Archives: Employment Litigation

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Solving The Gender Pay Gap Is Neither Simple Nor Quick

Pay equity is popular. Shareholder resolutions, often promoted by socially conscious investors, have challenged businesses to report their pay gap publicly.   Plus, 69% of Fortune 1000 companies have voluntarily launched pay equity studies in the last two years.  Push for pay transparency grows stronger. That is laudable but the real problem is how to eradicate … Continue Reading

Social Media Ownership Considerations in the Employment Context

At home, social media dilemmas include being 62 weeks deep in a social media account, and accidentally dropping a dreaded double-tap, “liking” a photo and releasing a notification that reveals your not-so-secret surveillance. It gets worse. What if you were perusing the account of an ex’s new flame? At work, social media can present even … Continue Reading

Challenges for Employers in a Post #MeToo World

Today, “[t]here is a temptation to simplify matters by viewing all harassers and their offenses as equally awful . . . .”  (NY Times: How Should We Respond to Sexual Harassment?)  This reflex treats all alleged harassment as equally problematic and warranting equal repercussions.  This is evident in the press of the prominent parading regularly through the … Continue Reading

Hashtag — Zero Tolerance Policy?

Jules: Hash is legal there in Amsterdam, right? Vincent: Yeah, it’s legal, but it ain’t a hundred percent legal. I mean, you can’t just walk into a restaurant, roll a joint and start puffing away. You’re only supposed to smoke in your home or certain designated places. Jules: And those are hashbars? Vincent: Yeah. It breaks down like this: … Continue Reading

Shakespeare Sheds Light on Liability for Abetting Discrimination

Over 500 years after his death, Shakespeare’s works continue to be a touchstone for legal analysis and critique. A fool’s errand it would be to attempt to catalog the legal issues in each of his 37 plays.  Indeed, so popular is the Bard’s legal acumen that he is the most-quoted literary author in Supreme Court decisions. Once … Continue Reading

Joint Liability For Franchisors?

College legends shape minds forever. Having attended the University of California, Berkeley, “The Play”—an unscripted play to win over arch-rival Stanford with only four seconds on the clock – was the subject of a mandatory course.  It is also a cautionary tale on what can happen when attention lapses. Reading up on commentary regarding joint … Continue Reading

Unconventional Tactics

Malcolm Gladwell in his essay “How David Beats Goliath” extolled the use of the full-court press in basketball: “In the world of basketball, there is one story after another … about legendary games where David used the full-court press to beat Goliath.” Is there an equivalent in litigation with ex-employees? Under the Computer Fraud and … Continue Reading

Independent Contractors: The Newest Ultrahazardous Sport

Base jumping, street luging, and transporting loose glass bottles of nitroglycerine in the back of a Jeep off-road have been equally adventurous activities in the modern world. Now, courtesy of New York City, utilizing independent contractors should perhaps be added to that list. New York City has passed first-of-its-kind legislation to protect independent contractors against … Continue Reading

And the Oscar Goes to. . .the Stored Communications Act?

Film reels abound with examples of employees-turned-detectives using documents taken from their employer’s files to bring wrongdoing to light. You may have your own favorites but here are mine (with titles hidden in footnotes so as not to spoil your fun): An up-and-coming agent uses a flash drive hidden in her coffee mug to smuggle … Continue Reading

“Breaking Up Is Hard To Do”: But a Good Separation Agreement Can Ease the Pain

Neil Sedaka’s 1962 hit song still rings true not only for ex-lovers but also for ex-employees.  But, the Employment Relationship Doctor has advice for half of that equation in time for Valentine’s Day.  Well thought out separation agreements allow employers to survive failed relationships. Let me repeat the operative phrase: “well thought out.”  Despite prior … Continue Reading

Employee Turnover: Can Employers Recoup Investments In Their Employees?

New employees need to be trained. Some need to be moved. And, in many business sectors, employers continue to invest in their employees via continued education and training courses. All of these are investments. Their pay off, however, depends on whether the employee stays with the company. Millennials job-hop like it’s their… well, job. Over … Continue Reading

Forum Selection Clauses For U.S. Citizens Working In Another Country?

Choice of law and choice of forum clauses are routine. But, are those clauses enforceable in employment agreements covering U.S. citizens on foreign assignments?  Let’s compare cases involving (1) U.S. employees on long-term assignments in the UK; (2) who each had choice of law and choice of forum clauses; and (3) who each filed suit … Continue Reading

Walk-Backs: Learning to manage employees by watching America’s political leaders?

Managers often confront workplaces rife with a history of unenforced policies and mistakenly believe that the solution is merely to enforce those long-ignored rules.  Legally, the results of such efforts can be disastrous. In Curry v. Menard, Inc., 270 F.3d 473 (7th Cir. 2001), a new manager tried to more strictly enforce the company’s cash … Continue Reading

Wellness Program Wars

This should be easy.  Like motherhood and apple pie, everybody should be in favor of encouraging more wellness.  But, in 21st century America, nothing is ever easy; mothers baking apple pies beware. There are two fronts in the wellness program wars. The first has been playing in court for several years.  The second arises from … Continue Reading

Space, Time, and Taxes: How The Theory Of Special Relativity Applies To Settling An Employment Claim

Special thanks to Taylor Carico for contributing to this post. Tax implications of employment settlements bedevil everyone. Even Albert Einstein famously stated that “the hardest thing in the world to understand is the income tax.” There are lots of reasons for confusion but the complication between what is taxable income and what is taxable wages … Continue Reading

How to use the new trade secrets act: tips for employers

US businesses lose $300 billion annually in stolen trade secrets; employees can steal thousands of documents with the push of a button; and the FBI acknowledges it cannot stop this hemorrhage on its own. In response, Congress just enacted the Defend Trade Secrets Act (DTSA) to give private litigants powerful new tools to combat this … Continue Reading

FAQs on the ADA’s Application to Addicts

23.5 million Americans aged 12 or older—approximately 10% of the U.S. population—consider themselves in recovery from drug or alcohol abuse problems. In light of these staggering numbers, as well as the ADA’s explicit protections for addicts, litigation related to employee addiction is increasingly common. The following FAQs address legal responsibilities with respect to addicted employees. … Continue Reading

The Elephant in the Corner … Do You Have to Pay Employees for Checking Work Email?

Connectivity is addictive. Managers text and email staff 24/7; workers check their phones incessantly 24/7. How often? Okay, here are the actual numbers from a recent Gallup poll: 11% check it every few minutes; 41% a few times an hour; and 20% of Americans claim once an hour. If you haven’t checked in last 60 … Continue Reading
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