A recent case from the National Labor Relations Board shows that American labor law, including principles that apply to collective bargaining agreements, is not always as straight-forward as basic contract law, points out Barnes & Thornburg in a recent post.

The contract included a clause setting “longevity pay increases” for workers who reached certain tenure milestones with the company.

“The employer and union were meeting to negotiate a successor contract, and the agreement expired in the interim,” explains David J. Pryzbylski. “Once the labor agreement expired, the company ceased offering longevity pay increases on grounds that there was no agreement in effect that provided for such increases.”

The NLRB, however, found that a company generally must continue to offer employees the terms set forth under a collective bargaining agreement when it expires and while negotiations for a new contract are underway.

Read the article.

A recent ruling illustrates how courts will typically enforce a valid forum selection clause, absent a compelling showing of prejudice to the party opposing a lawsuit in the agreed-to forum, according to a post by Murtha Cullina’s Family Business Perspectives blog.

Michael P. Connolly explains that “while substantive disputes under an agreement may still arise, a forum selection clause at least may provide a measure of certainty from the outset as to the location of any future legal action. Without such a clause, a party to an agreement may be forced to litigate in a distant, inconvenient or otherwise unwanted location, which may ultimately increase the expense, disruption and risk in connection with any future lawsuit.”

Read the article.

According to Equilar’s latest General Counsel Pay Trends study, which crunches pay data from publicly traded companies in the U.S., male general counsel make on average 18.6 percent more than women in the same roles, reports Above the Law.

That gap is the largest recorded since Equilar began studying the metric in 2014.

The report shows that “in the 2017 to 2018 period, median GC compensation for men increased — from $2.52 million to $2.63 million — while median pay for women GCs fell — from $2.44 million to $2.21 million,” writes Above the Law’s Kathryn Rubino.

The publication analyzes the compensation of general counsel disclosed in SEC filings for the past five fiscal years. The companies are the 500 largest, by reported revenue, U.S.-headquartered companies that trade on one of the three major U.S. stock exchanges.

Read the Above the Law article.

Above the Law reports it was tipped off by insiders at Biglaw firm Quinn Emanuel about a policy at the firm that has left some associates hoodwinked over losing some of their vacation time.

“According to our tipsters, in previous years the firm has allowed associates that attend the [firm’s annual hike] to bill the time to a non-billable client number,” explains Above the Law senior editor Kathryn Rubino. “When associates attempted to repeat the practice this year however, they were told that time should, instead, be charged to their vacation time.”

She adds that the firm defended the policy because it subsidizes the travel costs associated with the trip, which took place in Interlaken, Switzerland this year.

Read the Above the Law article.

By explicitly listing sexual harassment within the definition of “cause” for dismissal in an executive’s employment agreement, a company can avoid paying out hefty benefits to potentially bad actors, advises Ashley K. Pittman in Hutchison PLLC’s employment law blog.

“This can have a big impact,” she writes. “In addition to the direct economic effects and the ability to terminate someone to preserve and strengthen your corporate culture, your company can potentially avoid the public perception that the departing executive was somehow rewarded for bad behavior.”

Read the article.

The U.S. Chamber of Commerce and other business and employer groups have just submitted amicus briefs calling on the 9th Circuit to reconsider decisions that, in the views of these amici, eviscerate mandatory arbitration provisions, writes Alison Frankel in a Reuters report.

The briefs come in the wake of the 9th Circuit’s June 28 rulings in which plaintiffs claimed they couldn’t be forced into arbitration because they sought injunctions against corporate defendants.

The court found that because California’s policy of allowing consumers to pursue public injunctions does not specifically obstruct arbitration, it’s not precluded by the Federal Arbitration Act.

Read the Reuters article.

Posting an arbitration section in your employee handbook may put an employee on notice of a company policy or “offer,” of which the employee could be said to be “generally aware,” but it might not, without more, establish that there is an agreement to arbitrate, pints out Gilbert A. Samberg for Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

There must be evidence of the employee’s acceptance, he explains in a post on the firm’s website.

He illustrates his point with a case from the Eighth Circuit, concluding: “An employer needs to be able to prove acceptance by each employee of an ‘offer’ of arbitration.”

Read the article.

The American Bar Association’s first annual profile of the legal profession shows that lawyers’ income grew slower than inflation from 2017 to 2018.

The average lawyer’s salary rose 1.6 percent, which is a little lower than the 2.1 percent rate of inflation for the same period, reports Bloomberg Law in a summary of the ABA profile.

The report found that the average lawyer earned $144,230 last year, making less than dentists, who earned $180,590 on average, but more than physicists, who made $125,280, according to the Bloomberg summary by Melissa Heelan Stanzione.

The study also revealed the pervasiveness of stress, anxiety, and substance abuse in the profession. “Recent studies show that lawyers struggle with these problems at levels substantially higher than the general population and other highly educated professionals,” the ABA report said.

Read the Bloomberg Law article.

More and more law firms are responding to peer competition by offering generous paid parental leave for their lawyers who become new parents, reports Above the Law.

Staci Zaretsky, a senior editor at Above the Law, writes about the reportedly industry-leading paid leave announced by Benesch.

“The firm’s plan had always been gender neutral, but today it announced its adoption of a reportedly industry-leading 20 weeks of fully paid leave for new parents, up from 12 weeks of paid leave, plus the ability to take an additional six weeks of leave without pay,” she writes, adding that there may be a handful of firms may offer a few more weeks of fully paid, gender-neutral parental leave.

Read the Above the Law article.

The Society of Corporate Compliance and Ethics’ 18th Annual Compliance & Ethics Institute will feature leading industry experts who will cover real world compliance issues, emerging trends, and practical applications.

The event will be in National Harbor, MD, Sept. 15-18, 2019.

Participants will learn about current hot topics such as global antitrust compliance, Office of Foreign Assets Control (OFAC) sanctions, artificial intelligence, and preventing harassment and discrimination.

The SCCE says CEI is ideal for any professional who deals with compliance and ethics issues as part of their job duties, including compliance and ethics professionals, in-house and outside counsel, audit managers/officers, consultants, corporate executives and leaders, human resource managers, information officers, privacy officers, regulators and other government personnel, researchers and policy makers, risk managers, staff educators and trainers.

Get more information or register.

On the heels of the Supreme Court’s recent pro-arbitration pronouncements, the U.S. Court of Appeals for the Eighth Circuit issued a reminder that, although agreements to arbitrate are favored under the law, arbitration agreements must still be contracts, writes Susan Fitzke for Littler Mendelson.

“In order to enforce an agreement to arbitrate, therefore, the employer must prove that a valid contract to arbitrate was created,” she explains. “This may seem self-evident, but in an era where some arbitration programs are contained only in employee handbooks or on-line, this is a point worth closer review.”

Read the article.

If a contract is too one-sided, it can be ruled illusory and unenforceable, warns Shepard Davidson in the Burns Levinson In-House Advisor blog.

That is exactly what happened to the defendant in McNamara v. S.I. Logistics, Inc. when it tried to enforce its contractual right to arbitration he writes.

In that case, the defendant sought to compel arbitration based on an agreement that  purported to grant the company the unilateral right to modify its terms without any prior notice to McNamara, a former affiliate.

The court found in favor of McNamara, finding that the agreement was illusory.

Read the article.

Many employers have offices in multiple states, but want to have one form of employee agreement prohibiting solicitation of employees and customers, points out Dorsey & Whitney.

Because some state laws, namely California, may be too different to reconcile with other states, author Gabrielle Wirth considers the question: What sort of non-solicitation agreements work in California?

“In California, non-solicitation agreements are reviewed as contracts which prevent a person from engaging in a profession, trade or occupation which, with limited exceptions, are void under Business and Professions Code section 16600,” Wirth explains. “Thus, recent cases have held that an agreement between an employer and employee prohibiting the solicitation of customers is not enforceable unless tied to the employee’s use of trade secrets or some other legal duty owed by the employee.”

Read the article.

Two recent court decisions dealing with mandatory arbitration agreements highlight why some manufacturers may gain by requiring pre-dispute employment arbitration agreements, writes Matthew Miklave for the Robinson+Cole Manufacturing Law Blog.

He discusses two federal court rulings favoring individual arbitration over litigation.

In one of the cases, the Second Circuit Court of Appeals reversed a lower court and found that a union labor contract which contained a clause requiring the arbitration of all disputes between the union represented employees and the employer prevented an employee from bringing an individual claim in federal court.

Read the article.

Periodic review and maintenance of noncompetition and other restrictive covenants agreements is crucial to ensure employers get the maximum available legal protection from theft of their customer base and business opportunity, employee talent and confidential information, advises Akin Gump Strauss Hauer & Feld in a website post.

The article summarizes some of the recent and noteworthy state statutes concerning such agreements.

The article adds: “Even in states where there has been no statutory activity, changes in an employee’s job or the underlying competitive landscape can affect the scope of enforceability of noncompete agreements. Post-employment restrictions on working for a competitor or soliciting former co-workers or customers are contracts that must satisfy the usual elements of an enforceable agreement, including a valid offer, acceptance of the offer and consideration to support the parties’ agreement.”

Read the article.

Results of a survey by Working Mother show some advance for women in the number of equity partners and in the number of women who rank among their firms’ most highly compensated partners.

Some of the key initiatives the survey examined include paid parental leave, the use of reduced schedules, parent-resource groups, and mentoring and sponsorship of female lawyers.

Working Mother collaborated with the ABA Journal as a knowledge partner in recruiting firms and publicizing results.

Read the Working Mother article.

The Eighth Circuit recently ruled that an employee was not subject to the employer’s arbitration agreement, including a delegation clause. The agreement was contained in an employment handbook addendum, which was available to the employee electronically.

Henry Allen Blair, writing for Arbitration Nation, discusses the case in a post about the ruling in Shockley v. PrimeLending.

Blair cites the court’s opinion, which states that “[w]e are aware of no legal authority holding that an employee’s general knowledge or awareness of the existence of a contract constitutes the positive and unambiguous unequivocal acceptance required under Missouri law.”

Read the article.

Appellate lawyers with Houston-based Wright Close & Barger scored a 9-0 decision from the U.S. Supreme Court in a closely watched religious discrimination case that made national headlines and carried big implications for employers and state and local governments.

The ruling in Fort Bend County vs. Davis united both conservative and liberal justices with an interpretation signaling that employers must be expeditious when challenging a worker’s claim of job bias. The opinion also cemented the authority of the courts in discrimination cases like this one, the firm said in a release.

“We are grateful for this important decision, which ensures a fairer system for all victims of employment discrimination. It also clarifies the process for employers and governments,” said appellate specialist Raffi Melkonian who delivered oral arguments on behalf of plaintiff Lois Davis. The case marked his first time making oral arguments before the Supreme Court.

Read details about the case.

The 2018 death by suicide of Sidley Austin partner Gabe MacConaill has drawn attention again after Financial Times featured his death in an article about mental health issues in the workplace. In that same article, his widow, Joanna Litt, voices her anger at the firm for the events that led up to her husband’s death and for the firm’s lack of a robust response since MacConaill died.

Above the Law tells the story of how MacConaill’s death has become part of a larger conversation.

“The two managing partners of the bankruptcy division did not call me, email me, send me a letter,” she says. “I still haven’t heard from either partner. I also didn’t hear from the slightly senior partner who Gabe was working [on the bankruptcy case] with. None of them.”

Read the article.

The ABA Journal reports that a partner at Husch Blackwell in Madison, Wisconsin, has left the law firm after receiving a reprimand for allegedly punching a bar manager and driving while intoxicated.

The firm announced that Jeffrey McIntyre had withdrawn from the firm in wake of the state supreme court’s reprimand. “Obviously, our firm does not condone or tolerate his behavior,” the firm said in a statement.

The reprimand cites an incident that happened in the early-morning hours of Christmas 2017, in which a manager of a bar in Madison told police that McIntyre was with two women who were not happy that the bar was closing. The manager said the situation escalated, with McIntyre punching him in the nose.

McIntyre also pleaded guilty to a driving while intoxicated charge in 2018.

Read the ABA Journal‘s article.