Zapproved has made available for free download its Legal Hold and Data Preservation Benchmark Survey Report, the industry’s most extensive survey series focused on legal data preservation and collections practices. Building on the 2013, 2014 and 2015 studies, more than 600 professionals dealing directly with litigation hold management participated.

The report has findings on the demographics, processes, common pain points and risks associated with legal holds, data preservation and data collection. Some of the key findings include:

• A strong response showing a vast majority of automated users feel “confident” or “very confident,” compared with 59% of manual users — a huge 26% difference.

• Respondents using automated systems trust custodian compliance at 76% versus just 56%, more than double the spread from 2015 which was 9.8%.

• In looking at a “culture of compliance,” 69 percent of survey respondents said they conduct some form of training for employees. This is down from 2015’s 75 percent but on theaverage for the three years this question has been part of the survey.

• When looking at intention to upgrade, manual users are 60% more likely to express a desire to do so compared to automated users. The gap closed slightly from 2015 which saw this at 67 percent.

Download the report.

The news of Gretchen Carlson‘s $20 million settlement with 21st Century Fox is sending shock waves through the legal world, especially in employment and labor law circles, according to a LawNewz.com report.

Rachel Stockman spoke with several legal experts about the settlement, including one who called this a “watershed moment for sexual harassment cases.”

Some of the experts said the case could open the door to more sexual harassment claims in the workplace, and some were surprised by the high dollar amount that 21st Century Fox agreed to pay.

The article quotes Washington, DC, employment lawyer Tom Spiggle as saying this case could convince victims of sexual harassment that the laws on the subject still have teeth.

Read the article.

Kerrie L. Campbell brought more than two decades of experience in consumer product safety and product defamation litigation when she joined the Washington office of the Chadbourne & Parke in January 2014, but she contends that other Chadbourne partners shut her out of leadership positions and paid her far less than male partners at her level, reports The New York Times.

“After being told this year that she would be terminated, she sued in federal court on Wednesday, asking for a total of $100 million on behalf of herself and other female partners who, she said, receive less compensation than male partners even when they bring in more client revenue,” writes Elizabeth Olson. “A five-man management committee at the firm arbitrarily awards male partners more points, which translate into higher dollar compensation, than they do to women, she maintained.”

In a statement responding to the suit, Chadbourne denied the gender discrimination claims, saying her complaint against the firm is riddled with falsehoods and “will be shown to be completely baseless.”

Read the article.

Bloomberg Law reports that salaries for in-house attorneys are increasing by more than four percent annually, but almost half are still unhappy with what they’re being paid, according to a survey released this week.

The BarkerGilmore survey of trends in legal department compensation also asked in-house attorneys to compare themselves to firm lawyers by asking them to rate their pay relative to their “peers.”

“While their salaries are going up at a rate of 4.2 percent across industries — well above the U.S.’s 2015 inflation rate of 0.1 percent — 44 percent of respondents said their compensation, including cash bonuses and equity awards, is ‘below or significantly below that of their peers,’ ” reports Bloomberg’s Blake Edwards.

The survey found that lawyers in the services industry reported the highest dissatisfaction rates, while lawyers in the energy sector were most likely to be looking for new jobs.

Read the article.

A Texas-based legal recruiter is seeking up to $1 million in damages from a Holland & Knight partner, saying the lawyer broke his promise and used another headhunter to place him at the firm after the recruiter discussed the opportunity with him.

Legal recruiter Sean Cassidy’s suit against Dean Schaner alleges breach of contract, fraud and negligent misrepresentation.

“The [law firm] that we contacted you about… I would just ask that… since we contacted you about it, I always ask two things Dean,” said Cassidy, according to a recording played for Bloomberg Law. “One, I ask that if it’s something you ultimately decide to pursue, I just ask that you work through me on it.”

The Bloomberg article by Casey Sullivan reports:

“When contacted about Cassidy’s recording and overall litigation, Schaner wrote in an email Tuesday that the sound clip was a ‘misleading partial conversation,’ that he ‘never agreed to pursue the opportunity through Cassidy’ and furthermore, ‘never disclosed [Holland & Knight] to anyone.’ ”

Read the article.

Ernst & Young LLP cannot require its employees to give up their rights to pursue work-related claims together, a federal appeals court has ruled, giving a major boost to the U.S. National Labor Relations Board’s campaign against so-called class action waivers, reports Reuters.

“Companies have increasingly included provisions in employment contracts forcing workers to arbitrate claims individually as a way to avoid the cost of litigating class actions,” writes Robert Iafolla. “The NLRB has struck down such requirements imposed by dozens of companies, including American Express Co, Citigroup Inc and Domino’s Pizza Inc.”

The court found that the arbitration agreement violated the National Labor Relations Act by making workers arbitrate work-related claims as individuals in separate proceedings.

Read the article.

Quarles & Brady LLP announced that Peter F. Asaad has joined the firm’s Washington, D.C. office, concentrating on immigration in its Labor & Employment Practice Group.

Asaad focuses on representing corporate clients and individuals on all business-related and employment-based visa matters. He represents U.S. companies and multinational corporations in helping manage their employees’ employment eligibility needs and develop effective streamlined immigration and compliance programs. He also specializes in the needs of immigrant entrepreneurs, start-ups, and foreign investors in creating U.S. subsidiaries and affiliates as well as new U.S. businesses. He has additional expertise in advising individuals with employment and family-based immigration, asylum, deportation, and other immigration matters.

He received his law degree, cum laude, from the American University, Washington College of Law and his bachelor’s degree, cum laude, from the University of Rochester.

Barnes & Thornburg has added partner Fred Schwartz to its Chicago office as a member of the Labor & Employment Department. Schwartz joins from Littler Mendelson, where he was a founding member of the Chicago office and once served as managing shareholder.

Schwartz is the seventh partner and 12th attorney overall to join the firm’s Chicago office this year, the firm announced.

Schwartz concentrates his practice on labor and management relations and regularly handles proceedings before the National Labor Relations Board, including representation elections and unfair labor practice charges, as well as collective bargaining and arbitrations. On the other side of the coin, he regularly counsels employers that wish to maintain a union free workplace, and is engaged to perform workplace audits and training for members of management.

Schwartz counts among his clients many leading manufacturers, wholesalers, retailers, healthcare providers, and construction and transportation companies, for whom he conducts management and union avoidance training and provides compliance counsel.

“When it comes to the most complex matters facing employers, Fred is among the best and is a relentless advocate on behalf of his clients,” said Mark Rust, managing partner of Barnes & Thornburg’s Chicago office. “He joins the firm’s deep bench of labor and employment practitioners and is the latest example of our significant growth trajectory in Chicago.”

He received his J.D., cum laude, from the University of Minnesota Law School and his B.S. from Cornell University’s School of Industrial and Labor Relations. He is admitted to practice in the state of Illinois and before the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth, Sixth and Seventh Circuits, and the U.S. District Courts for the Northern District of Illinois and the Eastern District of Wisconsin.

Image by Gage Skidmore

Donald Trump’s power to nominate Supreme Court justices if elected to the White House is a threat to women workers, equal pay advocate Lilly Ledbetter and two union officials said, according to a report by Bloomberg Law.

Ledbetter was a former Goodyear tire plant supervisor who sued her employer after she discovered she was making less than her male colleagues after 20 years on the job. She lost that pay discrimination case at the Supreme Court in 2007. Congress responded by passing the Lilly Ledbetter Fair Pay Act to allow more time for claimants in federal pay bias claims.

“Ivanka Trump said during the Republican Convention that her father would likely look at the the pay bias issue,” reports Bloomberg’s Chris Opfer. “The AFL-CIO’s Shuler blasted the GOP nominee, however, for later saying on the campaign trial that he would expect his daughter to leave her job if she was being discriminated against.”

Read the article.

Health officials reported the first spread of the Zika virus from state to state when a Texas man got the disease after visiting a section of Miami where mosquitoes have been spreading Zika.

The Zika virus can cause brain damage and other birth defects in infants if the mother is infected during pregnancy. While its dangers first appeared in Brazil, its spread to the U.S. has magnified questions about risk, including to workers whose employers want them to travel.

For example, what steps are employers legally required to take if they need an employee to travel to a hot zone? What is the liability if an employee contracts the disease, which also can be sexually transmitted and spread when a mosquito bites an infected person and carries it to someone else?

Androvett Legal Media & Marketing has posted an article on its website quoting Justin Markel, a labor and employment lawyer in the Houston office of Roberts Markel Weinberg Butler Hailey PC:

“Under the Occupational Safety and Health Act, employees may refuse to work in certain circumstances when working conditions are dangerous. Among other things, the employee must genuinely believe that an imminent danger exists, and there must be a real danger of death or serious injury. Because of the way Zika is transmitted and the availability of preventive measures, it is unlikely that an employee could refuse to travel on this ground – unless the employee is pregnant.

“However, employers should be cautious when an employee refuses such a work assignment. An employee could argue that she is protected by OSHA and is shielded from adverse employment actions.”

Markel says that employer liability depends in part on participation in the worker’s compensation system. In Texas, employers have the option of whether to participate, he notes. “If the employee is covered by workers’ comp insurance, and if it could be proven that the employee contracted Zika while working, then the employee may have a workers’ comp claim. That would also mean that workers’ comp benefits are the employee’s exclusive remedy.

“If the employer does not subscribe to workers’ comp, then the employer may be liable for failing to provide a safe work environment if the employer does not take reasonable precautions to protect against Zika exposure,” he says.

Markel says employers with workers in affected areas should focus on educating their workforce about precautionary measures. OSHA has published helpful guidance here. Employers should try to limit standing water near worksites, and employees working outside should use mosquito repellant and wear long sleeves and pants.

Image by NY Photographic

Some big law firms have increased salaries of first-year associates to $180,000 in an effort to lure the best recruits, but now some of those firms are raising the bar by offering benefit packages that include flexible schedules, child care and elderly care assistance, student loan assistance programs, paid parental leave, unlimited paid vacation, private banking, subsidized gym membership and career and family coaching services, reports Bloomberg Law.

Reporter Carmen Castro-Pagan quotes Orrick, Herrington & Sutcliffe’s chief talent officer as saying :the war for talent is intensifying,” as she explains that declining law school enrollment and low LSAT scores result in fewer of the most talented students are entering the profession.

Orrick now offers primary caregivers 22 weeks of paid parental leave and up to nine months of job protection.

White & Case LLP has an adoption assistance program that allows employees to set aside pretax dollars of up to $13,460 to help offset adoption expenses, and Goodwin has a program to help lawyers and professional staff refinance and consolidate their student loans. Other benefits can include on-site fitness centers, career counseling, flexible vacations, and travel and living expenses, the Bloomberg article reports.

Read the article.

U.S. Transportation Secretary Anthony Foxx

Bloomberg Law examines a lawsuit involving U.S. Transportation Secretary Anthony Foxx, who is the target of an attempt to recover salary Foxx collected during his three-and-a-half year tenure as deputy general counsel at a now-defunct company.

“From 2009 to 2013, Foxx worked as a deputy general counsel at the bankrupt Charlotte bus maker DesignLine. During that time, he also served as mayor of Charlotte on a part-time basis, writes Gabe Friedman. “Now, the liquidating trustee in bankruptcy court is seeking to recover his pay — as a fraudulent transfer — during a three-and-a-half year stretch.”

The salary in question works out to $309,760, or $88,502.86 per year.

“The parties in the case have agreed to participate in a voluntary, non-binding mediation in Charlotte that will occur on or before Sept. 30, according to an order filed in federal bankruptcy court this month,” according to The Charlotte Observer.

Read the article.

HR Daily Advisor will present a complimentary webinar discussing what the overtime changes mandated by the U.S. Department of Labor FLSA mean for employers and recommend strategies for meeting these new challenges.

The event, sponsored by Kronos, will be Thursday, August 25, beginning at 2 p.m. EDT.

The overtime changes will extend overtime pay protections to more than four million American workers, HR Daily Advisor says on its website. The implications are enormous, affecting everything from job classifications and time tracking to compensation and compliance policies.

Register for the webinar.

NAVEX Global’s 2016 Ethics & Compliance Training Benchmark Report shows compliance professionals struggling with small budgets, growing numbers of learners and limited time to train.

The company offers the report for downloading at no charge.

NAVEX says this benchmarking data can be used to measure a company’s program against its peers, and come away with strategies to solve key training challenges.

The ethics and compliance training benchmark report:

• Helps you make data-based decisions about who, when and how much to train
• Pinpoints emerging training topics and strategies to watch
• Reveals common program gaps and offers real-world solutions for tackling them

Download the report.

In a rare case interpreting the Worker Adjustment and Retraining Notification Act “sale of business” exception, the 8th U.S. Circuit Court of Appeals recently held in Day v. Celadon Trucking Servs., Inc. that a buyer of a business remained liable under WARN to the seller’s employees to whom the buyer did not make offers of employment, despite provisions in the asset purchase agreemen that placed all WARN Act liability on the seller, according to Epstein Becker & Green.

In the firm’s Financial Services Employment Law blog, Marc A. Mandelman wrote that the case involved a typical asset purchase transaction between Continental Express, Inc. and Celadon. Plaintiffs were a class of 449 former Continental employees who were not offered jobs with Celadon after the purchase of Continental’s trucking business.

“The key takeaway of the Day case for parties to a corporate transaction is that WARN liabilities are governed by statute, and the implications of WARN obligations and the sale of business provision of WARN must be carefully evaluated,” according to Mandelman.

Read the article.

Wearable electronic monitoring devices have been long used to help monitor an individual’s health and fitness, writes Karen Turner for The Washington Post. “But now wearable use is becoming increasingly common in the workplace to record, analyze and enhance worker productivity, raising concerns among lawyers and labor specialists who feel that it’s a step toward stripping employees of workplace rights.”

She quoted from a recent study by customer management software company Salesforce showing that 86 percent of U.S. companies plan to invest more in wearable applications on the job this year. And 40 percent are considering using wearables to monitor employee time management and real-time employee communication.

But some labor lawyers are concerned about unintended legal consequences. For instance, some employees might not be meeting productivity standards due to a medical condition or disability. And employers could be sued simply because they have access to physical data about their employees.

Read the article.

Employers should be aware that the Uniformed Services Employment and Reemployment Rights Act of 1994 modifies at-will employment by creating a “for cause” standard of discharge for veterans who return to work after a month or more of military service, according to Orrick’s Employment Law and Litigation Blog.

A returning  veteran who served 30-180 days may not be discharged except for cause for six months following return to work, according to the article by Christopher Wilkinson, Mark Thompson and Joshua F. Naylor. Veterans returning after more than 180 days of service are afforded the same protection from discharge for one year.

“Employers need to make sure that Human Resources and managers understand the full range of obligations with regard to returning veterans and perhaps consider a coordinated or centralized approach to their reemployment,” they write. “In some cases, compliance with the complexities of the statute may require advice of counsel.”

Read the article.

Eric Goldman, writing in the Technology & Marketing Law Blog, discusses a case in which an employer successfully sued two departing employees for joining a competitor. The employer based its suit in part on a non-compete clause included the stock option grant documentation presented to employees electronically.

“We already knew that clickthrough agreements work really well in the B2B and B2C contexts,” writes Goldman. “Thus, it’s not surprising that clickthrough agreements also work in the employment context, at least so long as they are supported by consideration (and stock option grants usually, if not always, will provide sufficient consideration for additional contract terms). Although ink-signatures-on-dead-trees remains the gold standard for forming contracts with employees, forming contracts with employees online is probably a better method than some other traditional techniques, such as circulating employee handbooks or memos and embracing the fiction that an employee continuing to show up at work constituted acceptance. A clickthrough agreement provides tangible evidence that employees ‘got the memo’ (even if they chose not to read it); and the fact that no one reads online contracts is inconsequential in the context of employee handbooks, which are also widely celebrated as documents that no one reads.”

Read the article.

An article written by Deborah H. Share for Porzio, Bromberg & Newman‘s Employment Law Monthly reports that employers cannot contract with employees to reduce limitations periods for discrimination claims, according to a recent New Jersey Supreme Court decision.

According to the facts of the suit as presented to the court, a job applicant signed an application form that included language that appeared to waive any statute of limitation in the filing of a lawsuit against the employer. The language limited the applicant to a deadline of six months from the date of any alleged employment action that was the subject of a suit.

Share’s article detailed the court’s reasoning and listed and discussed three recommendations for employers to consider: remove such waivers from applications, shore up all processes related to employee terminations, and consider other useful tools for employers in this area.

Read the article.

Image by Mike Mozart

Sports Authority’s creditors and the Justice Department have challenged the fading retailer’s plans to pay top executives as much as $2.85 million in bankruptcy bonuses, according to a Dow Jones Newswires report in The Denver Post.

Sports Authority once operated 460 athletic-gear but filed for bankruptcy protection and began going-out-of-business sales in an effort to pay its debts. As the liquidation entered its final weeks, Sports Authority unveiled plans for bonuses for four unnamed top executives.

“The bonus money is needed to encourage the executives to do their best in the company’s final days, according to Sports Authority’s lawyers. Confidentiality is appropriate to protect morale, and prevent competitors from using the pay data to lure Sports Authority’s leaders away, the company contends,” the report says.

Read the article.