Attorneys general in 10 states and the District of Columbia have recently launched an investigation into the employment practices of eight fast-food franchises, according to the Fisher & Phillips Non-Compete and Trade Secrets Blog.

Associate Liane Dublinski Kozik writes that the group sent a joint letter to the companies requesting information on the companies’ use of restrictive covenants including “‘employee non-competition,’ ‘no solicitation,’ ‘no poach,’ ‘no hire,’ or ‘no switching’ agreements (collectively referred to as ‘No Poach Agreements’).”

“No-poach agreements should be limited in scope and duration, and if no-hire provisions are included, they should be limited to upper-level management,” she advises. “State-level scrutiny from legislators and attorneys general is not going away and likely to only increase.”

Read the article.

The former general counsel of Lionsgate Entertainment left the company amid allegations of sexual misconduct and abuse, reports Variety, citing a story in The Wall Street Journal.

“Wayne Levin resigned from the company in November of last year,” writes Gene Maddaus. “A former subordinate, Wendy Jaffe, told the Journal that Levin mistreated her for more than a decade, including non-consensual sexual conduct in 2002 and 2003. Jaffe left the company in 2016, and received a $2.5 million settlement.”

Jaffe said Lionsgate had violated a non-disclosure agreement, giving her the opportunity to speak about her experiences.

Jaffe was executive vice president of legal affairs and reported to Levin during her tenure.

Read the Variety article.

The Dallas Morning News is reporting that Texas Instruments chief executive and president Brian Crutcher has been removed from his position after violations of the company’s code of conduct.

Reporter Melissa Repko writes: “The Dallas-based semiconductor company said in a news release Tuesday that the violations were related to personal conduct and did not affect the company’s operations or its finances. It did not give details about the violation. But it appears the board acted after receiving a claim that it investigated, according to a video shared with employees.”

The company’s chairman and former CEO, Rich Templeton, has reassumed the role vacated with Crutcher’s sudden departure.

The Morning News also published a commentary titled “Why won’t Texas Instruments say more about CEO’s exit? It could be legal, cultural or worse.”

Read the Dallas News article.

According to a report released by the Equal Employment Opportunity Commission, employers are at an increased risk of age-discrimination litigation due to changing workforce demographics, according to a Miller, Canfield, Paddock and Stone post.

“The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act” highlights a number of important considerations for employers with regard to older workers.

“The report notes that older workers, specifically those in the 65+ category, are expected to remain in the workforce for longer, at greater numbers, and are the segment of the workforce expected to grow the fastest through 2024,” the post reports. “As a result of the increased presence of older workers in the workforce, the EEOC report warns against employment discrimination based on age, representing that ‘[u]nfounded assumptions about age and ability continue to drive age discrimination in the workplace.'”

Read the article.

One area of an employee agreement that can be over-looked, or perhaps misunderstood, is intellectual property, according to a post by John E. Munro on the website of Harness, Dickey & Pierce. Intellectual property, however, can be one of the most valuable assets of a company and should not be glossed over.

In the post, Munro discusses three provisions of an employee agreement that may be missing or could use a tune-up.

These are: the present invention assignment clause, the invention assignment carve-out, and a whistleblower provision.

Read the article.

Image by NY Photographic

The 5th U.S. Circuit Court of Appeals has reversed a Texas federal court’s order compelling arbitration in a sexual harassment and discrimination case because one party failed to sign an agreement to arbitrate, reports Karl Bayer in the Disputing blog.

Writing for the blog, Beth Graham describes the case in which the plaintiff, Huckaba, signed an arbitration agreement that waived her right to sue Ref-Chem L.P. prior to beginning employment with the company.

“The agreement included a signature box for Ref-Chem and also required that the company reciprocate by giving up its right to sue Huckaba. After the woman signed the contract, however, Ref-Chem failed to have an officer of the company countersign the document.”

When Huckaba later filed a sexual harassment, discrimination, and retaliation lawsuit against Ref-Chem, the company responded by filing a motion to compel arbitration. The district court granted Ref-Chem’s motion.

The 5th Circuit concluded “there is not a valid agreement to arbitrate in this case,” reversed the district court’s order compelling the dispute to arbitration, and remanded the lawsuit back to the district court, Graham writes.

Read the article.

Employers who use non-compete agreements take note: Minnesota courts want to see more than just words in a contract before they will grant injunctive relief against a former employee, warns a post on the website of Dorsey & Whitney LLP.

The article discusses St. Jude Medical, Inc. v. Carter, which arose after Heath Carter left his employer to work for a competitor. The employer filed suit against Carter and the competitor, alleging violations of Carter’s non-compete agreement. The employer sought an order enforcing the terms of the non-compete agreement and prohibiting Carter from working for a competitor in his then-current position. Although the jury found that Carter had breached his non-compete agreement, the court refused to enter an injunction, finding that the employer failed to establish that it had been harmed.

The Minnesota Court noted that “[a] private agreement is just that: private,” and concluded that such contractual language does not, by itself, entitle an employer to an injunction after proving the breach of a non-compete.

Read the article.

Energy giant Halliburton failed to act as two Muslim workers in North Texas were regularly harassed about their religion by supervisors and co-workers, the federal government alleges in a lawsuit.

Bloomberg Law reports the Equal Employment Opportunity Commission alleges Hassan Snoubar and Mir Ali were harassed and otherwise discriminated against because of their national origin. Snoubar is from Syria, and Ali is from India. Both worked for Halliburton Energy Services Inc. as operator assistants, the EEOC says.

Reporter Patrick Dorrian  writes: “The lawsuit continues the agency’s crackdown on employer practices or other workplace behaviors that target workers who are Muslim or Sikh, or of Arab, Middle Eastern, or South Asian descent. Eliminating such discrimination is one of the federal job rights watchdog’s top enforcement priorities.”

Read the article.

The Port of Seattle will pay half-a-million dollars to its longtime chief lawyer to leave the agency after investigating a workplace complaint lodged against him, according to The Seattle Times.

Craig Watson had been with the Port for 28 years, serving as general counsel for the past 13 years.

The Port commission voted unanimously to fire him and give him $500,000 as part of a settlement agreement to avoid a potential legal battle over his employment status, reports Mike Rosenberg.

The Port’s executive director wrote in a memo to commissioners that an investigation had been launched after “a recent internal workplace complaint about Craig Watson.” The findings showed “the incident was insufficient to support” the firing, but the executive director and the commissioners “have lost trust and confidence” in Watson’s ability carry out his duties and responsibilities, the director wrote.

Read the Seattle Times article.

Bloomberg Law reports on a survey of mostly female lawyers that sexual harassment, including unwelcome texts, physical contact and bullying, exists at big and small law firms.

The Women’s Bar Association of Massachusetts and the Rikleen Institute for Strategic Leadership conducted the study.

“Nearly 38 percent of respondents said they’d been the recipient of an unwanted sexual email, text or instant message at work. Approximately 21 percent said they’d experienced or witnessed unwelcome physical contact at work,” reported Stephanie Russell-Kraft. “More than two-thirds of those who said they had experienced or witnessed unwelcome physical contact said they didn’t report it.”

Read the Bloomberg article.

A recent decision from the Connecticut Superior Court illustrates the limits to enforcing non-compete agreements, writes Michael LaVelle for Pullman & Comley’s Working Together blog.

LaVelle explains the case’s background: “Typical of non-compete enforcement situations, the plaintiff company learned that an executive employee who had just resigned had been hired by a key competitor. The former employee had signed a ‘Confidential Information, Non-Compete and Inventions Assignment and Assumption Agreement’ at the start of her employment. The company sought to enforce the agreement by obtaining an injunction to prevent the former employee from working for the competitor.”

The court found that by preventing the individual from performing any work or services, whether as an employee, consultant or independent contractor, for any competitor, the agreement went beyond the limits of reasonableness.

Read the article.

Bloomberg Law is reporting that a former partner in Jones Day’s Silicon Valley office alleged in a suit June 19 that she was kicked out of the firm after raising concerns about its treatment of female lawyers.

The former partner, Wendy Moore, alleged that the firm’s leaders retaliated against her after she voiced misgivings about the firm’s alleged sexist culture, lack of pay transparency, and marginalization of female attorneys, according to reporter Stephanie Russell-Kraft.

“The firm’s male leaders often make sexist comments and rate the attractiveness of female attorneys, paralegals, staff, and officers of the firm’s clients,” Moore’s complaint complaint says. “Business development events, too, often center on degrading stereotypes of femininity and cater to a preference for sports and alcohol.”

Read the Bloomberg Law article.

Drew York, writing in Gray Reed & McGraw’s Tilting the Scales blog, offers some advice on how to “failsafe” electronic agreements with employees.

He describes a scenario in which a company requires its employees to electronically acknowledge receiving, reviewing and agreeing to abide by the company’s employee handbook. One of the workers later is injured on the job, and the company wants to invoke the handbook ‘s arbitration agreement.

“In several recent cases, employees have disputed that they electronically acknowledged an agreement with their employer,” writes York. “This raises an intriguing question: how do employers prove that an employee ‘signed’ an agreement when there is no written signature?”

Read the article.

A lawsuit accusing the U.S. Department of Veterans Affairs of failing to pay overtime to nurse practitioners and physician assistants since December of 2006 has been certified as a class action, according to a web post by Androvett Legal Media & Marketing. The certification is listed as an opt-in class, opening the door for more plaintiffs.

Class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin brought the lawsuit on behalf of nurse practitioners and physician assistants from VA facilities across the country. Attorneys estimate as many as 10,000 VA employees nationwide ultimately could be represented in the class action.

According to the lawsuit, nurse practitioners and physician assistants were required to process electronic and computer patient records after work hours using VA facility computers, laptops and sometimes their own personal home computers without compensation. The work is vital to the treatment of patients and is considered mandatory by VA supervisors.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Mooney Green, P.C. in Washington, D.C.

“These are medical professionals who are taking care of our veterans,” said Hamilton. “If we aren’t paying them properly, what sort of statement does that make about the importance of caring for those who watched over us and our rights?”

“Ultimately, it’s about patient care,” said Cook. “We need to do our utmost for those who have put on the uniform and defended our rights. And, we can start by properly paying the medical professionals who care for them when they need it.”

A federal judge has certified a class action lawsuit involving nurse practitioners and physician assistants accusing the U.S. Department of Veterans Affairs of failing to pay overtime since 2006, according to a post on the site of Androvett Legal Media and Marketing.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims granted certification in an action brought by class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin on behalf of nurse practitioners and physicians assistants at 85 different facilities across the country.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Washington DC’s Mooney Green, P.C.

“These health care professionals dedicate their time for the well-being of our veterans, and by law, are entitled to overtime when they are required to work beyond their work schedules,” said Hamilton. “We believe this lawsuit to be critical for veteran patient safety and health. To expect these employees to work extended hours without overtime pay is wrong. With the class certification, we can now proceed onto the next step in this lawsuit.”

The lawsuit seeks compensation for employees who worked overtime processing electronic and computer patient records using VA facility computers, VA laptops and sometimes personal computers, work that is critical to the medical treatment of patients. Nurse practitioners and physician assistants say the work is considered mandatory. Those who failed to complete the assignments were subject to disciplinary measures for poor time management.

“I’m grateful that the judge agreed with us and certified the lawsuit as a class action,” said Cook. “It is wrong for any employer to expect people to work for free.”

Hamilton and Cook estimate that as many 10,000 VA employees could be represented in the class action lawsuit, according to the Androvett post.

The case is Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred, Michele Gavin v. The United States of America, No. 1:12-cv-00920 in the U.S. Court of Federal Claims.

A decision by the Federal District Court for the Northern District of Illinois in Medix Staffing Solutions, Inc. v. Dumrauf serves as a reminder to employers why restrictive covenants should be limited in scope and duration to what is necessary to protect the employer’s business, writes David J. Hochman in an alert for Roetzel & Andress.

“The District Court, applying Illinois law, granted the defendant’s motion to dismiss Medix’ suit with prejudice and without providing the plaintiff an opportunity to present evidence or to pursue discovery,” he explains. “The Court held that the covenant was overbroad on its face and, therefore, unenforceable because it prohibited the defendant from taking any position with another company engaged in the same business as Medix— without regard to whether his new position was similar to his position with Medix or whether his new employer competed with Medix.”

Hochman writes that the opinion demonstrates why it is so important to limit the activities prohibited by a restrictive covenant, as well as the geographic scope and duration, to what is reasonably needed to protect the employer.

Read the article.

Employment and labor law firm Littler has released the results of its seventh annual survey, completed by 1,111 in-house counsel, human resources professionals and C-suite executives. The Littler Annual Employer Survey, 2018 analyzes the impact that sweeping regulatory changes and other factors, including the #MeToo movement, are having on employers.

The firm summarized its findings:

Following a year that brought several changes to workplace policy, the survey shows employers feeling some regulatory relief with the change in administration, while cautiously anticipating less of an impact from key regulatory issues over the next year. The portion of respondents expecting a significant impact from the Affordable Care Act dropped from 33 percent in the 2017 survey to 15 percent in 2018, with similar drops in significant concern around enforcement by the U.S. Department of Labor (25 percent to 16 percent) and the National Labor Relations Board (13 percent to 8 percent).

At the same time, employers feel buffeted by the burdens created by abrupt and dramatic regulatory changes, slow-moving confirmations to key government agency positions and the growing patchwork of state and local labor and employment requirements. The majority of respondents (64 percent) said that reversals of workplace policies and regulations between presidential administrations put a strain on their businesses and 75 percent said they faced challenges as states and localities work to fill perceived policy vacuums at the federal level.

“Companies want certainty more than anything,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “The vast majority of employers want to comply with the law and the continuous reversals of federal workplace policy, as well as the increasingly fragmented and sometimes contradictory rules at the state and local level, is an enormous distraction for them. Uncertainty means inability to plan, budget and anticipate, and it requires constantly retraining employees and reformulating employment policies.”

Of the changes that occurred during the first year of the Trump administration, respondents identified the rollback of wage-and-hour policies (62 percent) and the new tax bill (62 percent) as the areas that have most significantly impacted their businesses.

Immigration Reform Focuses on Visas and Enforcement

Amid tightening regulation and enforcement of both legal and illegal immigration, employers expect a range of immigration-related changes to significantly impact their workplaces over the next year.

Tighter restrictions on visa adjudications, such as those for employees with specialized skills and temporary workers, was the top concern selected by 48 percent of respondents. More than a third (36 percent) expressed concern with increased workplace immigration enforcement by U.S. Immigration and Customs Enforcement and associated agencies.

“It’s not surprising that the visa process and immigration enforcement emerged as employers’ top concerns,” said Jorge Lopez, chair of Littler’s Global Mobility and Immigration Practice Group. “The increased scrutiny being applied to employment visas and rule changes impacting visa programs, which often come mid-stream and without prior warning, make it difficult for employers to plan ahead and manage their workforces. In addition, the increase in worksite enforcement and raids have naturally heightened employers’ focus on worksite compliance issues and properly addressing those concerns.”

Continued Workplace Discrimination Enforcement Expected Amid Focus on Harassment

The survey showed virtually no change in the impact employers anticipate from enforcement by the Equal Employment Opportunity Commission (EEOC) over the next year, with 76 percent anticipating an impact in the 2017 survey and 77 percent in 2018. This aligns with a key finding from Littler’s Annual Report on EEOC Developments – that the Commission actually filed more lawsuits in fiscal year 2017 than it has since 2011.

Employers surveyed expect the EEOC’s top enforcement priorities in the near-term to be harassment claims (64 percent), hiring practices (53 percent) and retaliation against employees who file discrimination or harassment claims (48 percent).

“Employers are right to expect the EEOC to continue to vigorously investigate workplace discrimination claims, particularly harassment claims and other EEOC priorities, regardless of upcoming changes at the Commission with an expected new chair, commissioner and general counsel,” said Barry Hartstein, co-chair of Littler’s EEO & Diversity Practice Group. “With the #MeToo movement and the EEOC’s focus on stemming the tide of harassment in the workplace, taking steps to minimize the risk of harassment claims should be a top priority for employers. We also should expect an active plaintiffs’ bar threatening and initiating private lawsuits during the coming year based on these developments.”

Sexual Harassment and Pay Equity Rank as Top Concerns for Employers

Among the many headline-grabbing issues swirling through the workplace, the majority of survey respondents (66 percent) ranked sexual harassment as the most or second-most concerning issue on their radar.

In the wake of the cultural shift sparked by the #MeToo movement, 55 percent of respondents have added training for supervisors and employees, and 38 percent have updated human resource policies or handbooks. However, only 13 percent have implemented new tools or investigation procedures to manage employee complaints and 24 percent have not made any changes over the past year.

“No company can afford to ignore this issue, and while many already have a good foundation, the past several months have shown the importance of reevaluating and reinforcing policies and procedures,” said Helene Wasserman, co-chair of Littler’s Litigation and Trials Practice Group. “While the law governing harassment in the workplace hasn’t changed much, employee expectations have. In addition to providing training and updating policies, it’s critical that companies have effective complaint procedures in place and that employees feel confident that reports of potential misconduct will be taken seriously and acted upon.”

Gender pay equity followed sexual harassment as the second-most concerning issue in the headlines for employers, with 41 percent placing it among their top two concerns. Companies reported taking action as a result, including conducting audits of current pay practices and salary data (61 percent) and revising hiring practices, such as updating job applications and ceasing the practice of asking candidates about prior salaries (34 percent). However, only 14 percent have modified compensation policies or taken steps to facilitate advancement of female and minority employees.

“Conducting audits is a critical first step to identifying pay disparities among employees, but with continued attention to this issue and an evolving legal landscape, an audit is just the beginning of addressing pay equity in the workplace,” said Denise Visconti, a shareholder heading the Littler Pay Equity Assessment. “As time goes on, pay disparities only become more intractable, so proactively addressing this issue helps companies mitigate risk and reinforce their commitments to treating employees equally and fairly.”

Employers Start to Embrace Data Analytics and Artificial Intelligence

Recruiting and hiring is the most common use of advanced data analytics and artificial intelligence, adopted by 49 percent of survey respondents. Employers also said they were using big data to guide HR strategy and employee management decisions (31 percent), analyze workplace policies (24 percent) and automate tasks previously performed by humans (22 percent). The smallest group of participants (5 percent) are using advanced analytics to guide litigation strategy.

“It is encouraging to see employers starting to embrace the many benefits provided by big data in helping manage their most important asset, their people,” said Aaron Crews, Littler’s Chief Data Analytics Officer. “However, it appears that many employers are not aware of the significant potential to use advanced data techniques to guide litigation strategy. The ability to leverage data early in a case, to tease out insights before you ever take a deposition or begin evaluating the credibility of witnesses, is revolutionary.”

The survey results are being released at Littler’s 35th annual Executive Employer Conference taking place May 2-4, 2018, in Phoenix, Arizona.

Chipotle Mexican Grill Inc. on Monday reached a confidential settlement with a former employee, rather than face punitive damages for wrongfully firing her in January 2015 from the the restaurant she once managed, reports The Fresno Bee.

A Fresno jury last Thursday awarded Jeanette Ortiz $7.9 million in her wrongful termination civil case for loss of past and future wages and emotional distress against the fast-foot giant, a company that is worth about $1.3 billion, according to reporter Pablo Lopez.

Instead of letting the jury decide punitive damages, which could have been as much as nine times the original award, Chipotle’s lawyers settled with Ortiz and her lawyers for an undisclosed sum.

“In its verdict, the jury of four men and eight women ruled that Oritz was not a thief, but was a victim of a scheme to fire and defame her for filing a worker’s compensation claim for a job-related injury to her wrist caused by carpal tunnel syndrome,” writes Lopez.

Read the Fresno Bee article.

Fisher & Phillips LLP reports that a delivery driver for gig economy company DoorDash has been ordered by the 5th Circuit Court of Appeals to take his misclassification case to a private arbitrator instead of court pursuant to a valid arbitration agreement he entered into.

“The April 25 decision is a solid win for gig employers and could provide a template for how other similar businesses should structure their own arbitration agreements,” writes Richard Meneghello.

Delivery drivers for DoorDash are classified as independent contractors, but one driver filed suit, claiming wage and hour violations, and sought conditional class certification.

“If there is an agreement to arbitrate with a delegation clause…, we will consider that clause to be valid and compel arbitration. Challenges to the arbitration agreement as a whole are to be heard by the arbitrator,” the 5th Circuit said.

Read the article.

A federal district judge in Chicago has dismissed a non-compete case—at the pleading stage—finding that the non-competition covenant at issue was overbroad, as a matter of law, according to Winston & Strawn.

The firm’s post says that the judge ruled because the covenant restricted the employee from taking any position with another company that engaged in the same business as the employer, without regard to whether that position was similar to a position the employee held with the employer, or was otherwise competitive with the employer.

The case is Medix Staffing Solutions, Inc. v. Dumrauf.

Read the article.