FisherBroyles, LLP has a warning for employers dealing with an employee who is doing — or is suspected of doing — illegal drugs: Situations of this kind are fraught with potential for large legal fees, company embarrassment, and major diversion of management time if you become involved in formal proceedings — even if you eventually win.

Drugs permeate our society. It’s on the news, in social media, and all over movies and television. It may also be in your workplace when you discover that your awesome SVP Frank Fantastic’s belief-suspending prior year’s sales record might be due to — or despite — a little cocaine habit combined with his daughter’s ADHD meds.

Some questions you want to consider — do you know this hotshot is doing illegal drugs or abusing alcohol or prescription drugs, or do you just suspect? Is Frank’s employment terminable at will or only for cause if he is a party to an employment contract? Is a substance addiction a “disability” under the Americans with Disabilities Act?

While the answers to such questions depend on the particular facts in each situation, one thing we can tell you is tread lightly, navigate carefully. You want to minimize involvement in such proceedings if at all possible.

The firm offers advice on how to proceed: maintain a clear anti-drug policy, manage the situation with care, review employment agreement, remember that the ada protects recovering addicts, and be proactive in future employment agreements. The article expands on each of those points.

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From two different courts in two different states on two very different claims come the same concept: an agreement to arbitrate may be binding even without a signed contract, according to a report by Stan Martin on the Commonsense Construction Law website.

“One comes via an unsigned law firm partnership agreement, and the other via an agreement placed on the wrapping of a bundle of roofing shingles, held to be binding on the property owner who hired the contractor who engaged, in turn, the subcontractor purchasing the shingles,” he writes.

“These cases serve as a reminder that (1) a person or company can be bound by a contract without signing that contract, based on other actions, and (2) if that (unsigned) contract calls for arbitration, the person/company is bound to arbitrate disputes that arise under the contract.”

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A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations, writes Virginia Whitehill Guldi of Zuckerman Spaeder LLP. What happens, however, when the parties forget some of the niceties of formalizing a written contract?

For one answer, she offers the recent decision in the case of Shank v. Fiserv, Inc., in which the Eastern District of Pennsylvania addressed Fiserv’s motion to dismiss and compel arbitration at the outset of the case.

In that case, employee Shank had been dismissed after returning from a medical leave. The company cited a reorganization, but the plaintiff claimed proffered reason was pretextual and that she had been fired in violation of various federal laws, including the Americans with Disabilities Act, the Family Medical Leave Act, and Title VII.

“Fiserv sought to dismiss the case and force arbitration, citing a ‘Mutual Agreement to Arbitrate Claims’ that Ms. Shank had signed when she was hired and that would have contractually obligated her to arbitrate her claims. However, Fiserv’s argument had a flaw, said Ms. Shank, because it did not sign the agreement,” Guldi wrote.

The court agreed with the plaintiff.

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BanbooHR will present a complimentary webinar designed to help companies’ human relations departments become more strategic to solve more imminent business problems.

The webinar will be Tuesday, April 19, beginning at 2 p.m. Eastern time.

On its website, the company says the webinar will begin with an economic perspective around the pressures business is putting on HR to upskill themselves, and then will go into a discussion of the strategies and principles that can be used to escape the operational handcuffs holding executives back from fulfilling this higher-value promise.

Topics will include:

• Learn what Strategic HR actually means
• Learn how to escape the operational and become strategic
• Learn how to gain relevance, influence and authority in your organization
• Learn immediate steps you can take to reinvent your department
• Learn to think and speak the language of business

Speakers will be Angela Watson, Enterprise Account Executiv of eFileCabinet, and Rusty Lindquist, VP of Strategic HR Insights of BambooHR.

Register for the webinar.

A New Jersey court recently used the so-called contract “disclaimer” language in an employer’s handbook to preclude the employer from enforcing a mandatory arbitration program contained in that same handbook, reports Kevin C. Donovan in a Wilson Elser client alert.

He writes that employers who wish to enforce alternate dispute resolution procedures without falling into the same trap should consider the ruling. But, he wrote, the decision appears contrary to federal policy, enforced by a series of U.S. Supreme Court decisions that strongly favor enforcement of arbitration agreements.

In New Jersey, as in most states, employment is presumed to be “at will,” meaning that either the employer or the employee can freely terminate the employment relationship without a reason (cause) to do so. Under certain circumstances, however, express promises contained in an employer handbook can result in contractually binding terms and conditions of employment.

“While [the ruling] is a New Jersey decision, rulings in other states have also limited an employer’s ability to enforce an arbitration agreement in employee handbooks under some circumstances,” Donovan wrote.

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Practical Law will present a free 75-minute webinar on Wednesday, March 9, at 1 p.m. EST to discuss key employment laws, practices, and policies of particular concern for startups.

Startup founders focused on financing, developing, and marketing their business may not prioritize complying with the panoply of federal, state, and local employment laws, the company says in a release. However, as an early-stage startup grows and hires more staff, non-compliance with these laws can pose substantial legal risks. To avoid potentially devastating liability and reputational damage, startups must have a plan for identifying and managing employment and human resources-related issues.

Philip M. Berkowitz, a shareholder with Littler Mendelson P.C., and his colleague, Christine L. Hogan, will lead the discussion.

In this program, attendees will:
* Obtain an overview of key steps startups should take before hiring their first employees, and the ones they can’t afford not to take.
* Review best practices for documenting a startup’s relationship with its founders and employees.
* Learn how startups can avoid common employment law pitfalls, including employee misclassification, noncompliance with minimum wage and overtime regulations, and more.
* Explore critical workplace policies and compliance areas.

Presenters will be:
* Philip M. Berkowitz, Shareholder, Littler Mendelson P.C.
* Christine L. Hogan, Associate, Littler Mendelson P.C.
* Barbara Harris, Senior Legal Editor, Labor & Employment Service, Practical Law
* Joe Green, Senior Legal Editor, Capital Markets & Corporate Governance Service, Practical Law

Check the registration page for CLE availability.

Register for the webinar.

Many companies in the technology industry pay workers as “independent contractors” or “1099 workers,” write Mark J. Neuberger and Larry S. Perlman of Foley & Lardner in an article posted by The National Law Review. In theory, classifying individuals as independent contractors rather than employees can bestow significant economic benefits on a company. This option may be very attractive to a start-up who may be short on cash to pay salaries and fringe benefits.

“When independent contractors do the work, your company is not responsible for tax withholdings, is not responsible for workers’ compensation or unemployment insurance, and does not need to pay minimum wage or overtime,” they explain. “That’s the good news. However, when not done correctly, independent contractor classification is fraught with risk and lots of potential legal liability.”

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There are few reasons a court will treat a contract it as if it never existed at all, and those limited reasons center almost exclusively on a widely pervasive misdeed that is difficult to detect, such as resume fraud, writes Jennifer B. Rubin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

“Resume fraud is not, of course, limited to educational credentials,” she adds. “Title and salary inflation abound as well as falsified job experience.  Setting aside the moral discussion, the question is whether fraudulent credentials provide a basis for annulling an employment contract.”

She explains that the key to having a court grant an annulment and permitting the employer to avoid any contractual promises made to the employee based on the fabricated credentials is that the criteria at issue be material to the employer.

Read the article.