Bloomberg Law reports that law students from elite universities protested outside DLA Piper offices in three cities Oct. 10, calling on the firm to drop arbitration agreements from employee contracts.

“Demonstrators from Harvard, Columbia, NYU and Georgetown law schools handed out leaflets in New York, Washington, and Boston,” writes Bloomberg’s Stephanie Russell-Kraft. “They’re part of a student-led initiative leveraging their status as top Big Law recruits to fight what they says is ‘harassment and discrimination in the legal profession.’”

DLA Piper partner Vanina Guerrero, who claims she was sexually assaulted and retaliated against by a fellow partner, said she is unable to bring those claims in court because of a mandatory arbitration agreement.

Read the Bloomberg Law article.

Justice Neil Gorsuch

The Supreme Court justices sounded closely split Tuesday and a bit uncertain over whether to make it illegal under federal law for companies and public agencies to fire employees solely because they are gay, lesbian or transgender, with Justice Neil M. Gorsuch likely the deciding vote, according to the Los Angeles Times.

Trump-appointee Gorsuch described the case as “really close…. Assume for the moment I’m with you on the textual evidence,” he told an ACLU lawyer representing a transgender woman who was fired from her job at a funeral home in Detroit.

“The four liberal justices, joined at times by Gorsuch, said they agreed that firing gay or transgender employees was discrimination based on sex as the law defined it,” writes the Times‘ David G. Savage. “But others, including most of the conservatives, said that Congress in 1964 did not mean to outlaw discrimination based on sexual orientation or gender identity.”

Read the  LA Times article.

Goldman Sachs and Dell Technologies will pay a combination of almost $17 million to settle separate Labor Department allegations of pay bias based on gender and race, reports Bloomberg Law.

“Both Goldman Sachs and Dell-EMC agreed to nationwide ‘early resolution’ agreements, whereby their compliance will be routinely monitored in exchange for five years free of random OFCCP audits,” explains Bloomberg’s Paige Smith. “These are at least the fourth and fifth ‘early resolution’ agreements with the agency, joining those with Bank of America, Performance Food Group, Cintas Corp., and US Foods Inc. ”

Read the Bloomberg Law article.

Duane Morris LLP and the Bar Association of San Francisco will present the 7th Annual Citywide Diversity and Inclusion Networking Event and Panel Discussion on “Standing Up for Justice: Challenging the Erosion of Civil Rights, Diversity and Inclusion.”

The event will be in the Duane Morris office at One Market Plaza, Suite 2200, in San Francisco on Thursday, Oct. 10, 2019, 5-8 p.m.

The panel will explain and share examples of how they became bias interrupters by making small tweaks to basic business systems (hiring, performance evaluations, assignments, promotions and compensation) that interrupt and correct explicit and implicit bias in the workplace. Instead of approaching diversity initiatives as large-scale culture changes, bias interrupters identify and change the constant flow of bias in basic business systems. Bias interrupters work because they change systems, instead of people.

Opening Remarks :

Doris Cheng, President, Bar Association of San Francisco
Christopher Punongbayan, Executive Director, California ChangeLawyers

Panelists:

Doris Cheng, President, Bar Association of San Francisco
Charles Jung, President, Asian American Bar Association of the Greater Bay Area
Catherine Ongiri, President, Charles Houston Bar Association
Jeff Kosbie, Co-Chair, Bay Area Lawyers for Individual Freedom
Christopher Punongbayan, Executive Director, California ChangeLawyers

Moderator:

Terrance J. Evans, Partner and Co-Chair of the Duane Morris LLP SF Diversity and
Inclusion Committee

Register for the event.

Three recent court decisions raise a few issues to keep in mind for employers to keep in mind when drafting arbitration agreements for employees, according to a post on Bradley Arant Boult Cummings’ Labor & Employment Insights blog.

The authors, Bridget Warren and Anne R. Yuengert, discuss the common characteristics that an agreement should include.

They also advise drafters to include class and collective action waivers and how to update existing agreements to include such a waiver while a lawsuit is pending.

Finally, they advise paying attention to state laws that affect what can be included in the arbitration agreement.

Read the article.

While US-based businesses are accustomed to working with at-will offer letters for prospective employees, these are mostly unheard of elsewhere, points out a post for McDermott Will & Emergy.

In most jurisdictions, detailed employment contracts are not only customary, but are required by law.

The post explains that companies must ensure the legal compliance of their contractual documentation for each country in which they do business. This includes engagement letters, employment offers, employment contracts, bonus schemes, stock option plans, etc.

Read the article.

Employers may not be aware that the National Labor Relations Board has issued an opinion holding that arbitration agreements that could be “reasonably construed” to prohibit an employee from filing unfair labor practice charges with the board are invalid under the National Labor Relations Act, warns a post from Foley & Lardner.

“What is significant about this unanimous employee-friendly decision is that even if the language in your arbitration agreement does not expressly prohibit the filing of an NLRB charge (or accessing the Board or its processes), you may not be safe from a determination that your agreement is invalid,” explains the author, Cristina Portela Solomon.

She lists three steps employers should take if they use arbitration agreements.

Read the article.

A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate, points out Stokes Wagner post.

In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eighth Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

The author, Jordan A. Fishman, discusses the reasons that acceptance via intranet system was insufficient.

Read the article.

In Seyfarth’s fourth installment in its 2019 Trade Secrets Webinar Series, Seyfarth attorneys Kristine Argentine, Eric Barton, and Katelyn Miller focused on the enforcement of non-competes and how the difficulty of enforcement of these restrictive covenants vary by state, especially based on recent legislation in various states.

The post includes a link to the webinar for on-demand viewing.

It also includes a summary of takeaways from the discussion.

Read the 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.

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.

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.

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.

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.

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.

The Energy Law Blog of Liskow & Lewis discusses a recent U.S. Supreme Court ruling that could have far-reaching implications concerning wage-and-hour laws for workers on oil and gas platforms located in open water on the Outer Continental Shelf.

Authors Jackie E. Hickman and Thomas J.McGoey II explain the background of the case:

“The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform.”

The Supreme Court found that federal law is exclusive and state law only applies where there “is a gap in federal law’s coverage.”

Read the article.

A former partner at Jones Day’s Silicon Valley office who accused the law firm of forcing her out after she raised concerns about its “boys’ club” culture has dropped her lawsuit in exchange for a return of capital she put into the firm, reports Bloomberg Law.

“Wendy Moore’s suit claimed the firm’s leadership retaliated against her after she voiced misgivings about its culture, pay transparency, and treatment of female attorneys,” writes Bloomberg’s Mike Leonard. “The complaint described Jones Day as a ‘fraternity’ where women are marginalized and objectified while male lawyers attend business meetings at strip clubs and sporting events.”

Read the Bloomberg Law article.

When drafting a China employment contract, one of the critical issues is always going to be the term of employment, points out Grace Yang, writing for Harris Bricken McVay Sliwoski’s China Law Blog.

She said the length of the employment term, especially the initial employment term, depends on the situation. But for new employees, her firm’s China employment lawyers usually recommend a three-year initial term, which usually works best when the employer wants that new employee to have a probation period.

“Because Chinese law requires that the probation period be proportional to the initial employment term, a three-year initial term means you can set the probation period for the maximum six months permitted by law,” she explains

Read the article.

An on-demand podcast episode of The Proskauer Brief discusses potential pitfalls that lurk in employment agreements and other employee compensation arrangements.

Speakers are Kate Napalkova, special employee benefits and executive compensation counsel, and associate Oleg Zakatov.

The podcast focuses on key contractual provisions that employers should incorporate into any document that includes a confidentiality covenant.

“Employers should be sure to tune in to see why involving your in-house team and outside executive compensation and employment counsel to regularly audit employment agreements, employee handbooks, independent confidentiality and IP assignment agreements, and other company policies is always a good idea,” according to an introduction to the podcast.

Listen to the podcast
or read a transcript.

Bloomberg Law reports that a federal judge has ruled that Nationwide Mutual Insurance Co. may have discriminated against an in-house attorney who had portions of both legs amputated after developing vascular disease.

The case now will go to a jury trial.

Nationwide pointed to Kevin Greenwood’s documented performance problems, but there’s evidence a non-disabled attorney with similar performance deficiencies wasn’t discharged, the court said, and there’s also evidence the other attorney was given more than a year to do better while Greenwood only got a few months before and a few weeks after receiving accommodations to improve his performance.

Greenwood testified that a reason he was behind in one of Nationwide’s performance criteria was because it took him longer to get to and from court following his leg amputations, the court said.

Read the Bloomberg Law article.