When a Google employee wrote in a memo that women are not as qualified as men to be software engineers, he learned the hard way that free speech protections only go so far, writes Tracey Lien for The Los Angeles Times.

“One thing many misunderstand about the 1st Amendment is that it only protects the public’s right to free speech from government censorship — meaning it doesn’t apply to the relationship between private employers and employees,” Lien points out.

In her article, she discusses what protections employees have, what Google’s case entails, Google’s options, and how things might have been different.

Read the LA Times article.

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Employers must ensure that their supervisors do not unwittingly modify the at-will relationship with employees, warns Pullman & Comley.

“Statements such as ‘you’ll have a long career here’ or ‘you’ll be taken care of’ may be interpreted by an employee to mean that an implied contract of employment has been formed,” writes Margaret Bartiromo. “Connecticut courts recognize a claim for wrongful termination based on an implied employment contract if the employee can prove that the employer agreed, by words or action, not to terminate the employee without just cause and that the parties agreed on definite terms (such as compensation and fringe benefits) that are supported by consideration (such as a bonus or pay raise).”

She added that employee handbooks should state that the at-will arrangement can only be altered in a writing signed by the employee and an authorized officer of the company.

Read the article.

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Some companies have taken the idea of demanding loyalty through noncompetition agreements a bit too far, writes Alan Greenblatt in Governing.

“They are forcing workers at all levels of the business to sign noncompete agreements, barring them from leaving to join another company in the same field for a specified period of years. Those contracts may be defensible for the head of research at a pharmaceutical company, or even a top-flight software engineer, but sandwich makers, yoga instructors and summer camp counselors have also been prevented from jumping to competitors,” according to Greenblatt.

He quotes Evan Starr, a management professor at the University of Maryland: “If only CEOs were signing these, I don’t think anybody would care about it.”

Read the article.

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Aliya Ramji, director of legal and business strategy for Figure 1 Inc., responds to a question from a corporate lawyer who asks about the most important parts of a non-disclosure agreements.

Writing in the ACC Docket, she explains that she uses two strategies to keep up with the volume of NDAs.

The first is to draft a template NDA for the business unit. Then, in order to better facilitate the review process, she develops negotiation parameters for the business units.

In the article, she discusses some key elements to include, including identification of the parties, defining the confidential information, the purpose of the disclosure, what is excluded, and the term.

Read the article.

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Executives and other high-level employees often negotiate a contractual provision requiring the payment of severance if terminated without “Cause” prior to the expiration of a term agreement, points out Bill Wortel in Bryan Cave’s At Work blog.

“Too often, employers limit the definition of Cause to intentional misconduct that harms the company, criminal behavior, or the executive’s death. Such a narrow definition ties the employer’s hands when an executive is not making a good-faith effort to perform well or is performing very poorly despite reasonable efforts,” Wortel writes.

He advises that the agreement should include a definition of cause that provides the company with flexibility to terminate an executive for legitimate, non-discriminatory business reasons.

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Clarence Webster III, writing in Bradley Arant Boult Cummings’ Labor & Employment Insights, asks and answers the question:  Can you look at an employee’s personal email account if you access it on company equipment?

“A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that,” he warns. “In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers ‘for purposes of backup protection.'”

Webster discusses the facts of the case and concludes that employers should be wary of accessing an employee’s web-based email account without permission.

Read the article.

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The ABA Journal reports that only 1 percent of plaintiffs who file federal job discrimination, harassment and retaliation claims win on the merits at trial, according to an analysis by the Lex Machina legal analytics firm.

The article by Stephen Rynkiewicz discusses Lex Machina’s new employment litigation search and analysis module that covers findings of hostile work environment, retaliation and Title VII issues such as race bias, as well as discrimination based on age, equal rights, military, pregnancy and rehabilitation.

“Lex Machina reviewed nearly 72,000 cases and found that nearly three-fourths them settle, while employers prevail on summary judgment 13 percent of the time,” writes Rynkiewicz. “In more bad news for plaintiffs, only 192 damage awards since 2009 included punitive damages.”

Read the ABA Journal article.

Above the law and Lex Machina will present a webinar on trends and legal analytics for employment litigation on Thursday, July 13, at 12 p.m. EDT.

David Lat, founder of Above the Law, says the event will address such questions as: The What do recent political and economic changes mean for the employment litigation landscape? How can knowledge management and technological tools help litigators navigate the transformations in this sector?

Lex Machina is expanding its Legal Analytics to a new practice area, Employment Litigation, shedding light on this rapidly evolving area of law, Lat writes. The webcast will feature panelists discussing new employment litigation data, with never-before seen trends and insights about judges, parties, lawyers and law firms.

Register for the webinar.

By Natalie Lynch
Lynch Law Firm PLLC

Today, many people prefer texting over many other forms of communication such as calling or emailing the recipient. This is an efficient form of communication because individuals can send a quick message about something important to them within a few seconds rather than being busy on a call for several minutes. Despite its expedience, texting in the workplace can carry certain risks for employers and may pose some problems.

Potential Problems

One of the most serious concerns that employers have about texting in the workplace is its association with productivity. Employers do not want to see their staff distracted and busy concentrating on personal matters instead of the job at hand.

Another concern is that texting in the workplace can cause dangerous distractions. For example, employees may drive forklifts in industrial settings and may drive to complete sales calls or work errands. Texting while driving continues to be a major source of concern with distracted driving being the primary cause of accidents today.

Texting in the workplace also poses risks concerning privacy issues. Work videos sometimes go viral and often in a negative way for employers. Employees may send a video message to a friend, family member or rival that does not paint the employer in the best light. These messages can damage the company’s reputation. Also, confidential information or trade secrets may be stolen when employees take pictures of this information and send it to someone else.

Creating a Policy

Due to the many risks that texting in the workplace can cause, many employers may decide to institute cellphone policies that discuss the use of cellphones, texting and calling in the workplace. These policies set out the rules and expectations of the business. For example, there may be a complete prohibition on texting while driving for work purposes. Additionally, they may state that employees are not permitted to text while they are meeting with a customer or client in person. A common and important policy many employers implement is that no video or audio recording is permitted at work. The policy may outline certain disciplinary measures that the employer may have the discretion to take if the employee does not follow the rules. These actions may be progressive in nature, such as starting with a verbal warning and then moving up to a written warning. The employer should carefully consider a number of factors before implementing a cellphone policy in the workplace.

Considerations

While the simplest solution to avoid the problems texting in the workplace poses may be to ban all use of cellphones, this action will likely negatively impact employee morale. Many individuals depend on their cellphones to keep them in touch in important ways and employees may fear what to do in case of an emergency. A complete ban on cellphone use or texting may be considered antiquated and isolating to employees. When developing a policy for the business, it is important to consider the size of the business and the realistic ability to monitor employees’ observation of the cellphone policy. Additionally, the culture and type of business is important to consider.

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Bryan K. Wheelock of Harness Dickey has posted an item on the firm’s website contemplating what perfection might look like in regard to an employee agreement.

“Lawyers strive for perfection in their work, but time constraints, budgets, and other factors work against us. Also, perfection is not always the same thing in every circumstance,” he writes.

He discusses such topics as confidentiality, non-compete clauses, non-solicitation, assignment of inventions, access to computers, the return of employer property and confidential information, and publicity and social media restrictions.

Read the article.

A former associate filed a national class action against Steptoe & Johnson, claiming the giant law firm pays only lip service to gender equality, but has a male-dominated leadership that discriminates against women in pay and promotions, according to a Courthouse News Service report.

Ji-In Houck, of Los Angeles, says her starting pay at the firm as a contract attorney was barely half the $165,000 that inexperienced male lawyers made — though she had come to Steptoe with two years of experience in civil litigation.

“During her three years in Steptoe’s Century City office, her salary typically was 30 percent to 40 percent less than male lawyers with comparable experience, she says in her June 22 complaint,” writes Don Debenedictis. “When she left in March 2016, she was earning $200,000 a year, compared to the $230,000 paid to men at her level.”

Read the Courthouse News article.

Employers are obligated to investigate certain discrimination complaints and they are required to prevent retaliation, advises Natalie Lynch of Lynch Service Company. The problem comes when employers investigate workplace affairs without a worthwhile non-retaliation policy.

In an article posted on the company’s website, she explores the interplay between non-retaliation policies and workplace investigations.

She discusses what can result when no anti-retaliation policy is in place, the relevant laws, and the importance of establishing clear policies.

Read the article.

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Uber Technologies Inc. said it fired 20 employees and was improving management training following an investigation by a law firm into sexual harassment allegations and other claims at the ride-hailing company, according to a Reuters report.

The firings came after a report by law firm Perkins Coie, which Uber hired to look into claims of harassment, discrimination, bullying and other employee concerns, report Joseph Menn and Heather Somerville.

Perkins Coie investigated 215 staff complaints, taking action in 58 cases and no action on 100 more. Uber said 54 were related to discrimination, 47 related to sexual harassment, 45 to unprofessional behavior, 33 to bullying and 36 to other types of claims, according to the Reuters story.

Read the Reuters article.

On their firm’s website, Gaetan J. Alfano and Joseph L. Gordon of Pietragallo Gordon Alfano Bosick & Raspanti discuss a recent case that dealt with the question of what happens to the restrictive covenants in an employment contract when an employee converts to at-will status.

In Metalico Pittsburgh Inc. v. Douglas Newman, et al., an employer had three-year contracts with two high-level executives. After the three-year period ended, they continued to work as at-will employees. A year later, the employees joined a competitor and solicited Metalico’s customers and solicited Metalico employees to join the new employer.Metalico sought a preliminary injunction to enforce the restrictive covenants.

“According to the Superior Court, because the employment agreements contained express language indicating that the employees agreed to be bound to the covenants for the duration of their employment, their status as at-will employees was irrelevant.,” the authors write.

Read the article.

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Bloomberg Law is reporting that Proskauer Rose has become the latest Big Law firm to be hit with a gender discrimination lawsuit by a female partner.

The plaintiff brought the case against her employer under a pseudonym. 

“According to the redacted complaint filed Friday, the plaintiff, an unnamed partner in Proskauer’s Washington, D.C. office, was objectified by male partners who made inappropriate comments about her physical appearance, paid less than male partners who were similarly or less productive than she was, and excluded from projects and client development activities once she began complaining,” writes reporter Stephanie Russell-Kraft.

The defendant responded by saying the suit is “groundless” and “meritless.”

Read the Bloomberg article.

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Unhappy with his boss and former friend’s close association with the Trump administration, David Magerman aired his concerns about Renaissance Technologies President Robert Mercer in a February interview with the Wall Street Journal, according to a post on the website of Androvett Legal Media.

Although the hedge fund’s legal department had assured the research scientist that his interview would not violate company policy, Magerman was fired shortly after publication of the article, which labeled Mercer a racist.

The former partner is now fighting back with a wrongful termination lawsuit, which should serve as a cautionary tale for all companies, says Dallas labor and employment attorney Leiza Dolghih of Godwin Bowman & Martinez.

“It is important for a company to establish and enforce clear rules on media interaction, particularly in situations such as this where you have high profile leadership or there is a potential for controversy. Here you had an employee who claimed that the Chief Compliance Officer orally told him that his interview was authorized,” she says. “No matter how respected he may have been at the firm, Magerman was known to have divergent views that were likely to be explored during the course of the interview. Even in instances where an employee is allowed to talk with the media, you cannot give them blanket assurances about repercussions.”

The Littler law firm has released the results of its sixth annual survey, completed by 1,229 in-house counsel, human resources professionals and C-suite executives. The Littler Annual Employer Survey, 2017 reveals that the change occurring in Washington, D.C., and in local governments – combined with technological advances and shifts in how work is performed – is creating an unprecedented level of uncertainty in the workplace.

A release from the firm continues:

A Complex Patchwork of State and Local Laws, Deep Uncertainty at Federal Level

The vast majority of employers expect the Trump administration to prioritize reforming healthcare and employee benefits law (89 percent) and immigration policies (85 percent) in 2017. However, for most regulatory issues, the percentage of respondents who anticipate an impact on their workplace over the next year remains relatively unchanged from last year’s survey. That includes the Affordable Care Act (85 percent in 2016 to 83 percent in 2017) and enforcement by the Equal Employment Opportunity Commission (78 percent to 76 percent), National Labor Relations Board (56 percent to 55 percent) and Department of Labor (82 percent to 81 percent). Immigration reform was the exception as 63 percent said they expect an impact in 2017, up from 40 percent in 2016.

“With the profound changes in Washington, D.C., it may be initially surprising that respondents do not anticipate more of a near-term impact on their businesses,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “However, given the general climate of uncertainty and delays in appointments to government agencies, employers likely expect it to take time before they start to see how the president’s agenda is carried out and personally feel an impact in their workplaces.”

The host of new or amended labor and employment requirements at the state and local levels is creating compliance challenges for the majority of respondents (79 percent). In an effort to keep up, employers are updating their policies, handbooks and HR procedures (85 percent); providing additional employee training (54 percent); and conducting internal audits (50 percent).

“As states and municipalities continue to propose and enact a dizzying array of rules and regulations, it is no wonder employers are struggling with the increasingly fragmented landscape,” said Lotito. “With the Trump administration working to reduce federal regulations, employers can expect a growing patchwork of employment regulations as states and municipalities look to fill a perceived void at the federal level.”

Of the array of changes at the state and local levels, respondents have been most impacted by paid leave mandates (59 percent), background check restrictions (48 percent) and minimum wage increases (47 percent).

Uncertainty Surrounding Healthcare Reform

Even though survey responses were collected before Republicans withdrew the American Health Care Act in late March, more than a quarter (27 percent) were already uncertain about the impact of repealing the ACA’s employer mandate. And another 28 percent said they did not anticipate an impact at all.

“Employers face even more questions about the future of the ACA, as well as the extent to which the administrative process can and will be used to change aspects of the law, than when they responded to our survey,” said Ilyse Schuman, co-chair of Littler’s Workplace Policy Institute. “In this environment, employers can continue to expect a certain level of uncertainty surrounding employer-sponsored health coverage in the months ahead.”

Only 4 percent of respondents anticipate dropping coverage for some full-time employees if they are relieved of the ACA’s employer mandate, but 18 percent said they would allow more employees to work more than 30 hours a week.

“The responses indicate that employers are committed to providing health insurance for their full-time employees,” said Steven Friedman, co-chair of Littler’s Employee Benefits Practice. “However, they also suggest that a repeal of the mandate would give employers more flexibility to set work schedules based on the needs of their businesses, without fear of triggering a requirement to provide health insurance.”

EEOC Expected to Prioritize Hiring Practices, LGBTQ Rights and Pay Equity

Hiring practices – including the consideration of criminal or credit histories in the hiring process and pre-employment testing or screening practices – was the area where most respondents (51 percent) expected an increase in EEOC workplace discrimination claims over the next year, closely followed by LGBTQ rights (46 percent) and equal pay (46 percent).

“The transitions in Washington, D.C., appear to have curtailed employers’ expectations for EEOC enforcement activity around LGBTQ rights and equal pay, which rose sharply in the 2016 survey, when 74 percent and 61 percent of respondents, respectively, expected increased enforcement around those issues,” said Barry Hartstein, co-chair of Littler’s EEO & Diversity Practice. “Nonetheless employers continue to expect substantial enforcement over the next year as pay equity and discrimination based on sexual orientation remain priorities not only for the EEOC, but for the courts, state and local governments, the plaintiffs’ bar and the general public.”

FMLA Leave Presents Headaches

Among the employee requests that are most difficult to accommodate, leaves of absences under the Family and Medical Leave Act emerged as the presenting the greatest challenges. The majority of respondents indicated difficulty with managing intermittent FMLA leave (65 percent) and leaves that extend beyond FMLA requirements (55 percent), followed by remote or work-from-home arrangements (37 percent) and modified or reduced schedules (36 percent).

“Nothing is more disruptive to the operation of a business than unpredictability. When employees are repeatedly and unexpectedly off work, employers have to scramble to cover their responsibilities and manage potential resentment from employees who are inevitably asked to do more,” said Hartstein. “The increasingly common practice of requesting flexible work arrangements is also creating a whole new layer of legal and practical challenges for employers.”

Data Privacy and Breach Prevention Top of Mind

As the volume of data breaches originating with employees continues to grow, 63 percent of respondents said their HR and IT departments are collaborating on information security policies. Just over half (51 percent) said they were providing additional training to employees, and a smaller percentage said they were utilizing cyber-incident response plans (29 percent) and updating employee contracts to cover confidentiality obligations (23 percent).

“It is encouraging to see HR collaborating with IT to reduce the risk of data breaches that originate with employees. Information security policies prepared only by IT often focus on technical safeguards, whereas involving HR in the process helps to address the human elements of information security,” said Philip Gordon, co-chair of Littler’s Privacy and Background Checks Practice. “However, our results suggest that employers can take additional steps to guard against and prepare for employee-initiated data breaches, including ensuring all employees are trained on policies and know how to recognize and then report a security incident.”

Among respondents from large-cap organizations, the majority (56 percent) said global data privacy was a key area of concern in doing business outside of the U.S. “This concern likely stems from the significant restrictions on sharing personal data of employees in Europe and in the many countries that impose stricter rules than the U.S.,” noted Philip Berkowitz, U.S. co-chair of Littler’s International Employment Law Practice.

The survey results were released at Littler’s 34th annual Executive Employer Conference held May 10-12, 2017, in Phoenix, Arizona, and attended by many of the employers who completed the survey.

Click here for The Littler® Annual Employer Survey 2017 Report

Click here to view the survey infographic

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The U.S. House of Representatives voted to pass a bill that Republicans have promoted since the Newt Gingrich era, one that would allow private-sector employees to exchange overtime pay for “compensatory time” off, electing to accrue extra hours off rather than extra pay in their wallets, The Washington Post reports. The bill passed 229 to 197, largely along party lines.

“Under the proposed changes, eligible employees — if their employer decides to offer the option — would be able to voluntarily choose to receive comp time they can bank and use at a future date in lieu of immediate overtime pay in their paychecks,” reporter Jena McGregor explains. “If they change their minds and want the pay after all, employees would have the option of ‘cashing out,’ with the employer required to pay the overtime within 30 days.

Some opponents of the legislation say they worry that employers will feel pressured to choose comp time.

Read the Washington Post article.

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Plano, Texas attorney Jason Van Dyke was all set to begin a new chapter of his legal career as an assistant district attorney in Victoria County. So he was startled to receive notice that the District Attorney’s office had rescinded its job offer with no explanation. Van Dyke speculates the reversal could be related to media coverage of a Twitter exchange he had involving a case he was working on in 2014. He has since filed suit seeking answers from Victoria County.

In a post on the website of Androvett Legal Media & Marketing, Rhonda Reddick quotes Dallas labor and employment attorney Leiza Dolghih of Godwin Bowman & Martinez, who says this is a cautionary tale for both employers and job-seekers.

The post continues:

“Many employers these days Google prospective hires and look them up on social media for any evidence of red flags that indicate that the applicant may be violent, unethical, unstable or simply have bad judgment. These behind-the-scenes, informal background checks often result in rejection, or even withdrawal, of a job offer,” she says.

While a Texas employer may reject a prospective candidate for a myriad of reasons, including social media activity, a prospective employee cannot be rejected on the basis of race, gender, religion, age or other protective categories – information that can often be gleaned from social media. If a candidate can show that a job rejection was based on information protected under employment law, there could be basis for a claim of discrimination.

“However, in this case, if the employer discovered what they considered unsavory comments, or possible evidence of poor judgment or lack of self-control, after offering Mr. Van Dyke a job, the withdrawal of that offer based on the newly discovered information, would be acceptable,” says Ms. Dolghih. “While everyone has the right to speak their mind freely, that speech may result in rather harsh consequences in terms of employment.”

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An expanded lawsuit filed Tuesday accuses Fox News Channel of racial discrimination “that appears more akin to Plantation-style management than a modern-day work environment,” reports the Associated Press.

Eight former and current Fox employees joined an existing case involving three former Fox workers who have accused a since-fired Fox financial executive of bias. It also expands the case to include Dianne Brandi, Fox’s chief counsel.

Fox News has denied the allegations.

“One plaintiff, on-air personality Kelly Wright, who’s black, said he’d been effectively sidelined and asked to perform the role of a Jim Crow, an insulting slang term to refer to a black man, according to the lawsuit. Wright said [Bill] O’Reilly, who’s white, refused to show a piece Wright had prepared after racial protests in Ferguson, Missouri, because they showed blacks in too positive a light,” writes AP reporter David Bauder.

Read the AP article.

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