhiteWave Foods Company (NYSE: WWAV), a leading consumer packaged food and beverage company, and as Assistant General Counsel for The Gates Corporation, a global diversified manufacturer of industrial and automotive products.

Denise Gavica Perez
Gavica Perez focuses her practice on corporate immigration matters, with a strong emphasis in the healthcare sector. She routinely counsels hospitals seeking to obtain non-immigrant and immigrant visas for employees including physicians, nurses, residents, pharmacists, fellows, medical technologists, as well as staffing agencies tasked with recruiting healthcare professionals. She also has 18 years of practice representing companies within the financial services, technology, sports and entertainment, hospitality, higher-education, construction and engineering sectors.

Gavica Perez regularly provides legal counsel to entrepreneurs and high-net-worth individuals regarding investment-based immigration, including the EB-5 Immigrant Investor Program, and she advises clients on the full range of immigrant visas, labor certifications, and U.S. citizenship matters. She has experience managing the immigration compliance programs for multinational corporations and institutions engaged in a wide range of activities and industries, including financial services, technology, sports and entertainment, higher-education, construction and engineering. She also has represented companies in connection with Department of Homeland Security (DHS), Form I-9 (Employment Eligibility Verification) audits, and Department of Labor/Wage and Hour Division immigration-related investigations.

Rory McEvoy
McEvoy focuses his practice on labor and employment matters, including litigation in federal and state courts and agencies. He routinely handles matters involving collective bargaining, arbitrations, unfair labor practices and union representation proceedings before the National Labor Relations Board (NLRB). He also represents clients in all aspects of the employment relationship, including non-compete litigation, breach of employment contracts, wage and hour matters and defamation.

McEvoy represents many of New York’s large hospitals and healthcare systems. He also represents clients in other sectors, including financial services, philanthropic religious organizations, technology and educational institutions, among others.

Akerman has welcomed 17 lawyers to its Labor & Employment Practice Group in less than 15 months, expanding nationally with additions in Chicago, Denver, Los Angeles, Miami, New York, Orlando and Washington, D.C. Other notable arrivals include Immigration Planning & Compliance Practice Chair Maria Casablanca in Miami; employment litigators Bran Noonan and Sarir Silver in New York, Lillian Chaves Moon in Orlando and Rachel Schumacher in Los Angeles.

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The ABA Journal reports that only 1 percent of plaintiffs who file federal job discrimination, harassment and retaliation claims win on the merits at trial, according to an analysis by the Lex Machina legal analytics firm.

The article by Stephen Rynkiewicz discusses Lex Machina’s new employment litigation search and analysis module that covers findings of hostile work environment, retaliation and Title VII issues such as race bias, as well as discrimination based on age, equal rights, military, pregnancy and rehabilitation.

“Lex Machina reviewed nearly 72,000 cases and found that nearly three-fourths them settle, while employers prevail on summary judgment 13 percent of the time,” writes Rynkiewicz. “In more bad news for plaintiffs, only 192 damage awards since 2009 included punitive damages.”

Read the ABA Journal article.

Some former NFL players are receiving pitches for legal help in receiving checks from the league’s legal sports history aimed at retirees who sued for lying about the dangers of concussions suffered by the players.

Ken Belson of The New York Times writes, “Some players may get very little, but others with severe neurological diseases may receive as much as $5 million. Now lawyers, lenders and would-be advisers are circling, pitching their services and trying to get a cut of the money.”

Some of the ex-players with severe neurological disorders are cognitively impaired and may not understand the terms used by the lawyers who make the pitches.

Read the NYT article.

Marc Perrone, president of the United Food and Commercial Workers International Union, sees Amazon the way some Rust Belt workers see global trade — as a threat to American jobs, reports The Washington Post.

Perrone was planning to file a complaint to the Federal Trade Commission, arguing that letting Amazon buy Whole Foods would trigger a wave of store closures and eventually quash customer choice, writes the Post‘s Danielle Paquette.

“The United Food and Commercial Workers International Union has roughly 1.3 million members across North America, working for retailers at a typical wage of about $18 an hour, including benefits,” according to Paquette. “Members are employed at stores such as Kroger, Safeway and Albertsons. Whole Foods, for contrast, isn’t unionized.”

Read the Post report.

Navex Global will present a complimentary webinar outlining the state of compliance training in 2017. The event will be Thursday, July 27, 2017, at 10 a.m. Pacific time/1 p.m. Eastern time.

“Employee compliance training is intended to create great culture – yet we are still seeing company after company in the headlines because of bad corporate culture,” Navex says on its website. “So where’s the disconnect?”

The webinar will address such questions as:

• What are advanced organizations doing to break through and help create an ethical culture through training?

• What issues threaten training effectiveness?

• How do I gain executive buy-in and decrease employee cynicism?

• How are companies measuring the ROI of training?

The presentation also will include benchmark data compiled from almost a thousand practitioners’ feedback about their training efforts.

Register for the webinar.

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In a blog post on nondisclosure agreements, Gregory W. McClune of Foley & Lardner addresses the questions: Does an employer have the legal means to prevent disclosure of information acquired during employment? Likewise, can an employer seek legal redress for such disclosures?

“Drafting and enforcing NDAs requires considerable thought, care, continual maintenance and a skilled legal advisor,” writes McClune. “It is an area rife with risks and traps; and employers who believe they can “gag” their employees, by simply requiring them to sign a broadly worded agreement with heavy penalties, may be in for a rude shock.”

His article discusses difficulties as dealing with the lack of uniformity among states in enforcing NDAs, and the lack of sympathy for employers in the courts.

Read the article.

Above the law and Lex Machina will present a webinar on trends and legal analytics for employment litigation on Thursday, July 13, at 12 p.m. EDT.

David Lat, founder of Above the Law, says the event will address such questions as: The What do recent political and economic changes mean for the employment litigation landscape? How can knowledge management and technological tools help litigators navigate the transformations in this sector?

Lex Machina is expanding its Legal Analytics to a new practice area, Employment Litigation, shedding light on this rapidly evolving area of law, Lat writes. The webcast will feature panelists discussing new employment litigation data, with never-before seen trends and insights about judges, parties, lawyers and law firms.

Register for the webinar.

By Natalie Lynch
Lynch Law Firm PLLC

Today, many people prefer texting over many other forms of communication such as calling or emailing the recipient. This is an efficient form of communication because individuals can send a quick message about something important to them within a few seconds rather than being busy on a call for several minutes. Despite its expedience, texting in the workplace can carry certain risks for employers and may pose some problems.

Potential Problems

One of the most serious concerns that employers have about texting in the workplace is its association with productivity. Employers do not want to see their staff distracted and busy concentrating on personal matters instead of the job at hand.

Another concern is that texting in the workplace can cause dangerous distractions. For example, employees may drive forklifts in industrial settings and may drive to complete sales calls or work errands. Texting while driving continues to be a major source of concern with distracted driving being the primary cause of accidents today.

Texting in the workplace also poses risks concerning privacy issues. Work videos sometimes go viral and often in a negative way for employers. Employees may send a video message to a friend, family member or rival that does not paint the employer in the best light. These messages can damage the company’s reputation. Also, confidential information or trade secrets may be stolen when employees take pictures of this information and send it to someone else.

Creating a Policy

Due to the many risks that texting in the workplace can cause, many employers may decide to institute cellphone policies that discuss the use of cellphones, texting and calling in the workplace. These policies set out the rules and expectations of the business. For example, there may be a complete prohibition on texting while driving for work purposes. Additionally, they may state that employees are not permitted to text while they are meeting with a customer or client in person. A common and important policy many employers implement is that no video or audio recording is permitted at work. The policy may outline certain disciplinary measures that the employer may have the discretion to take if the employee does not follow the rules. These actions may be progressive in nature, such as starting with a verbal warning and then moving up to a written warning. The employer should carefully consider a number of factors before implementing a cellphone policy in the workplace.

Considerations

While the simplest solution to avoid the problems texting in the workplace poses may be to ban all use of cellphones, this action will likely negatively impact employee morale. Many individuals depend on their cellphones to keep them in touch in important ways and employees may fear what to do in case of an emergency. A complete ban on cellphone use or texting may be considered antiquated and isolating to employees. When developing a policy for the business, it is important to consider the size of the business and the realistic ability to monitor employees’ observation of the cellphone policy. Additionally, the culture and type of business is important to consider.

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A federal judge in Manhattan has rejected DTI Global’s arguments that a sales team lured away by a competitor had misappropriated key trade secrets, such as its e-discovery clients’ purchasing needs, and denied its motion for a preliminary injunction, according to a Bloomberg Law report.

The four sales agents had gone to work for LDiscovery.

U.S. District Judge Jed Rakoff wrote in his opinion that he was “unpersuaded that LDiscovery has done anything improper by entering into these agreements with the Individual Defendants, let alone that the Individual Defendants have breached the applicable terms of their agreements with DTI.”

Read the Bloomberg article.

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Bryan K. Wheelock of Harness Dickey has posted an item on the firm’s website contemplating what perfection might look like in regard to an employee agreement.

“Lawyers strive for perfection in their work, but time constraints, budgets, and other factors work against us. Also, perfection is not always the same thing in every circumstance,” he writes.

He discusses such topics as confidentiality, non-compete clauses, non-solicitation, assignment of inventions, access to computers, the return of employer property and confidential information, and publicity and social media restrictions.

Read the article.

A former associate filed a national class action against Steptoe & Johnson, claiming the giant law firm pays only lip service to gender equality, but has a male-dominated leadership that discriminates against women in pay and promotions, according to a Courthouse News Service report.

Ji-In Houck, of Los Angeles, says her starting pay at the firm as a contract attorney was barely half the $165,000 that inexperienced male lawyers made — though she had come to Steptoe with two years of experience in civil litigation.

“During her three years in Steptoe’s Century City office, her salary typically was 30 percent to 40 percent less than male lawyers with comparable experience, she says in her June 22 complaint,” writes Don Debenedictis. “When she left in March 2016, she was earning $200,000 a year, compared to the $230,000 paid to men at her level.”

Read the Courthouse News article.