Non-disclosure agreements are part of an arsenal of legal tools that employers have at their disposal to protect their reputation and their bottom line — but those tools often come at the expense of wronged employees, writes Michelle Chen in an article for The Nation.

She also discusses the use of forced arbitration that requires employees to channel their workplace disputes through an extralegal negotiation process, rather than through the courts.

She adds:

According to the National Women’s Law Center (NWLC), both forced arbitration and NDAs have in many workplaces become a standard tactic to preempt workers from taking legal action or disclosing sexual-harassment and -assault charges. These agreements force workers to sign away their rights in exchange for a job, by making them agree to settle future disputes outside the courts through an opaque negotiation process controlled by management and lawyers—effectively sentencing women to silence before they ever step into a courtroom.

Read the article.

A non-compete provision is different than most other contractual terms, because simply having mutual consent and consideration will not automatically render it enforceable for reasons of public policy, points out an article in The In-House Advisor by Shep Davidson of Burns & Levinson.

“While some businesses try to make an end-run around this law by requiring an employee to forfeit some benefit or pay liquidated damages if he/she competes against his/her company, any such requirement will be viewed through the same public policy lens used to scrutinize a formal non-compete provision,” he writes.

Davidson warns that, while a liquidated damages provision is not a silver bullet, if properly drafted, such a clause can be a significant deterrent to an employee who might otherwise decide to test the bounds of a non-compete.

Read the article.

A recent report by the Dallas Women Lawyers Association, titled Bridging the Gap: Practical Resources and Suggestions for Promoting and Retaining Female Attorneys in the Legal Profession, is a concise rundown of the challenges women lawyers face and how to address them, according to Amy Boardman Hunt of Muse Communications.

She says the report illustrates two important points:

1) the legal profession has a long way to go to reach anything close to gender parity, and;

2) it is incumbent on women lawyers to help close the gap, both by advocating for systemic changes in the profession and by engaging in the kind of strategic self-promotion that can position them to make those changes happen.

Read the article.

The concept of off-duty misconduct and any on-duty punishment that may occur can sometimes be a slippery slope, warns Natalie Lynch of Lynch Service Company in a web posting.

While there are plenty of instances of people being fired or reprimanded for their off-duty behaviors, there are also instances of terminated employees fighting for reinstatement under the guise that their off-duty conduct did not impact their on-duty work or the reputation of the company, she writes.

“Problems may arise when a company fails to outline what type of off-duty conduct is considered verboten and how employees are to conduct themselves during their off-duty hours. Problems can also arise when an employee punishes or terminates an employee for thoughts or actions that the company deems unsatisfactory, but are not illegal or truly damaging to the company, Lynch writes.

Read the article.

Significant tools in the arsenal of strategies are contracts signed by the employee, but waiting until the employee departs is too late to start thinking about them, points out Spiwe L. Jefferson in an article on the website of the Association of Corporate Counsel.

In her article, she discusses contract considerations at the beginning of the employment relationship.

She covers confidentiality agreements and nonsolicitation agreements,. Under the “noncompete agreements” heading, she discusses limiting temporal scope, protecting legitimate interests, exempted professions, timing requirements, consideration, and geographic limits.

Read the article.

A U.S. district judge says she saw prejudice in a jury’s verdict Tuesday that would have awarded $1.13 million in damages to a former JPMorgan Chase & Co. employee over her dismissal, according to Bloomberg.

The Manhattan jury deliberated for five hours to find the former wealth manager has been fired illegally. The jury awarded her $563,000 in back pay and $563,000 for emotional damage.

Reporter Bob Van Voris quoted Judge Denise Cote:

“The award of emotional damages says to me that the jury was prejudiced against the bank. That undermines the entire verdict.”

Read the Bloomberg article.

A new post on Bryan Cave’s At Work blog explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

“To avoid breach of contract claims premised on employee handbook policies, employers should include an express contract disclaimer in their employee handbooks,” write Bill Wortel and Christy Phanthavong.

The article explains the “at will” clause, the use of a reservation of right by the employer to modify policies, and the need for the disclaimer to be conspicuous.

Read the article.

In workplace harassment cases — both in Hollywood and in the rest of the American workforce — many companies try to use nondisclosure agreements to protect the employer from legal consequences for wrongdoing, according to Bloomberg Law. And the NDA can also serve to keep criminal behavior out of the public eye and the courts.

That’s how someone like Hollywood producer Harvey Weinstein can be a repeat offender without consequence, explains Bloomberg reporter Rebecca Greenfield.

She quotes Peter Romer-Friedman, an employment lawyer at Outten and Golden: “It’s buying silence. It’s buying confidentiality. It’s trying to sanitize. These agreements are often protecting criminal activity.”

“NDAs are geared to ensure that the fraction of people who do come forward can’t warn others or bring claims to light, all of which contributes to the culture of silence around workplace harassment.
Legal scholars are now asking if settlements backed by nondisclosure pacts are protecting criminal activity,” Greenfield writes.

Read the Bloomberg article.

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In structuring overseas postings, multinationals inevitably struggle with the interplay between expatriate assignment strategy and the legal ramifications of a particular foreign posting, points out Donald C. Downling, a shareholder in Littler Mendelson P.C.

“The various types of cross-border personnel moves raise questions of how best to structure a given international assignment,” he writes. “To resolve these questions, we address four threshold issues: (A) who is and is not an expatriate?; (B) four expatriate structures; (C) selecting the best expatriate structure; and (D) written expatriate agreements.”

A link at the end of the article on Littler’s website connects to the full report.

Read the article.

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CBS fired a a senior legal counsel after she criticized some victims of the Las Vegas mass shooting as “Republican gun toters” who did not deserve sympathy, reports The Washington Post.

“Hayley Geftman-Gold, who was a vice president and senior legal counsel at CBS in New York, also wrote on Facebook that she had no hope that Republicans — whom she called ‘Repugs’ — would ever take action and ‘do the right thing’ if they didn’t do anything when children were murdered, an apparent reference to the December 2012 Sandy Hook shooting that left 28 people dead, including 20 children, killed inside their elementary school in Connecticut,” writes Mary Hui.

CBS confirmed firing Geftman-Gold and called her comments on social media “deeply unacceptable.”

Read the Washington Post article.

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President Donald Trump has a solution to stop football players from taking a knee in protest during NFL games.

“The NFL has all sorts of rules and regulations,” Trump said in a tweet this week. “The only way out for them is to set a rule that you can’t kneel during our National Anthem!”

But can NFL owners really do that? Yes, says noted Dallas employment lawyer Rogge Dunn.

“This is no different than employers prohibiting employees from smoking at the office or outside of the office,” said Dunn, a partner at Clouse Dunn LLP.

As reported on the website of Androvett Legal Media & Marketing, more than 100 pro football players defiantly knelt or locked arms before games on Sunday and Monday. Many did so following Trump’s harsh criticism at a campaign rally in Alabama late last week. He said in a speech:

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’”

While last weekend’s wave of protests were a show of solidarity against President Trump, former San Francisco 49ers quarterback Colin Kaepernick actually sparked the movement in 2016 by sitting on the bench during the national anthem to put a spotlight on the victimization of African-Americans by police.

Regardless of the cause, Dunn said more employers are regulating employees’ actions inside and outside of work.

“An employer can regulate employees’ actions at the office and outside, including limiting their political activities and firing them for speaking out or protesting,” he said.

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When the Supreme Court opens its 2017 term on the first Monday in October, its very first cases will serve as a stark reminder of why elections matter, predicts USA Today.

Reporter Richard Wolf writes that the upcoming term stands “a real chance of being a one-two punch against workers’ rights,” says Claire Prestel, associate general counsel for the Service Employees International Union.

Wolf points out how things have changed:

When the court was asked to hear three cases on labor arbitration agreements last September, Barack Obama was president, Hillary Clinton was heavily favored to succeed him, and federal appeals court Judge Merrick Garland was in line to replace the late Antonin Scalia. Garland had a strong record of defending workers’ rights.

Read the USA Today article.

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The executives of some Silicon Valley companies have been forced out of their corporate positions because of sexual improprieties between themselves and employees, but one company has weathered a similar ordeal with little apparent repercussion.

The New York Times discusses the case of Upload, an entertainment and news hub for the VR industry. When the former digital media manager sued the company after she was fired, allegedly because she complained about the hostile atmosphere, the company at first denied the allegations. Then, as the Times‘ story about the suit neared publication, Upload’s CEO and president issued a statement saying, “We let you down and we are sorry.”

The Silicon Valley story took a turn. As reporter David Streitfeld writes:

In contrast to the venture capitalists who were knocked off their perches this summer by harassment complaints, Upload was scarcely dented by the publicity surrounding [the] suit. [The CEO and president] were not forced to resign. Investors did not pull their money. The company’s events continued, if in terms that were a bit more muted.

Read the NYT article.

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After weeks of growing scrutiny of alleged sex-related improprieties involving Social Finance CEO Mike Cagney, the start-up said he would leave as chief executive by the end of the year and that he would step down immediately as chairman, reports The New York Times.

“Although many of the issues at other firms stemmed from the actions of midlevel executives or investors, Mr. Cagney personally faces questions about his role,” write reporters Nathaniel Popper and Katie Benner. “His conduct was described by more than 30 current and former employees, most of whom asked to remain anonymous for fear of retribution.”

Cagney’s position with the company had become delicate after a sexual harassment suit was filed against him by a former employee.

Cagney denied any improprieties.

Read the NYT article.

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A post on the website of Nilan Johnson Lewis addresses a question about hiring: What specific steps should you take to set up your best defense to a claim that your company interfered with a new hire’s non-compete agreement with her current employer?

The article defines tortious interference and then discusses five considerations: selecting counsel, proving reasonable reliance, selecting the witnesses, proving the advice happened, and proving the substance of advice.

“By taking these actions with future litigation squarely in mind, your company can create the best evidence to support a justification defense when hiring a new employee with a questionable non-compete,” the article concludes.

Read the article.

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Alison Frankel reports for Reuters that briefing wrapped up this week on Proskauer’s motion to end a sex bias suit by an anonymous partner in its Washington, D.C., office.

She writes that Proskauer’s motion for summary judgment, the woman simply can’t sue the firm under federal and state anti-discrimination laws because those laws protect employees and she’s an equity partner — not an employee.

“The woman, who is represented by Sanford Heisler Sharp, tells a different story in her brief opposing summary judgment,” Frankel writes. “According to her, Proskauer’s rank-and-file partners have effectively no control over the firm. All important decisions about hiring, firing, governance and compensation are delegated to Proskauer’s seven-member executive committee, which she depicts as the power center of the firm.”

Read the Reuters article.

Jackson Lewis has posted an on-demand webinar exploring recent developments and important decisions in whistleblower litigation under the Sarbanes-Oxley Act and the Dodd-Frank Act.

Presenters are Richard J. Cino and Joseph C. Toris.

Topics for the free webinar include:

• The expansion of the definition of a whistleblower;
• The weakening of the standard of proof in employee whistleblower cases;
• The necessity for an effective policy and a thorough and prompt investigation.

Watch the on-demand webinar.

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Potentially significant policy changes are on the horizon regarding federal rules that determine how and whether workers are entitled to overtime pay, according to a post on the website of Androvett Legal Media & Marketing. Businesses hoping to avoid overtime obligations for hourly workers must jump through three hoops in most cases. One of those hoops is to pay at least the minimum salary set by the U.S. Department of Labor.

Last year, the Labor Department under the Obama administration more than doubled the minimum salary threshold that is exempt from overtime, raising it from $23,600 to $47,476. But the salary increase proposal was stiff-armed by a Texas federal judge’s injunction before the change could take effect. While not endorsing the Obama-era regulations, newly appointed Labor Secretary Alexander Acosta mused in recent congressional testimony that the current salary threshold is too low and should be raised to “somewhere around $33,000.”

“The DOL is now seeking comment on how the overtime exemptions should be determined, as well as issues including whether salary levels should be allowed flexibility based on various factors, such as size of employer or region of employment,” says employment attorney Audrey Mross of Dallas-based Munck Wilson Mandala.

“There’s a lot on the line for employers who could be affected by these changes,” she said. “More than anything, employers are seeking consistency in order to plan for the future. This information-gathering phase provides parties a chance to be heard. If the salary threshold for exemption does increase, employers will be making hard decisions about whether to raise affected worker pay to maintain overtime exemptions or closely monitor worker hours, or otherwise be prepared to start paying overtime.”

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HR Dive reports on a federal case in which an employee’s Family and Medical Leave Act suit will go to trial over how she was fired after confusion about how much leave she had available.

Reporter Kate Tornone explains: “The employer’s handbook had two separate sections: one discussed employees’ entitlements to 12 weeks of unpaid FMLA leave, while the other offered workers eight weeks of paid maternity leave, with the option to take four more weeks unpaid.”

The company fired the employee when she didn’t return to work after 12 weeks absence.

Read the HR Dive article.

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The Associated Press reports that Google’s CEO canceled an internal town hall meant to address gender discrimination after employee questions for management began to leak online from the company’s internal messaging service.

“Sundar Pichai said in an email to staff that several Google employees became fearful for their safety and grew concerned about being outed for speaking up at the town hall,” writes technology writer Ryan Nakashima.

Employees had used an internal system to submit questions for executives to address, but some of those questions leaked and were published online.

Read the LA Times article.

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