The office of the National Labor Relations Board’s general counsel has released an advice memorandum finding an employer violated federal labor law by requiring employees to sign a broad non-disparagement agreement at the time of hire, according to a Kramer Levin post.

The memo referred to a case in which a law firm required all newly hired support staff and attorneys to sign an employment agreement containing a non-disparagement provision, according to the post’s authors, Kevin B. Leblang and Emily M. Wajert.

The GC rejected the law firm’s reasoning for the broad provision, explaining that “[t]he employer’s asserted interest . . . is not a unique interest nor strong enough to outweigh the significant interference the [provision] has with employee rights.”

Read the article.

The U.S. District Court for the Northern District of Texas compelled arbitration in a putative Fair Labor Standards Act class action based on language in a “notice to employees” that put the plaintiffs on notice that they were agreeing to arbitrate claims in an incorporated (and hyperlinked) arbitration agreement, according to Carlton Fields; Reinsurance Focus.

Author Brendan Gooley adds that the court also rejected various other defenses to arbitration raised by the plaintiffs in an attempt to avoid arbitration.

The court found that the notice to employees contained sufficient language to incorporate the arbitration agreement by reference, and the notice to employees was also clear on that point.

Read the article.

Bloomberg Law reports that Armstrong Teasdale LLP’s mandatory partner retirement policy doesn’t violate the Age Discrimination in Employment Act because partners aren’t covered employees, the Eighth Circuit ruled, deciding a matter of first impression.

The court said equity partner Joseph S. von Kaenel wasn’t a firm “employee” when he was forced to retire at age 70.

The court relied on a precedential six-factor test for determining who is an employee, including whether the organization can fire the individual and set rules for the individual’s work, how much the employer supervises the work, and whether the individual shares in profits, explains Bloomberg’s Julie Steinberg.

Read the Bloomberg Law article.

Goodwin Proctor has announced an expanded paid parental leave policy for employees in its U.S. offices, reports Above the Law.

The new policy gives lawyers up to 18 weeks paid parental leave, while staff will be eligible to take at least 12 weeks. And birth mothers will be eligible to take at least six additional weeks of disability leave, according to the announcement sent to employees.

The firm also announced that lawyers will move to a flexible vacation policy, with no specified limit to the total number of vacation days in a calendar year.

Read the Above the Law article.

U.S. District Judge William Alsup of San Francisco has berated lawyers for big tech companies before, and now an attorney for DoorDash found himself the target, reports the San Francisco Chronicle.

The issue was the way the meal-delivery startup pushed its couriers into arbitration, writes the Chronicle‘s Mallory Moench.

Courthouse News Service describes an exchange Alsup had with DoorDash lawyer James Fogelman, of Gibson Dunn & Crutcher:

“Your law firm and all your firms have tried for 20 years to keep plaintiffs out of court, and you’ve gotten a lot of success in the courts,” U.S. District Judge William Alsup said. “Then someone says, ‘OK. We’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling away, trying to find a way to squirm out of your agreement.”

DoorDash had been ordered to pay more than $11 million in arbitration fees.

Read the SF Chronicle article.

In a post on the American Medical Association website, AMA senior attorney Wes Cleveland discusses physicians’ letters of intent and when an attorney should be retained during the contracting process.

He explains that the letter of intent represents an effort for the physician and employer to be sure they’re on the same page on such issues as compensation, length of employment, benefits, responsibilities and more.

He also discusses binding versus non-binding agreements.

Read the article.

Pittsburgh-based Biglaw firm K&L Gates has been steadily losing attorneys all year long, reports Above the Law, citing ALM Intelligence data.

The data show that “from December 2018 through October 2019, the firm lost a total of 96 partners, while only picking up 32 in that timeframe. That net decrease represents 7.9 percent of the total partnership. And across all attorneys, the firm is net down 56 lawyers.”

During that period the firm hired more associates than it lost — 164 hires and 154 departures.

Read the Above the Law article.

Bloomberg Law reports that at least a dozen in-house lawyers were among the 2,400 layoffs last week at the parent of co-working giant WeWork.

“The WeWork layoffs followed an aborted $3.5 billion initial public offering, the departure of former CEO Adam Neumann, and a tentative $9.5 billion bailout by Japan’s SoftBank Group, which has temporarily saved the faltering company,” writes Bloomberg’s Brian Baxter.

WeWork lawyers in New York and San Francisco, along with some in outlying offices, were let go, one of the in-house lawyers told Bloomberg.

Read the Bloomberg Law article.

Forbes reports that the national average annual wage of an lawyer is $144,230, according to the Bureau of Labor Statistics’ Occupational Outlook Handbook, which is not far from being three-times the average annual salary for all occupations, $51,960.

But Forbes contributor Andrew DePietro explains that average salary is for the U.S. overall, which hides significant differences depending on geography, from state to state.

For example, the average lawyer salary in California, $171,550, is about double the salary in Montana, which is $88,600.

The report lists average salaries for all states.

Read the article.

The U.S. Court of Appeals for the Sixth Circuit held that employers cannot by contract shorten the statutory limitations period (i.e. the time period within which a claim must be brought) under Title VII, writes Fiona W. Ong for Shawe Rosenthal’s E-Updates.

Ong explains:

“In Logan v. MGM Grand Detroit Casino, the employee signed a job application containing a provision that established a six-month limitations period for bringing any lawsuit against the employer and that waived any applicable statutes of limitation. The employee, 216 days after her resignation, filed a charge of discrimination with the EEOC, and after she received a notice of right to sue, brought suit in federal court. The employer moved to dismiss her lawsuit because it was not timely filed within the contractual six-month period.”

Addressing the issue for the first time, the court found  that contractual limitation in Title VII cases to be unenforceable.

Read the article.

Another Biglaw firm has announced its bonus scales for associates, but this one adds something extra for those lawyers who put in the really long hours, reports Above the Law.

Schulte, Roth & Zabel announced a bonus scale that is in line with other Biglaw firms that have already announced. Associates in the classes of 2010-2012 will receive $100,000, while more recent hires can expect bonuses ranging from $15,000 to $90,000, depending on their length of service.

The firm will provide extra payouts of $20,000 or $40,000 to associates who hit billable-hour marks of 2,300 or 2,500 hours, respectively.

Read the Above the Law article.

Littler, an international employment and labor law practice representing management, has released the results of its second annual European Employer Survey Report, completed by 572 in-house counsel and human resources professionals.

The firm reports the survey found that improving workplace equality is top-of-mind for European employers, and most respondents are moving to address equal pay and workplace harassment. Employers are also taking a variety of steps to support the mental health of their employees. And despite the uncertainty surrounding the United Kingdom’s looming exit from the European Union, a surprising portion of respondents feel prepared for Brexit’s employment-related impacts.

The survey findings were unveiled at Littler’s European Employer Conference in London.

The firm provided a summary of the survey’s findings:

Workplace Equality

European employers are focusing a great deal of attention on equal pay, reporting increased engagement on a variety of potential actions in comparison to the 2018 survey. Providing female and diverse employees with more training and opportunities for advancement showed the greatest increase (up from 21 percent in 2018 to 33 percent in 2019), followed by improving transparency around wages and pay policies (up from 21 to 30 percent) and modifying compensation policies (up from 25 to 32 percent).

The proliferation of laws mandating gender pay gap audits in European countries appears to be one driver of this activity. Most respondents (80 percent) identify conducting and reporting on their gender pay gaps as a concern, but the European employers surveyed are also taking actions beyond those required by law.

“In addition to legal liability, employers are worried that pay inequities in their workplaces could negatively impact their reputations, employee satisfaction and their ability to attract talent,” said Thomas Griebe, Littler partner in Germany. “Particularly as labor markets tighten, recruiting and retaining qualified employees is a challenge, and it becomes more difficult if current and potential employees are concerned about being comparatively underpaid.”

European employers are also moving slightly more aggressively to address workplace sexual harassment, by updating HR policies (up from 26 percent in 2018 to 32 percent in 2019), more proactively addressing complaints and misconduct (up from 23 to 31 percent) and strengthening investigative procedures (up from 23 to 30 percent).

Furthermore, a fair percentage of respondents support European governments taking steps to combat sex-based harassment and discrimination in the workplace; nearly half (42 percent) support requiring companies to designate a point of contact for workers to bring allegations and more than a third (35 percent) support mandatory reporting on the state of gender equality.

“Given that strict regulatory action has not been widespread in the countries surveyed, employers appear to be taking action to address sexual harassment in order to ensure a positive workplace for employees and help protect themselves from liability,” said Merete Furesund, Littler partner in Norway. “Concern and attention to this issue have led European employers to take a range of concrete actions and boost their efforts to combat it.”

A comparison with the results of Littler’s latest annual survey of employers in the United States, released in May 2019, shows higher European engagement on equal pay, whereas more US employers report taking action to address workplace sexual harassment. Only 15 percent of European employers say they have not taken any action to address equal pay in the workplace, compared to 37 percent of US employers. On the other hand, more US employers report taking steps in response to the #MeToo movement, including providing additional training (22 percent in Europe compared to 63 percent in the US) and updating HR policies (32 percent in Europe compared to 51 percent in the US).

These differences may reflect the level of media and legislative attention paid to these issues in Europe vs. the US. Legal measures requiring gender pay gap reporting have been more prevalent in Europe, while the #MeToo movement in the US has given rise to a bevy of state laws requiring sexual harassment training.

Workplace Mental Health

Against the backdrop of an aging workforce, rapidly evolving technology and market pressures requiring employees to do more with less, European employers are increasingly focused on mental illness in the workplace. Nearly nine in 10 respondents (87 percent) say their organisations are taking various actions to address and support employees’ mental health. Forty-one percent are providing adequate time off and sick leave, 38 percent are limiting work hours and off-the-clock work and 35 percent are encouraging a culture that supports open communication between employees and management.

“Workplace mental health is having its #MeToo movement. It’s always been there, but now it’s being acknowledged as a serious concern,” said Stephan Swinkels, Coordinating Partner International at Littler. “Given the array of forces driving the issue, we can expect continued momentum as workers feel more comfortable speaking out and companies become more involved in order to retain talent, reduce workplace stress and promote productivity.”

Companies are also putting greater emphasis on supporting workers returning from extended mental-health leave. More than a quarter (28 percent) say their organisations have been successful in reintegrating employees and only six percent say they have been unsuccessful. However, the fact that a plurality of respondents (38 percent) don’t know if their organisations are effective in this regard signals continued room for improvement.

Brexit’s Impact on Employment

Since the UK voted to leave the EU three years ago, the potential fallout from Brexit has created headaches for many companies. Despite the fog of uncertainty surrounding respondents in late summer, when they took the survey, 48 percent say they are somewhat or very prepared for the employment-related impacts of Brexit. Only 12 percent say they are unprepared or somewhat prepared, and the remaining 40 percent are neutral. UK respondents expressed the highest degree of preparedness; 67 percent say they feel very or somewhat prepared.

This confidence could be driven by the proactive steps employers have taken, such as moving their headquarters out of the UK, opening new offices on the mainland and identifying employees who would be affected in order to plan for work permits or replacements. It may also be bolstered by respondents’ optimism that the UK would enact a skills-based immigration system after Brexit eventually takes effect. Nearly two-thirds of UK-based respondents (59 percent) feel that such a system will enable the nation to remain a global hub for skilled workers, while only 8 percent express scepticism.

“For UK employers, having access to the skilled workers they need to run their businesses is absolutely critical,” said Paul Quain, Littler Partner in the UK. “A general climate of uncertainty that makes preparation difficult as companies don’t know what they are preparing for – combined with some anti-immigrant sentiment, including against non-British EU nationals, that has been seen by the British government as a key driver behind Brexit – leaves a great deal of ambiguity around a post-Brexit skills-based immigration system.”

The survey report covers a range of other legal and HR issues impacting European companies, including unconscious bias in the workplace, trends in artificial intelligence and robotics use, the significant rise in spending related to the EU’s General Data Protection Regulation and the impact of the European Court of Justice’s decision on employee working-time monitoring.

Women make up as many as 50 percent of new associates, yet they leave law firms much more frequently than men, the American Bar Association found in a new study.

Bloomberg Law, reporting on the ABA study, summarized the findings:

“The report found that there are big differences in how the genders view their firm’s handling of promotions, leadership opportunities and equity partnerships.

“Some 91% of firm leaders, for example, felt their firms are “actively advocates of gender diversity,” while only 62% of the women lawyers responding thought the same thing.”

The study found that women cited the level of stress at work, care-taking commitments, differences in pay, and the firm’s emphasis on marketing as negative factors.

Read the Bloomberg Law article.

Restrictive covenants in employment agreements and employee benefit arrangements will be enforced in appropriate circumstances, but parties should be aware of varying standards from state to state, warns Jonathan Orleans for Pullman & Comley.

Orleans, writing in a post for JDSupra, says that enforcement of noncompetes can be complicated. Sometimes statutes create exceptions, and sometimes exceptions are developed through caselaw.

While courts frequently comment that restrictive covenants are “disfavored in the law,” they can be enforced if they meet certain standards.

Read the article.

Biglaw firm Milbank was the first to announce its associate bonuses this season.

The scale at Milbank is the same as last year’s, Above the Law reports. The bonuses range from $15,000 to $100,000 and will be paid on Dec. 31, according to senior editor Staci Zaretsky.

And that lack of an increase is causing some negative feedback, writes Above the Law’s executive editor Elie Mystal:

“Based on my inbox, associates are not exactly thrilled about the extra $15,000 to $100,000 this scale provides. Of particular issue is the fact that in 2018, associates got summer bonuses. In 2019, they did not. So, in overall bonus compensation, a same-scale bonus actually results in less compensation for associates.”

Read the Above the Law articles here and here.

Bloomberg Law reports that a former Hershey Co. intellectual property lawyer can’t proceed with a suit alleging he was discriminated against when the company terminated him by saying it was eliminating his position, but then hiring “a younger, African-American woman” for the same job, the Middle District of Pennsylvania said.

Kurt L. Ehresman, a 52-year-old white man, worked as Hershey’s senior counsel for global intellectual property until Hershey told him it was eliminating his position, writes Bloomberg’s Blake Brittain. Ehresman said Hershey soon created a “Head of Intellectual Property” position and hired a younger black woman “to promote Defendant’s goal of diversity.”

The court found his claims were barred by an agreement he signed when he left the company.

Read the Bloomberg Law article.

Bloomberg Law reports that Davis Polk & Wardwell LLP is accused in a new lawsuit in New York of discriminating and retaliating against a black former associate because of his complaints about racial bias at the law firm.

Kaloma Cardwell alleges the firm denied him job assignments — causing him to go from billing more than 100 hours per month to zero billable hours for four consecutive months. The firm then fired him, according to his complaint filed in federal court in Manhattan.

Cardwell was the only black attorney hired in the firm’s 2014 class of more than 120 new associates, and one of only four black attorneys at the entire firm, the complaint says.

Read the Bloomberg Law article.

D.C. Toedt III, writing in the On Contracts blog, describes how  parties to a contract often circulate just signature pages to be signed, and the problems that can arise with that practice.

He also explains the importance of making sure that the signed version is identified (e.g., with a running header).

He analyzes a lawsuit that involved a former vice president of a company who sued to compel the company to give her the equity that she claimed was due to her under the “signed” agreement. But the parties, after sending revised drafts back and forth, had apparently signed signature pages for different versions of the agreement.

Read the article.

DLA Piper, fighting a sexual-assault claim against a former partner, filed a response to the accusation Tuesday, saying the lawyer who filed the complaint orchestrated a “flirtation” to advance her career, reports Bloomberg News.

DLA and former partner Louis Lehot parted ways after his colleague Vanina Guerrero accused the star Silicon Valley lawyer of sexually assaulting her.

The firm said it conducted an “impartial investigation” of the matter.

“Ms. Guerrero was a willing participant in a lengthy emotional flirtation with Mr. Lehot that she orchestrated to advance her career,” DLA Piper said in a letter to the U.S. Equal Employment Opportunity Commission, citing Guerrero’s emails.

Read the Bloomberg Law article.

Jones Day’s “hypercentralized,” subjective decision-making process places final control over pay, promotion, and other significant decisions “unchecked in the hands of one man,” six female former lawyers told the U.S. District Court for the District of Columbia.

That man is managing partner Stephen J. Brogan, claim Nilab Tolton and the five other lead plaintiffs. They filed a supplemental memorandum Oct. 24  opposing Jones Day’s motion for partial judgment on the pleadings in their proposed class action, filed in April, according to a Bloomberg Law article.

Brogan backs his “totalitarian grip” on Jones Day with a “no whining policy” under which women aren’t allowed to raise sex-based inequities, they say.

Read the Bloomberg Law article.