Drinker Biddle offers a discussion of 10 points to think about in drafting employment agreements that often go overlooked. The white paper is published on the firm’s LaborSphere blog.
The paper covers such topics as severance, fixed term, restrictive covenants, cause, good reason provision, award equity, state law and venue selection, assignment, and more.
Partner David J. Woolf of Philadelphia wrote the paper.
The U.S. Department of Labor recently announced the results of a 2014 enforcement initiative that focused on the oil and gas industry in New Mexico and west Texas, an effort that recovered more than $1.3 million owed to some 1,300 employees as a result of this investigation.
On its website, Vorys, Sater, Seymour and Pease said this is not the first DOL foray into wage-and-hour practices within the oil and gas industry. In December 2014, the DOL announced that employers engaged in natural gas extraction in the Marcellus Shale region of Pennsylvania and West Virginia agreed to pay $4,498,547 in back wages to 5,310 employees.
Employment Screening Resources offers a complimentary white paper that provides an informative introduction to international background screening, what risks employers conducting such screenings should be aware of, and the many ways background screening overseas differs from background screening in the United States.
Employers in the United States have long recognized that conducting due diligence on new hires with background screening is a mission critical task, ESR says on its website. “However, with the mobility of workers across international borders it is no longer adequate to conduct these background screening checks just in the United States. Background screening also must be done internationally since an increasing number of workers have spent part of their professional careers abroad. The number of countries from which U.S. employers seek information about applicants with International Background Screening is expansive, and includes many countries.”
CARCO Group Inc., a worldwide leader in background screening and investigations, has posted online a white paper that explores the importance of contractor and vendor employee screening.
Published in response to a growing trend by companies to employ contractors and vendors in key roles, along with the need to justify the expense to upper management, the white paper reviews the benefits and best practices of contractor and vendor employee screening. The paper also discusses the risks associated with not screening these workers, CARCO says on its website.
“Most companies today have spent time evaluating and addressing physical security needs, most have also addressed environmental safety concerns, and many companies today practice some form of employee background screening. But many companies fall short on designing and implementing sound vendor and contractor employee screening programs,” notes Fred Giles, CARCO’s Senior Vice President, Research Division.
This white paper addresses some of the traps and dangerous practices that can ensnare the well-intentioned professional, and outlines the elements of a strong vendor employee screening program.
National Labor Relations Board General Counsel Richard F. Griffin Jr. has issued a lengthy guidance memorandum intended to explain modifications to the representation case processing procedures under the Board’s Final Rule, adopted in December 2014, reports Winston & Strawn.
The GC’s guidance covers how representation cases will be processed from beginning to end, incorporating both the Final Rule changes and the procedures that remain unchanged. The Final Rule will go into effect on April 14, 2015, and will apply to representation cases filed on or after that date, the firm reports on its website.
The guidance indicates that neither the Final Rule nor the memorandum “establishes new timeframes for conducting elections or issuing decisions.”
Cyber threats to oil and gas production — both cyber espionage campaigns and damaging cyber-attacks — are increasing, according to a white paper published by Oil and Gas IQ.
“Securing workforce and supply chain access to your data is a vital component of your defense against these cyber threats,” the paper says. “A robust Vendor Management System (VMS) can help protect your data and provide visibility into who has access to both your physical and intellectual property at all times.”
The white paper covers:
* Why your non-employee workforce data should be independently audited and certified
* Why single-tenant architecture keeps your data more secure
* Why the physical location of your data centre matters
* Why you should know your VMS provider’s disaster contingency plans
An article published by Zuckerman Spaeder describes a case that illustrates how easy it is to blur the line between an employee’s intellectual property and that of an employer.
“Content creation is continual for many new economy businesses,” writes . “Many online businesses have intellectual property as their principal assets. Moreover, the founders of these ventures frequently have many “ideas” floating around. If a founder contributes intellectual property to the venture, the documents governing the contribution should plainly specify whether it is by royalty-free license or by outright transfer of the interest.”
The case involves more than 35 years of books, sermons and other writings, had been produced by Dr. Robert Schuller while he was employed by tCrystal Cathedral as its senior pastor.
An EEOC internal memo states that the EEOC is interested in litigating charges regarding issues of “first impression” such as benefit coverage for same-sex couples and insurance benefits afforded to transgender individuals, according to an article published by Seyfarth Shaw.
While ERISA (and other current federal law) does not require benefit plans that provide benefits to opposite sex spouses to provide equivalent coverage to same-sex spouses, the EEOC clearly believes that such a right is found Title VII, write authors Sam Schwartz-Fenwick, Nick Clements and Ian H. Morrison.
“The EEOC will likely argue that failure to provide such coverage constitutes sex discrimination because entitlement to coverage turns on the sex of the employee’s spouse. Similarly, the EEOC appears willing to take an aggressive stance on transgender related benefits coverage,” they write.
A recent enforcement action by the U.S. Securities and Exchange Commissionagainst KBR serves as a warning to companies that efforts to silence potential whistleblowers through restrictive confidentiality agreements will not be tolerated, report two Dechert LLP lawyers.
The action aims to protect employees from signing confidentiality agreements that would prevent them from acting as whistleblowers. On April 1, 2015, the SEC announced a settlement with KBR, Inc. in which KBR will pay a $130,000 civil penalty and agreed to cease and desist from any future violations of SEC Rules, while not admitting or denying the SEC’s charges.
“As the first enforcement action of its kind, the SEC has taken an aggressive stance against KBR, one of the country’s largest government contractors.” write Nicolle Jacoby and Jamie Hacker.
The U.S. Securities and Exchange Commission (SEC) has announced the resolution of its first enforcement action against a company for violations of the whistleblower protection provisions of the Dodd-Frank Act regulations, according to a report written by three lawyers with Ropes & Gray.
Under a “no admissions” resolution, KBR Inc. agreed to pay a $130,000 penalty to resolve charges that the language it used in its confidentiality agreements during internal investigations violated SEC Rule 21F-17. In a voluntary “remedial action,” KBR also amended its internal investigation confidentiality agreements to state that employees are not prohibited from reporting, without prior company consent, violations of federal law to the Department of Justice, SEC, or other relevant federal agencies.
“As alleged in the SEC’s cease-and-desist order, as part of its internal investigation process, KBR required employees to agree to – and in some instances sign – a written confidentiality agreement warning that the employee could be subject to discipline (including termination) if, without ‘prior authorization of the Law Department,’ he or she “discuss[ed]” with outside parties ‘any particulars regarding [the internal investigation] interview [or] the subject matter discussed during the interview,’ ” the article explains.
In light of the U.S. Supreme Court’s ruling in Young v. United Parcel Service, Inc., 575 U.S. — (Mar. 25, 2015), employers have a little more clarity on whether they must make accommodations for a pregnant worker.
Burr & Forman lawyers Kathryn Willis and Matthew Scully, writing in a paper published on the firm’s website, said the plaintiff alleged that if UPS made accommodations for other workers it should have made accommodations for her.
“Both the district court and the United States Court of Appeals for the Fourth Circuit found in favor of UPS, concluding that UPS’s policy was “pregnancy-blind” and that Young was different from the employees UPS was accommodating (those injured on-the-job, lacking certifications, or “disabled” under the ADA), but the Supreme Court disagreed, vacating the Fourth Circuit’s decision and remanding for further consideration,” they wrote.
An all-day webinar presented by Paycor — and now offered on-demand — features a series of one-hour sessions focused on the topics that are most relevant to today’s business leaders, from the Affordable Care Act to employee engagement and retention. The series consists of six separate webcasts that can be viewed individually.
On its website, Paycor says HR industry experts and thought leaders shared their guidance and recommendations with more than 4,000 attendees.
Jennifer Bellin, vice president of marketing for Paycor, said, “We were thrilled that so many people were able to attend our HR & Compliance Web Summit this year. But, we knew that even more companies could benefit from the insights and practical advice delivered by our panel of experts. We are pleased to offer all of the sessions on our website so that others can gain a deeper understanding of the complicated HR and compliance issues affecting their organizations today.”
A small business owner hiring an employee — maybe the first employee — might be confused about what should be included in an employment contract, writes Alex Lipton, a legal researcher at law technology platform provider Shake.
“Being on the hiring end of an employment relationship means it’s your responsibility to make sure that the company has a clear employment contract,” he writes. “As always, it’s a good idea to talk with an attorney, but being familiar with the basics will help you focus that conversation.”
He offers a discussion of nine of the basic components of the process.
Benefit Express will present a free webinar reviewing the topic of Medicare and how it can affect Employers Health Coverage offerings.
The webinar will be Tuesday, April 7, at 1 p.m. Central time.
The topics will include employer secondary rules, COBRA, notice requirements and reporting requirement.
Benefit Express Services, LLC was established in 2001. It’s a benefits administration solutions firm that provides HR professionals with the tools and services necessary to simplify the benefits administration process.
BloombergBusiness has published four charts that show the labor market is about as tight as it can be right now, and “the end of slack is near.”
According to one analysts’s research, wage growth is about to accelerate and a Fed rate hike is all but inevitable this summer.
On chart shows how employer costs for employee compensation per hour worked is spiking. And anotherhows that employers are finding it harder and harder to find skilled labor.
Should executives include an arbitration clause in their employment contracts? A paper by Zuckerman Spaeder partner John J. Connolly says there’s no uniform answer.
Connolly writes that arbitration proponents cite its speed, cost, privacy, informality, minimal discovery, and limited appellate rights. But opponents of arbitration list the same points as negatives. Volumes have been written about whether arbitration is a better form of dispute resolution than litigation, and we can’t resolve that question here.
The data do seem to suggest that arbitration is not as bad a forum for executives as it is for lower salaried employees, Connolly writes, but more research is needed.
The Obama administration had the authority to make a 180-degree shift in labor policy and declare thousands of mortgage loan officers subject to wage-and-hour laws, the U.S. Supreme Court ruled, according to a report by Forbes.
In concurrences, the court’s most conservative justices complains that such deference to regulatory agencies threatens the constitutional balance of powers.
“The high court, in Perez vs. Mortgage Bankers Association, unanimously upheld the Labor Department’s 2010 determination that mortgage loan officers were mere salespeople, not administrators, and therefore entitled to a 40-hour work week and overtime wages.” Forbes says. “That was a reversal of the same agency’s 2006 decision that loan officers weren’t entitled to overtime. But the court ruled the Administrative Procedure Act governing how agencies promulgate rules and regulations clearly allows them to issue “interpretive rules” without going through the lengthy notice-and-comment procedure required for regulations that have the effect of law.”
Atlanta-based First Advantage has posted a free on-demand webinar designed to teach employers the full fundamentals for how to build the best background checks.
The webinar is part of a series that was built around the notion that performing or commissioning background screening programs is fraught with massive confusion, despite the fact employees are usually regarded as a business’ most valuable asset.
“Gathering accurate information on a candidate’s qualifications is critical in protecting the bottom line, but with the extensive number of searches available, ranging from federal to county, as well as drug testing, credential verification and more to consider, the process can be daunting,” said Jason Rennie, First Advantage Vice President of Sales, who is leading the webinars along with his colleague, Tammie Moser, First Advantage Senior Director of Account Management.
The Society of Petroleum Engineers will present a free webinar that will address some of the challenging questions about industrial safety that have arisen in the years since a chemical release in India killed thousands in 1983.
The 90-minute webinar will be Wednesday, March 11, at 9:30 a.m. Eastern time.
A lax safety culture contributed to the accident and to the extreme consequences of the accident, said the SPE on it website.
“It is generally accepted that safety culture is much different (much better) now. But categorizing and measuring culture is difficult, so it is hard to say how much different safety culture is today. Further culture varies with place, industry, company, plant, task, etc. Bhopal certainly had an impact, but so did other things. This webinar will tackle some challenging questions such as – ‘How is safety culture different today?’ and ‘What impact did Bhopal have?’ ‘Did it have more impact on design or on operations?’ ”
By Robert E. Goodman, Jr.
Copyright 2015
Somebody at work bumps into you. You feel a little pinprick in your back but the feeling goes away immediately. You don’t even think about it again. Especially because the person who bumped you apologizes for any pencil mark. If you do think about it again, you don’t see any mark.
Or let’s say the same person bumps into you almost two weeks later but you feel nothing, but you find a spiky object on your clothing at the end of the day.
Two weeks after the first bump, one day after the second, you are confronted by security personnel for your employer. You are told that you were observed going somewhere earlier that day and meeting with a representative of a potential competitor. You were overheard talking to that representative about the employer’s proprietary information. But you went alone, in your own car, to meet this person. As far as you knew, nobody was following you. How did your employer know anything about your going somewhere, or meeting someone, or what you said?
The pinprick represented the insertion into your skin of a semi-permanent homing device lasting months. The burr was a one-day homing device. Whatever homing device was used, a miniature drone was tasked to follow that device and watch and listen to you. But you’re not told about any of that.
You think this is fantasy. It isn’t.
Drones under the Christmas tree, in the backyard, down the block spying on the neighbor’s backyard, are all here, and drones in the workplace are coming. They’re getting smaller, and while there still needs to be some work on making homing devices undetectable, and drones so small you don’t hear or see them, you can be sure the work is proceeding apace. Just go to RadioShack.
Some of the commercially available drones, I understand, can work for eight hours without recharging, and recharging stations in a workplace could be unobtrusively placed. If a drone was to follow an employee home, recharging stations could also unobtrusively be placed in an employee’s home.
Moreover, drones are not only going to see and hear, but maybe smell and see at night with infrared or thermal imaging technology.
We all better watch out.
Drones near airports, the FAA is getting to that. Drones being used by law enforcement, there’s actually beginning to be some court consideration of that. Drones being used to take pictures over someone’s home or business, there’s actually a Texas law on that. Drones being used to take pictures of celebrity weddings, there’s actually a California law coming to deal with that. But drones in the workplace, people are not paying serious attention to that problem yet if they are paying any attention at all.
I started paying attention to the problem two years ago when I wrote a short story about drones in the workplace on our firm’s website. The short story predicts court decisions allowing the use of drones in the workplace. These decisions have not come to pass, but certainly may come to pass. There are no developments in drone technology or in the law during that have made me any less fearful of the problems that will be created by the inevitable use of drones in the workplace.
Last week, there were news reports of drones becoming a $13.4 billion industry with 7,500 commercial drones in the next 3-5 years. More to the point, there was an announcement by Intel last week of a wrist-launched drone. It takes off with laces that wrap your wrist becoming rotors. It then takes your picture and comes back to your wrist like a boomerang.
I say drones in the workplace are inevitable not only for technological reasons, but for other multiple reasons:
First, the temptation to use new technology in connection with work is the temptation we all wake up not resisting every morning. Whether in bed or soon after getting out of it, we punch our fingers to our smartphones. As in the case of other technologies — telephones, copy machines, fax machines and scanners — nobody has resisted the urge to use smartphones for business purposes. As smartphones go, so do drones.
Second, the use of technology by employers to snoop on employees is irresistible. Audio monitoring of telephone calls and fixed cameras in the workplace, nobody even thinks of those as being problematic.
Third, most employers are not the government, with constitutional limitations upon its conduct. You can be sure that private employers will depend upon this distinction in asserting that courts should not prohibit, or even necessarily severely restrict, use of drones in the workplace.
Fourth, with only a few emerging exceptions like the Texas and California laws, the private use of drones is not regulated by statute, that is to say laws specific to drones. There is not, nor is there likely anytime soon to be, a uniform federal law concerning drones covering the entire nation. Only court decisions about whether a particular use of drones invade a reasonable zone of privacy, or court decisions interpreting drone-specific statutes, will allow people to know what is lawful and what is not.
But fear of a privacy lawsuit has certainly not limited many employers from doing things that might at one point have been argued to constitute invasions of privacy, including monitoring telephone calls and emails. It has been enough to argue that the work-related context of an employer’s monitoring, or its ownership of the equipment being used, makes this monitoring okay. This truly centuries-old property distinction, not really a modern privacy distinction, is the basis of the Texas law prohibiting surveillance over real estate. And, given that statute, and, more to the point, the probable difficulty of coming to a consensus on use of drones in the workplace, there may be no other statutes about drones for a while, at least in Texas.
Fifth, as I’ve suggested, drones are getting smaller all the time and if you don’t know you are being monitored, you can’t even complain, except way too late, maybe even as late as a lawsuit. An employer having the opportunity to know a secret about you is a form of voyeurism that every employer will at least indulge, whether or not it is acted upon. If individual supervisors are given discretion, that voyeurism may become pure voyeurism.
Recognizing the inevitability, therefore, of drones in the workplace, and the pattern of courts to accept what might have been questioned as the proper use of other technology, there are a number of questions to ask about where we are headed as far as drones are concerned:
Are we headed toward a world in which employers can monitor employees with drones without their consent, and how far does this go, only at work, or can a drone follow an employee outside the workplace during the middle of the workday, or even go home with the employee? Where is the line to be drawn?
If consent is required, is it going to be sufficient that consent is obtained at the outset of employment or sometime during the employment, like arbitration agreements. Is the consent going to be real? Is consent going to be treated as limited to surveillance or will it cover surveillance outside work?
Are we headed toward a world in which executives never monitor themselves, but everybody else is monitored? That’s a question I raised in my short story. There was an exception to surveillance executives created for themselves.
You may not believe it, but since I pursue discrimination cases, I believe it, are we headed toward a world in which minorities are monitored by drones but non-minorities are not? In which employees with alleged medical problems are monitored but others are not? Suspected whistleblowers? You can imagine other possible questionable examples of disparate drone surveillance.
Are we headed toward a world in which courts accept evidence from drones, which could take up gigabytes of space and be difficult to search. Given its overwhelming data quantity, are courts going to allow effective discovery of that evidence in any lawsuits in which the evidence may be offered?
Are we headed toward a world in which not only employers monitor employees, but, for example, disability insurers or administrators monitor employees on behalf of an employer and do so without the employee’s consent? Unconsented video surveillance of individuals with disability benefit claims, outside the workplace, already occurs.
Are we headed toward a world in which employers monitor prospective employees or in which employees turn the tables and monitor their supervisors? I give the latter example in my short story.
Are we headed toward a world in which courts allow a slippery slope to be created instead of a hard border between proper use of a drone and improper use of a drone in the employment and benefits context?
In my short story, I tried to predict what courts would be doing over the next five years, but who is to say what they will do.
In my story, I predicted that they will start with a distinction between governmental and private use of drones and not restrict drones from being used at all in private workplaces. Then, I suggest courts may, but not necessarily will, develop a reasonable suspicion of impropriety standard, something less than probable cause for governmental employment and criminal purposes. Maybe not, however. Maybe at worst just requiring a human resources representative to fill out a form to get permission to use a drone to monitor an employee.
But I also suggest that courts may not restrict drones from following employees outside the workplace or home if the technology exists to follow them. Such court decisions will, of course, be based on the argument that conduct outside work and at home can have workplace implications. It certainly did in my initial example. The best that can be hoped for, if privacy is to mean much, is that zone of privacy will be established to limit severely, whether or not prohibit, drone surveillance outside the workplace. If a drone follows an employee home, there will be questions of how to deal with information not work-related. This could, of course, include clearly personal information like discussions between family members about family matters. But it could also include information about a person’s behavior or a person’s addiction or a person’s criminal conduct which an employer would actually want to know even if it had a personal element precisely because of the work-related implications. Will an employer have a right to obtain such information using a drone, to retain it, to act on it?
Then I talk about a conflict between an employee’s medical privilege and drone surveillance. That doesn’t seem to be a tough one, the drone going into the psychiatrist’s or doctor’s office, you would think that would be prohibited, but what about a telephone call with a psychiatrist or doctor that happens to be overheard by a drone. That’s an element of my story. Employers, or at least their insurer’s representatives, are already going into doctor’s offices with employees who make workers compensation claims. How far from doing that would drone surveillance be?
The same issue, of course, applies to an employee’s visit with a lawyer.
And I predict that employees could even be subjected to setups that are then recorded by drones when everything else, including other drone surveillance, indicated that there was no basis for being concerned about the employee’s conduct. Coincidentally, the setup in my short story, like that in this speech, is that an employee is told to meet with a representative of a competitor. Unlike my initial hypothetical, however, in the short story the employee is not doing anything wrong at all.
The employee victimized by drone surveillance, or even more to the point, an employee, including in-house lawyer, offended by drone surveillance, is going to have to be brave to make the objection to drone surveillance. The employee is then going to have to be braver, and actually a pioneer, to assert a legal claim and pursue a lawsuit to establish that drone surveillance is improper as a matter of invasion of privacy or under a statute. Unfortunately, such lawsuits are going to be necessary to establish just how far drone surveillance can go. Any employees, of course, who take any one of these brave actions, could get fired themselves for standing their ground.
And boards of directors are going to become involved. In my short story, outside board members associated with the employer in the story had to get involved. Their own companies did not make exceptions to drone surveillance for executives. They were the heroes, but only because they were subject to drone surveillance at their own employers.
And employer groups and local and national Chambers of Commerce and and human resources organizations are going to have to take a stand as well. I predict that law firms will also have to line up on one side or the other from the standpoint of whether they are going to advise employers to use drones. Morality and ethics, not only law, will come into play. As I have already suggested, the employers who do decide to use drones may stall in producing gigabytes of data and courts will have to address those stalling tactics. The issue already exists with production of gigabytes of other kinds of data in lawsuits.
As an attorney for employees, I worry that courts are not going to be very sympathetic with invasion of privacy claims based on drone use by employers or benefit insurers or administrators. I hope it is the case that, even so, some attorneys for employers may be so uncomfortable with use of drones by employers that they will not defend it. But money is powerful. Of course, it will cost a lot more to defend the use of drones than it will cost to insert the homing device and get the drone up and running.
All in all, especially if drones and homing devices veer towards the nano as so many other things are these days, all the prospects relating to drones in the workplace are scary even if you are not easily scared.
About the author
Robert E. Goodman Jr. is senior counsel with Kilgore Law.