Archives: Employment Litigation

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Background Checks: Minor Mistakes = Major Consequences

Details matter. The Titanic sank because its center propeller didn’t work in reverse. A Japanese company lost between $225 and $350 million because a typing error caused it to offer thousands of shares for 1 yen apiece instead of single shares for thousands of yen apiece. For employment, the most dangerous illustration of this “minor … 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

Kvetching Toward Living With EEO-1 Compensation Data Demands

Nobody remembers I.F. “Izzy” Stone (1907-1989) but everybody should; he was a reporter who did deep-dive readings of the handouts, the press releases, and the public documents.  Izzy would love the EEOC as a target.  While the EEOC did not include its proposed EEO-1 form in its updated Final Comment Request, you can find it … 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

Dealing with the new FLSA salary tests in ruby slippers

This article first appeared as an Employment Alert on our firm’s website. News releases echoing the famous mantra from The Wizard of Oz – “lions, and tigers, and bears … Oh my!” – suggested that the Department of Labor (DOL) has issued an army of flying monkeys. Not so. The DOL merely finalized new dollar … 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

Don’t Cry Over Spilled Milk: Best Practices for Handling Nursing Employees

“First comes love, then comes marriage [or not – no judgment], then comes the baby in the baby carriage” and then – for nursing working mothers – comes expressing milk at the workplace. Nursing employees are currently afforded workplace protections under several major federal laws; plus, many state and local governments have expanded these federal … Continue Reading

Retaliation Claims Under The False Claims Act: A Pop Quiz

President Lincoln signed the False Claims Act (FCA) in response to scoundrels who sold the Union Army “gunpowder” kegs full of sawdust, uniforms sewn with used rags that disintegrated when wet, and boots made of cardboard that fell apart when worn. To incentivize citizens to protect the government, the FCA provided a bounty to individuals … Continue Reading

Is a Severance Policy More Like an ERISA Plan, a Writing Desk, or a Raven?

… The Hatter opened his eyes very wide on hearing this; but all he said was, “Why is a raven like a writing-desk?” …“Have you guessed the riddle yet?” the Hatter said, turning to Alice again.  “No, I give it up,” Alice replied. “What’s the answer?”  “I haven’t the slightest idea,” said the Hatter.  “Nor … Continue Reading

Is There Really An Obligation To Provide Miranda Warnings In Employee Interviews?

Investigations of employment-related claims routinely require employee interviews. Reports of sexual harassment, picket line misconduct, or whistleblowing all trigger such investigative interviews. Conventional wisdom suggests that employers and their counsel should ask the interviewees to maintain what is covered in confidence and even to document that confidentiality commitment in writing. But, developments on multiple fronts … Continue Reading

Defining ADA Disabilities in a DSM-V World

Charles Dickens and his characters lived in a pre-ADA world. Yet, those struggling with the definition of “disability” under the ADA share the same frustration as Mr. Bumble in Oliver Twist: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass — a idiot.’” Under … Continue Reading
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