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The U.S. Supreme Court has agreed to decide whether companies can use employment contracts to prohibit workers from banding together to take legal action over workplace issues, reports The New York Times.

Adam Liptak writes that the court will consider three cases that follow a series of Supreme Court decisions endorsing similar provisions, generally in contracts with consumers. The question for the justices in the new cases is whether the same principles apply to employment contracts.

“In both settings, the challenged contracts typically require two things: that disputes be raised through the informal mechanism of arbitration rather than in court and that claims be brought one by one,” Liptak writes. “That makes it hard to pursue minor claims that affect many people, whether in class actions or in mass arbitrations.”

Read the NYT article.

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When a nonprofit suspects that someone in the organization might be engaged in wrongdoing, it can be particularly traumatic because the nonprofit team works together to make the world a better place, according to an article published by Lynch Service Company. If someone on the team is accused of fraud, embezzlement, or harassment, leadership handle an investigation carefully and appropriately.

Nonprofit investigations are often unique because volunteers might be important witnesses, and the nonprofit might not be able to learn much about the situation if volunteers don’t cooperate with the investigation. Since volunteers are often critical witnesses, is it possible for nonprofits to require them to cooperate with an investigation? In order to answer that question, we begin by considering whether or not an organization is able to compel employees to cooperate with an investigation. After all, if employees cannot be forced to speak with an investigator, it seems unlikely that a nonprofit could require cooperation from volunteers.

The article continues with a discussion of the obligations and rights an organization has with regards to volunteers.

Read the article.

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Practical Law and the Wage & Hour Defense Institute will present a free 75-minute webinar providing guidance on minimum wage and overtime pay exemptions applicable to sales employees under the Fair Labor Standards Act.

The event will be Wednesday, Jan. 25, at 1 p.m. Eastern time.

Speakers Paul Bittner of Ice Miller LLP (Columbus, OH) and Lawrence Peikes of Wiggin and Dana LLP (Stamford, CT), both members of the Wage & Hour Defense Institute, will discuss the sales exemptions, how to properly classify and compensate employees with sales duties, and the impact of improper classification, including:

• Understanding key elements of the exemptions.
• Defining “outside” sales.
• Distinguishing sales and sales-related activities.
• Defining a “retail or service establishment.”
• Structuring compensation.
• Identifying compensation “representing commissions.”
• Revisiting pharmaceutical sales and auto service advisors.
• Dealing with misclassified employees.
• Complying with differing state law.

A short Q&A will follow.
Presenters:
Paul Bittner, Partner, Ice Miller LLP (Columbus, OH)
Lawrence Peikes, Partner, Wiggin and Dana LLP (Stamford, CT)

Moderator:
Suzanne K. Brown, Senior Legal Editor, Practical Law Labor & Employment

Register for the event.

By its very nature, a workplace investigation is an inquiry; a search for the truth behind complaints or concerns received, according to an article published by Lynch Service Company.

Recognizing the need for such an inquiry is sometimes straightforward. In a typical circumstance, an employee may file a complaint with the human resources department. It then becomes the organization’s responsibility to evaluate the legitimacy of that complaint through investigation.

Often times, the organization even has a legal responsibility to investigate the response. In other situations, symptoms of a larger problem may arise more subtly: through turnover, diminished performance, increased absenteeism, etc. In the day-to-day hustle and bustle of meeting deadlines and managing crises, these symptoms sometimes go overlooked.

A “head in the sand” approach is not advisable; do not make the mistake of assuming all is well so long as no one is making formal complaints. The organization interested in minimizing its legal exposure maintains a responsibility for assuring symptoms are recognized and properly investigated and resolutions are implemented.

The article discusses some basic principles for properly conducting a workplace investigation.

Read the article.

Practical Law will present a complimentary 75-minute webinar providing insights into recent developments and expected trends in the evolving the legal landscape of marijuana law. The event will be Wednesday, January 18, 2017 at 1 p.m. EST.

“With the expansion of the number of medical and recreational marijuana states, businesses are in need of basic employment law counsel on the crossroads between marijuana use and workplace management,” Practical Law says on its website. “Currently 30 states and the District of Columbia have legalized medical marijuana use and 8 states now allow for recreational use. American companies are left to determine how these new requirements apply to their workforce and what sort of policies and procedures would best suit this new legal environment. This webinar will be a fast paced walk through of the 7 steps employers should take to balance compliance and the need to protect their workplaces from the adverse effects of employee marijuana use.”

Topics will include:

• Safety sensitive and other work-related risks associated with marijuana use.
• An overview of marijuana laws and applicable cases in the states where employees report for duty.
• Protocols for upgrading job descriptions to include critical essential function safety language directly applicable to marijuana use.
• Integration of marijuana use safety concepts into supervisory training.
• Creating an appropriate drug free workplace policy option when dealing with marijuana.
• Understanding the inter-play between the ADA and workplace drug testing employer obligations.
• Putting all the puzzle pieces into place to form your compliant legal strategy to effectively address marijuana in your workplace.

A short Q&A will follow.

Presenter:
Thomas M. Eden III, Partner, Constangy, Brooks, Smith & Prophete, LLP
Tommy Eden works in the Firm’s Workplace Drug & Alcohol Testing Practice Area and has developed employer Policies in all 50 states and all DOT Agency modes. Tommy is a national speaker on the subject of Marijuana in the workplace and many other workplace drug testing topics.

Moderator:
Kate Bally, Director, Practical Law Labor & Employment
Kate Bally joined Practical Law from Littler Mendelson P.C., where she worked as an associate in the employment group. Previously she was also an associate at Day Pitney LLP and a law clerk to the Honorable Stefan R. Underhill. Kate is Co-Director of Practical Law’s Labor & Employment Service.

Register for the webinar.

An informal guidance from the U.S. Equal Employment Opportunity Commission reminds employers of the commission’s expansive interpretation of what constitutes a reasonable workplace accommodation, reports Seyfarth Shaw LLP in its Employment Law Lookout blog.

Author Bridget M. Maricich advises that employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

“The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations,” she writes.

Read the article.

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Employers who don’t want employees to arbitrate employment-related claims shouldn’t bury the agreement in an employee handbook that includes a disclaimer stating that the handbook is not a contract, advises Business Management Daily.

That’s because a court could conclude that the conflicting language means the arbitration agreement isn’t binding.

The article describes a recent case in which an employer asked the court to send the case to arbitration, arguing that the employee knew about the arbitration requirement that was included in a handbook.

“The court didn’t see it that way. It reasoned that to be binding, the arbitration clause had to demonstrate clear mutual assent,” according to the article.

Read the article.

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A lawyer for former National Football League players seeking damages and medical treatment for brain injuries suffered while playing football says the U.S. Supreme Court’s rejection of a legal challenge to a $1 billion settlement from the NFL means players can get the help they need, according to a post on the website of Androvett Legal Media & Marketing.

Matthew Matheny, a lawyer with Provost Umphrey LLP in Beaumont, who represented some of the players said:

“We are very pleased that today the United States Supreme Court rejected the appeals of a very few objectors to the NFL concussion settlement. The court’s decision should allow the settlement to become final and effective, meaning that thousands of former players will soon have the opportunity to receive the medical screening, diagnosis and treatment – as well as the compensation – they deserve. We expect the details of the baseline assessment and compensation programs to be forthcoming.”

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The U.S. Supreme Court will is hearing arguments in a case that could upend the common practice that ranks lenders, employees and other creditors in order of priority as they try to recover their money when a company files for bankruptcy, according to a New York Times article.

“The case has attracted wide attention from academics, workers’ groups and state tax authorities,” writes Libby Lewis. “A decision could affect how much power bankruptcy courts have to approve settlements that do not follow the conventional order of creditor priority and potentially block some parties, in this case the company’s former employees, from any financial recovery.”

The court is hearing Czyzewski v. Jevic Holding Corporation.

Read the NYT article.

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Many employers received a last-minute reprieve from new federal overtime rules that would have gone into effect Thursday, Dec. 1, entitling thousands of previously “exempt” workers to overtime pay. But the Texas federal judge’s temporary injunction creates uncertainty for businesses preparing for the employment compliance playing field going forward, according to a post on the website of Androvett Legal Media & Marketing.

In a client alert, employment attorney Audrey Mross of Dallas’ Munck Wilson Mandala notes that many employers had already revised workers’ pay to comply with the Department of Labor’s overtime rule. Businesses that have not yet implemented changes now have breathing room to wait for a final ruling from the courts. However, those that have already altered employee pay should think carefully before reversing already announced pay changes.

“If a pay increase was already announced or implemented, and you are considering putting it on hold, there are further considerations that may not apply such as employee relations, an angry or confused employee seeking legal counsel, state laws requiring written notice prior to reducing pay, and collective bargaining on pay issues,” Mross says.

Read the Munck Wilson client alert.

Biglaw’s compensation leader, Cravath Swaine & Moore, announced its 2016 year-end bonuses for associates this week, and the list has a familiar look, reports Above the Law.

“But there is, of course, one huge difference: back in June, Cravath raised base salaries for its associates, a move that led dozens of firms around the country to hike associate pay,” writes David Lat.

He added announced bonuses to new salaries and concluded that a first-year associate at Cravath will earn around $180,000 in total compensation.

“At the top of the scale, an eighth-year associate will earn almost $400,000 in total compensation ($280,000 for the first half of the year, $315,000 for the second half of the year, and $100,000 in bonus money), up from $380,000,” he writes.

Read the Above the Law article.

A Texas judge’s decision to block sweeping new overtime rules hadn’t been out for two hours Monday evening before Philadelphia employment lawyer Gina Ameci started getting phone calls from her employer clients, reports The Philadelphia Inquirer.

Now what? “As of today, there is no law,” she said. “Anything is possible.”

“The judge’s decision came as a relief to industry groups, such as the Retail Industry Leaders Association, one of the 50 business groups that had sued the U.S. Labor Department,” writes reporter Jane M. Von Bergen.

“Ameci said her clients, now faced with a period of uncertainty, would now have to weigh their risks. Should they roll back new policies to save money and then face potential liability if the regulation is ultimately upheld? That risk might be worth it, she said, for nonprofits who often have people doing professional work, but earning in the $35,000 a year range,” the report says.

Read The Inquirer‘s article.

Practical Law will present a free 75-minute webinar in which Mark A. Bodron, Baker Botts LLP, Gia G. Norris, Practical Law, Elizabeth A. Gilman, K&L Gates and Judy Hensley, Roberts & Holland, will provide a practical roadmap for counsel to employers on best practices for advising clients on pension and welfare plan overpayments.

The event will be Tuesday, Dec. 6, at 1 p.m. Eastern time. See the registration page for CLE status.

Participants of this program will:

• Review common scenarios in which pension and welfare plan overpayments arise.
• Gain an understanding of the legal framework and correction procedures governing pension plan overpayments, including potentially thorny tax issues that impact your employees.
• Learn practical strategies to protect your clients from the most recent wave of litigation in the self-funded group health plan context.

A brief Q&A session will follow.

Presenters:

Mark A. Bodron, Partner, Baker Botts LLP
Mark Bodron is a partner in the Houston office of Baker Botts. His practice concentrates on the areas of employee benefits and executive compensation. Bodron advises clients on all aspects of qualified retirement plans, including 401(k) plans, ESOPs and cash balance plans, nonqualified plans, stock-based plans and deferred compensation and other executive compensation arrangements, including issues related to Section 409A deferred compensation rules and Section 162(m) performance-based compensation. Bodron’s practice also includes advising clients on health and welfare plan matters, including compliance and reporting issues related to the Affordable Care Act, COBRA and HIPAA. He frequently advises clients on ERISA fiduciary and prohibited transaction matters and represents clients before the IRS, DOL and PBGC on matters related to employee benefits.

Gia G. Norris, Senior Legal Editor, Practical Law Employee Benefits & Executive Compensation
Norris joined Practical Law from Roberts & Holland LLP, where she was a senior employee benefits and executive compensation associate. Previously she was an employee benefits and executive compensation associate at both White & Case LLP and Proskauer Rose LLP. Norris is the Website & Technology Chair of the Employee Benefits Committee of the America Bar Association’s Section of Taxation. She is also a member of the Employee Benefits Committee of the Tax Section of the New York State Bar Association.

Norris received her Juris Doctorate from the University of Pennsylvania Law School and her Bachelor of Arts from Johns Hopkins University in Political Science and Women’s Studies.

Elizabeth A. Gilman, Associate, K&L Gates LLP
Elizabeth Gilman is a litigation associate in the firm’s Houston office. She focuses her practice on commercial disputes and is uniquely qualified in disputes involving the energy sector, especially oil and gas. Her technical education and experience enhances the value of her representation and counsel. She earned her undergraduate degree from Purdue University, majoring in industrial management with an emphasis in manufacturing. Gilman excels in her ability to work with clients and experts in complex fields. Gilman has experience in all phases of the dispute process which allows her to provide comprehensive representation for her clients. She has experience in early dispute management, litigation and arbitration through the appellate process and collection. She has tried cases both in front of a jury and an arbitrator. On behalf of her clients, she brings a high level of experience in energy litigation, and both on-shore and off-shore construction disputes. Gilman’s experience in contract negotiation and drafting further contributes to the value of her representation to her clients. Her experience spans many forums, including mediation, state and federal court, and domestic and international arbitration.

Judy Hensley, Associate, Roberts & Holland LLP
Judy M. Hensley concentrates on a wide variety of employee benefits and executive compensation matters in both the transactional and compliance contexts. She advises on tax, ERISA and other legal considerations relating to employee benefit plans, programs and arrangements, including design, administration and compliance of tax-qualified plans. She has advised clients on ERISA fiduciary matters for investment funds and plan fiduciaries. Her experience includes the structuring and design of equity compensation arrangements, including stock options, stock appreciation rights, restricted stock, restricted stock units, phantom stock, performance shares and LLC/partnership interests (including profits interests) and nonqualified deferred compensation plans, as well as executive employment, severance and change-in-control agreements. She also has advised clients on compensation and benefits issues unique to bankruptcy and restructuring transactions.

Register for the webinar.

The $100 million discrimination lawsuit filed against the New York-based international law firm Chadbourne & Parke over claims that female partners are paid less than their male counterparts is less about gender than employment status, according to Sarah Bradbury, senior counsel at Dallas litigation boutique Estes Thorne & Carr PLLC.

An article published by Androvett Legal Media & Marketing quotes Bradbury:

“While it is becoming increasingly easy to create an employment relationship and characterize an independent contractor as an employee, an equity partner cannot be categorized as an ‘employee,’ making it very difficult to prevail in this case. However, if a similar lawsuit were brought by income level partners, it becomes a very different case.

“Gender pay disparity may be real at this particular firm specifically or within the legal profession generally. However, even if the disparity exists, in this instance, because the attorneys are not employees of the firm, they simply have no employment discrimination route to pursue,” adds Ms. Bradbury, who is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

In the months since Cravath Swaine & Moore hiked starting salaries for first year associates by 11 percent to $180,000, law firms across the country raised their associate compensation scale to match — and now those pay increases are showing up as profit growth slows at some law firms, according to a new report on the first three quarters of 2016 compiled by Citi Private Bank.

“This is the first quarter we have an opportunity to see that,” David Altuna, a senior vice president and client adviser in the Citi Law Firm group, told Bloomberg Law.

“Altuna said that the associate salary hikes, which started in July and continued to spread during the summer, are causing expenses to grow faster across the industry,” writes Gabe Friedman. “While the most elite firms have been able to grow revenues faster than expenses, all other firms felt the strain of high lawyer compensation expenses.”

Friedman provides a transcript of his interview with Altuna.

Read the Bloomberg article.

While at first glance, an engagement with the federal government may appear lucrative, the venture comes with many strings attached, and the cost of compliance with the rules can quickly outweigh the financial benefit of the contract itself, warns Jennifer S. Cluverius in an article on the website of Nexsen Pruet, LLC.

She writes that a lack of experience can lead a federal contractor or subcontractor can encounter these pitfalls.

The article discusses some of the most costly and often-unnoticed employment-related compliance obligations.

Read the article.

“State Call to Action on Non-Compete Agreements” is the White House’s latest in a series of Executive Branch missives decrying the purported misuse of non-competition agreements by employers across the country, according to an article posted on the website of Jackson Lewis P.C.

Authors Clifford R. Atlas, David M. Walsh and Erik J. Winton write that the latest call to action repeats some of the Administration’s earlier conclusions on the subject: “including the view that use of non-compete agreements artificially restrict competition, restrict worker mobility, create barriers to changing jobs and weaken employees’ bargaining power. The stated goal of the White House issuances on non-competes is to address wage stagnation and boost the economy.”

“Many attorneys who represent companies in restrictive covenant litigation find the Administration’s conclusions and stated concerns about the evils of non-compete restrictions puzzling,” they write.

Read the article from Jackson Lewis.

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When it comes to arbitration provisions in employment agreements, one size does not fit all. Arbitration has significant advantages and disadvantages. Deciding whether to include an arbitration provision in an employment agreement requires thorough consideration based upon an employer’s individual circumstances, according to a post in Trenam Law’s Employment Law Update.

The article discusses some of the pros and cons of adding such provisions.

Among the pros are class-action waivers, potential time savings and privacy. On the other hand, there’s the consideration of costs, because some employment arbitration regimes allocate many of the costs to the employer.

Read the article.

The doctrine of void contracts arose recently in an employment case in Florida, Griffin v. ARX Holding Corporation, writes Jason M. Knott for Zuckerman Spaeder LLP.

In that case, the plaintiff, Nicholas Griffin, had a prior conviction for extortion. ARX Holding hired him as its chief financial officer in 2009. But under federal law, an individual commits a crime if he has been convicted of a felony involving dishonesty and then willfully participates in the insurance business. Knott explains that Griffin could have obtained a waiver from insurance regulators, but he was unable to do so.

ARX fired Griffin, who sued, seeking an unpaid $215,000 bonus. But a court ruled that his employment contract was void from the outset.

Read the article.

Some women who filed gender discrimination claims against their law firms all said they were alienated to varying degrees for speaking out and taking action about what they experienced, according to a report by Bloomberg Big Law Business.

One of those interviewed, Kamee Verdrager, was an associate at Mintz Levin Cohn Ferris & Popeo when she sued the firm on claims of gender bias in 2009.

“Verdrager said Mintz Levin made specific efforts to discredit her after she filed her suit accusing them of demoting and then firing her because of her gender,” writes Stephanie Russell-Kraft. “Among other things, Verdrager alleges a male partner made sexually explicit comments toward her, and that she later received negative performance reviews because of a pregnancy.”

After firing her, Mintz Levin reported Verdrager to the Massachusetts Board of Bar Overseers for allegedly downloading private firm documents, but the board unanimously cleared her.

The article discusses the cases of other women who had similar experiences.

Read the article.