“Netflix is facing another executive poaching lawsuit, this time from gaming giant Activision Blizzard over the departure of CFO Spencer Neumann,” report Ashley Cullins and Natalie Jarvey in The Hollywood Reporter’s Labor.

“Activision claims Netflix induced Neumann to breach his employment contract while the CFO was actively involved in negotiations with the streamer on the gamer’s behalf. This marks the third major entertainment company, following Fox and Viacom, to allege Netflix is illegally poaching employees.”

Read the article.

“On Sunday, November 8, 2020, the Biden-Harris team updated its transition website to highlight four priorities: COVID-19, economic recovery, racial equity, and climate change,” reports Ivo J. Becica in Obermayer’s HR Legalist.

“While workplace issues are not explicitly included in the transition plan, and the campaign itself has focused more on the pandemic and the economy, the Biden campaign has certainly not been silent about labor and employment issues. In a series of blogs over the next several months, HR Legalist will outline some of the biggest issues for employers to watch over this transition period.”

“The Biden-Harris campaign website includes an aggressive multi-pronged platform for changes to labor and employment law across the country …”

Read the article.

David Drummond, the chief legal officer of Google’s parent company, Alphabet, and one of its most senior executives, is leaving the internet giant amid an investigation into his relationships with women who worked at the company, reports The New York Times.

His resignation comes more than a year after 20,000 Google employees protested the company’s handling of sexual harassment and inappropriate workplace relationships, writes the Times‘ Daisuke Wakabayashi.

“Some employees inside Google were dismayed that Mr. Drummond was not forced to leave after the details of an extramarital relationship he had with a woman who worked for him became public,” Wakabayashi continues. “The concerns about Mr. Drummond’s workplace romances took on new life when he recently married another woman from Google’s legal department.”

Read the  NY Times article.

When it comes to physician employment agreements, non-compete provisions can be controversial and tricky, warns A. Kevin Troutman in Fisher Phillips’ Non-Compete and Trade Secrets Blog.

Such provisions can “restrict a doctor from practicing in a specified geographic area for a stipulated period of time after termination of their employment,” he writes. “The key question is when do such provisions become unreasonable? The analysis becomes even more complicated when factoring in the unique bond between patients and their doctors. After all, most patients’ sense of loyalty lies with their physician, not with a particular hospital, clinic or medical group.”

Read the article.

While prohibiting disparagement of co-workers, products and services is lawful, prohibiting disparagement generally of the employer, management, or policies is not, according to a memo from the  National Labor Relations Board, the Office of General Counsel.

Fiona W. Ong discusses the memo in an article for Shaw Rosenthal.

The memo was in part a response to a law firm’s employee agreements that contained a provision prohibiting critical comments about the firm. Several former employees posted negative reviews about the firm on various websites, including Glassdoor.com, Indeed.com, Avvo, Yelp, and Yahoo.business. The law firm then filed suit against them for breach of contract and defamation.

Read the article.

The Salt Lake Tribune reports that the Utah Transit Authority’s former general counsel is suing the agency for $300,000 in deferred bonuses and benefits that leaders had voided as “unconscionably high.”

The agency responded in state district court by counter-suing Bruce Jones, alleging “fraud and legal malpractice.”

Jones claims he negotiated for the bonuses in exchange for keeping his base salary lower. The agency claims Jones represented “both himself and UTA in salary negotiations” on contracts that gave him the generous benefits, which were never approved by the board.

Read the Tribune article.

Jones Day has filed a motion seeking sanctions against plaintiffs who filed a $200 million lawsuit alleging that the law firm discriminates based on gender and motherhood, reports the ABA Journal.

The firm alleges in the sanctions motion that the plaintiffs made up the lawsuit’s pay-bias claims “out of whole cloth” and seeks their dismissal, writes the Journal‘s Debra Cassens Weiss. Jones Day also is seeking an order for the plaintiffs’ lawyers to pay fees and costs that the firm spent to litigate the motion.

Jones Day has claimed that the plaintiffs in the original suit wrongly assumed that female associates at the firm were paid less than their male counterparts.

Read the  ABA Journal article.

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.

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.

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.

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.

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.

Bankrupt coal company Blackjewel has agreed to pay roughly $5.1 million to cover back wages of more than 1,000 its Kentucky, Virginia and West Virginia miners, reports The New York Times.

For two months this summer, out-of-work miners blocked a train full of coal from shipping out of an eastern Kentucky mine, demanding weeks of unpaid wages after their employer went bankrupt and shut down operations in the middle of an afternoon shift, writes the Times‘ Mihir Zaveri.

The company did not file a mandatory 60-day advance warning and did not post a bond, required by Kentucky law, to cover payroll. And workers did not receive pay for their last week on the job. Paychecks for two previous weeks bounced.

Read the  NY Times article.

Over the course of the past several years, several states have banned or severely restricted the ability of businesses to bind low-wage workers to post-employment restrictive covenants, points out a Seyfarth Shaw client alert.

“While such legislation trickled out over the last several years, 2019 has seen five additional states enact prohibitions on utilizing non-compete agreements for certain low-wage employees, with at least seven other states and the District of Columbia considering similar non-compete legislation,” write the authors, Justin K. Beyer and Daniel P. Hart.

Because these new laws and other developments in restrictive covenant law over the past year may require changes to a company’s template restrictive covenant agreements, companies should consider reviewing and revising their template agreements more broadly by the end of the year, the authors advise.

Read the article.

To reduce the risk of a class action disrupting business operations and impacting revenue, businesses may want to consider including arbitration clauses in their employment and consumer agreements, advises Patrick K. Burns in a blog post for PilieroMazza PLLC.

Many businesses include arbitration clauses in employment and consumer agreements in an attempt to shield themselves from class action lawsuits, he explains. “The success of these types of clauses in accomplishing the same largely depends upon its wording, the respective jurisdiction, and the nature of the underlying agreement.”

In his post, he demonstrates how, if class arbitration is not explicitly addressed in an arbitration agreement, it cannot be compelled.

Read the article.

The prohibition in New York state on requiring nondisclosure sexual harassment claims in nondisclosure agreements has been strengthened, reports Hogan Lovells.

The law has been strengthened to include all claims of discrimination, harassment and/or retaliation in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination … that would prevent the disclosure of the underlying facts and circumstances … unless the condition of confidentiality is the complainant’s preference.”

Authors Michael E. DeLarco and Zachary Siegel explain that if the employee requests confidentiality, then the agreement may contain this provision.

Read the article.