Kurt Ehresman, 52-year-old former senior counsel for global intellectual property at Hershey Co., has sued his ex-employer, claiming he was replaced with a younger, black, female lawyer in a case of race, age and sex bias.

Ehresman, who is white, filed suit Feb. 6 with the U.S. District Court for the Western District of Pennsylvania, according to a Bloomberg Law report.

Bloomberg’s Patrick Dorrian writes:

“The move came roughly five years after Hershey recruited him to be ‘the first licensed practice attorney’ in the candymaker’s more than 100-year history, Ehresman charges in the complaint. And it required him to give up his ‘entire portfolio of clients’ and private practice as a condition of joining Hershey, Ehresman says.”

Read the Bloomberg Law article.

Dale Kleber was 58 years old when he applied for a senior staff attorney position with CareFusion Corporation. On paper, his 25 years of legal experience, including serving as general counsel for a large corporation, showed he was qualified for the job.

But the position sought someone with three to seven years of legal experience. Kleber didn’t receive an invitation for an interview, but a 29-year-old lawyer was hired instead. Kleber sued under the ADEA, arguing that the seven-year experience cap on the position discriminates against older workers by automatically disqualifying them for the job.

Courthouse News Service reports that Kleber’s age discrimination suit failed when the en banc Seventh Circuit ruled Wednesday that the protections of the Age Discrimination in Employment Act apply only to current employees, not to job applicants.

Read the Courthouse News article.

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Unless an employment contract specifies the forum for arbitration and the process by which the arbitration will be conducted, a court may find that the parties have not reached an agreement to arbitrate, warns a post on the website of Porzio, Bromberg & Newman.

The authors discuss a New Jersey case that illustrates the need to use care in drafting.

An appellate court found that the arbitration clause in the contract did not specify what forum would substitute in place of the jury trial.

Read the article.

A federal jury in Miami set a $21.5 million verdict for a Haitian immigrant in a religious accommodation case who lost her job at a Conrad Hotel because she would not work on Sundays because of religious beliefs.

The Washington Post reports that Marie Jean Pierre informed the hotel when she was hired about a decade ago that she was a missionary for the Soldiers of Christ Church. Most of the time the hotel allowed her to have Sundays off, but in 2015 a kitchen manager started insisting that she work on Sundays.

“Pierre’s attorney, Marc Brumer, said the hotel had an obligation to ‘reasonably accommodate’ their employees’ religious beliefs — and argued they could have easily done so for Pierre. Instead, he said, they charged her with absenteeism and fired her,” writes the Post‘s Amy B. Wang.

A cap on punitive damages will limit the payout to about $300,000 if the verdict is upheld.

Read the Post‘s article.

A post on Foley & Lardner’s Labor & Employment Law Perspectives blog discusses negotiation styles for employers when the time comes for a new labor contract.

“There isn’t a one-size-fits-all answer as to what works best,” writes Thomas C. Pence. “Some people yell a lot and are very effective with it. Others try yelling and come off sounding cartoonish (never a good thing in negotiations). The best advice is to be true to yourself.”

Pence advises contract negotiators to be self-assured and determined in arguing their positions.

Read the article.

Business Insider reports that about 2,000 of HP’s and Hewlett-Packard Enterprise’s salespeople will finally be getting their share of a $25 million settlement paid to them by the two companies.

“In 2017, HP agreed to the $25 million settlement, from which the lawyers will take their cut — but it was just this week that the court approved the settlement arrangement, according to Business Insider’s Julie Bort. “That means the money should be soon forthcoming to the plaintiffs at last, according to the final court documents seen by Business Insider.”

The company’s salespeople complained that the company’s antiquated computer systems were not doing a good job of calculating their commissions.

Read the Business Insider article.

Steven P. Gallagher of Akerman LLP offers some tips on what to do — and not do — when considering arbitration agreements for new hires.

He discusses some of the advantages and potential disadvantages to having arbitration agreements in place for employees.

“Because arbitrations are private, the proceedings, claims, and ultimate outcomes are ordinarily confidential. Most interesting to employers is that arbitrators tend to award lower damages than juries,” Gallagher writes.

But sometimes arbitration is “neither quicker nor less expensive than litigation, and arbitrators are sometimes inclined to ‘split the baby,’ even if the law is clearly on your side.”

Read the article.

As an in-house counsel — the individual tasked with mitigating risk for your employer — sometimes you have to make a decision much hastier than you might normally be comfortable with doing so, writes Stephen R. Williams in a column for Above the Law.

Williams, who works in-house with a multi-facility hospital network, tells about a crisis that dropped into his lap late on the Friday before the week of Christmas. It involved a report from an employee who said one of their coworkers made what was perceived to be a comment reflecting a suicidal thought.

His column tells how he dealt with the situation, even though the colleagues who usually handle such cases were unavailable because of the holiday season.

Read the article.

Non-compete agreements are subject to state law, and states vary in their treatment of them. There is no one-size-fits-all non-compete agreement, and the enforceability of a non-compete agreement turns upon the state law under which it is construed, points out a blog post from Knobbe Martens.

A case in point involves two high-end, off-price fashion brands are duking it out over an employee jumping ship, write authors Alexander D. Zeng and Mark Kachner.

“Generally, states that are more willing to enforce non-compete provisions do so for countervailing policy reasons: to prevent trade secret misuse, reduce the cost of trade secret litigation, protect employers’ investments in employees, and favor freedom of contract. The outcome of this lawsuit will be heavily impacted by the state law governing Arcuri’s non-compete agreement.”

 Read the article.

A California appellate panel determined that a law firm’s arbitration agreement with a partner was unconscionable, reversing a trial court’s grant of a motion to compel arbitration in an employment dispute, according to a post on the website of Manatt, Phelps & Phillips.

In the case, a litigator who had been employed at Winston & Strawn sued the firm, asserting claims of discrimination, retaliation and wrongful termination. A trial court granted the firm’s motion to compel arbitration.

“The arbitration provision in the employment agreement signed by [the plaintiff] failed to meet the standard of Armendariz v. Foundation Health Psychcare Services, Inc., the court said, and was unconscionable. Further, the taint of illegality could not be removed by severing the unlawful provisions without altering the nature of the parties’ agreement, leading the panel to void the entire agreement and send the case back to Superior Court.”

Read the article.

The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied writes John Lewis in BakerHostetler’s Employment Class Action Blog.

He discusses the recent Fifth Circuit opinion in Forby v. One Technologies, L.P., which illustrates the difficulty of applying the “prejudice” requirement in a consumer fraud and unjust enrichment class action.

In reversing a district court ruling, the appellate court highlighted some analytical problems that apply equally in the employment law context.

Read the article.

The end of the year brings an onslaught of China Employer Audits, and with those audits comes an onslaught of China employment law questions, writes Grace Yang in the Harris Bricken China Law Blog.

She discusses some of the most commonly asked questions on China employment contracts and provides short answers to each of them.

The issues include using an English version of contracts, contract templates provided by Chinese labor authorities, termination of signed China employment contracts, open-term contracts, offer letters, and the need to review contract templates.

Read the article.

A recent post on Robinson+Cole’s Manufacturing Law Blog discusses a recent court decision that underscores the need for manufacturers to exercise caution when seeking to impose post-employment restrictions on key employees.

Author Matthew Miklave explains that manufacturers often seek to bind employees to such restrictions (non-compete, non-solicitation and confidentiality obligations) in order to protect customer lists, pricing information and other confidential or “inside” information which gives them a competitive advantage in the market-place.

The case, Oxford Global Resources, LLC v. Hernandez, is an example of why these agreements must be carefully drafted to be effective when needed.

Read the article.

In a new podcast, two shareholders in Ogletree, Deakins, Nash, Smoak & Stewart discuss a number of important considerations for employers to keep in mind when drafting a severance agreement.

Milwaukee shareholders Bud Bobber and Brian Radloff offer some practical tips for drafting severance agreements, from how to go about deciding how much to offer an employee to the key terms of the agreement.

The [podcast can be accessed on the Ogletree Deakins website.

Listen to the podcast.

Federal district courts in New York and New Jersey recently turned aside employee attacks on arbitration agreements challenged on the grounds that the employer’s communication of its arbitration policy via email was inadequate, reports the Gibbons Employment Law Alert.

“The courts in both Lockette v. Morgan Stanley and Schmell v. Morgan Stanley held that the employees’ assertions that they never saw the email forwarding the terms of the arbitration agreement were insufficient to overcome the employer’s evidence that the email had been delivered to the employees’ email inboxes,” explains Richard S. Zackin.

But employers must keep in mind that they must comply with relevant state contract law, cautions Zackin.

Read the article.

Writing in ContractsProf Blog, Myanna Dellinger discusses a case that “nicely demonstrates how the consideration doctrine is still relevant and, as always, the importance of getting contracts in writing even though they do not have to be.”

The plaintiff had agreed to do some work for the defendant for $10 an hour, with the understanding that he would receive a $150,000 bonus after nine months. Somewhere along the way, the employer gave him a raise to $11, and then, after a total of 18 months of labor, fired him and refused to pay the bonus.

Dellinger explains that the court apparently found that because the plaintiff actually received one single dollar more per hour over nine months, there was no consideration for the original promise of working for a “reduced salary.”

Read the article.

David Drummond, the  chief legal officer of Google parent Alphabet Inc. and a one-time Wilson Sonsini Goodrich & Rosati partner, was cited in a New York Times report about the allegedly lax approach that Google has taken to relationships between supervisors and their subordinates.

Bloomberg Law focused  on the part of the report that detailed an alleged extramarital affair involving Drummond and a subordinate, an in-house senior contract manager at Google. The affair resulted in the woman giving birth to Drummond’s child, the Times reported.

“The report, which cited [Jennifer] Blakely and other Google employees, said she and Drummond had a son in 2007,” Bloomberg reports. “Thereafter, it said, Drummond disclosed the relationship to the company—and Blakely was asked to leave because relationships between managers and subordinates were ‘discouraged.’”

Read the Bloomberg Law article.

Some state attorneys general and the U.S.  Department of Justice are looking into no-poach agreements that some companies are including in their franchise operating agreements, reports Skadden, Arps, Slate, Meagher & Flom.

“Such clauses typically prohibit franchisees from hiring employees directly from the franchisor or other franchisees for up to six months following the end of their employment. [Washington State Attorney General Bob] Ferguson has been touting the ongoing success of his investigation with respect to fast food chains, and franchise-based chains in other industries appear to be his next target,” according to the authors.

“Any employers that currently utilize no-poach agreements or are considering doing so should be sure to examine whether there are valid pro-competitive justifications for the agreement that outweigh any anti-competitive effect and whether the benefits of the no-poach agreement are worth the risk of the potential governmental or private challenge that is likely to occur.”

Read the article.

Above the Law reports that Baker McKenzie released a joint report last week that admits the way the firm handled the alleged sexual assault by a partner at the firm involved “a number of shortcomings … which we very much regret.”

A partner in the firm’s London office was accused of assaulting an associate after a firm event six years ago, recalls Above the Law editor Kathryn Rubino. “The associate reported it to the firm, and they investigated. But instead of getting rid of the offending partner, the firm just sanctioned him and reached a settlement with the associate who was victimized. It was only after the story became public that the firm bowed to pressure and the accused partner left the firm.”

Read the Above the Law article.

A recent case from the United States District Court for the Western District of Pennsylvania highlights how expensive a Fair Labor Standards Act case can be when an employee prevails for unpaid overtime compensation, writes Jay Carr in Vorys, Sater, Seymour and Pease’s Energy & Environmental Law Blog.

The article describes Sammy Mozingo v. Oil States Energy Services L.L.C., in which oil field workers in Texas filed a class action alleging that their employer Oil States had misclassified them as exempt from overtime laws. Most of the employees settled, but eight went to trial, resulting in Oil States paying damages, fees, and costs totaling $3,385,884 for just these eight employees.

Read the article.