Tag Archives: don’t get sued

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

“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

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

#SocialActivism in the Workplace

Hashtags are ubiquitous. The 10 most influential hashtags on Twitter are: 10. #GivingTuesday 9. #YesAllWomen 8. #PrayforJapan 7. #BringBackOurGirls 6. #IceBucketChallenge 5. #Sandy 4. #IndyRef 3. #BlackLivesMatter 2. #LoveWins 1. #Ferguson (Washington Post, “These 10 Twitter hashtags changed the way we talk about social issues,” March 21, 2016) Fan, athletes, entertainers, political candidates, and just … 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

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

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

Mandated Corporate Social Responsibility Reporting

Recent legislation in the United Kingdom — the Modern Slavery Act (MSA) — requires every company doing business there and with a global revenue of at least £36 million (roughly 54 million in US dollars) to publish a slavery and human trafficking statement on its website. While that statement may permissibly say that the company … 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 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

Every Dog Has His Day – Even at Work

Some start-ups are already doing it.  And, other companies are considering the cost-benefit analysis of allowing employees to bring their pets to work.  However, much like an unfamiliar dog, pet policies have to be handled with care.  Upsides (improved morale for and recruitment of pet lovers) are counterbalanced by downsides (allergies, phobias, or messes).  Thus, … Continue Reading

Does YOUR Website Have to be Accessible Under the Americans with Disabilities Act?

Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that. Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re … Continue Reading

Andrew Carnegie’s Advice On Corporate Matching And Avoiding Criminal Prosecutions

Many employers have matching programs for charitable contributions. Under such policies, the employer donates dollars equal to each employee donation to any 501(c)(3) organization. This is American capitalism at work; this is precisely and exactly what Andrew Carnegie advocated in his epochal book The Gospel Of Wealth in 1889. But, business life is riskier 125 … Continue Reading

Alter Egos: Where Fiction Becomes Labor Law And Vice Versa

Bruce Wayne. Clark Kent. Sir Percy Blakeney. In addition to being dashing literary figures, each of these men share a common trait – each has an alter ego. Donning a cape, the stoic Bruce Wayne becomes the intrepid Batman. The nerdy, spectacled Clark Kent transforms into the swashbuckling Superman. The foppish, self-obsessed Sir Percy Blakeney … Continue Reading

NLRB Toasts Chicago Bakery On English-Spanish Translation

Mistranslation is both innocent and ubiquitous. Mark Twain had fun with the mistranslations of one of his short stories into French. Indeed, literary superstars frequently acknowledge that translations are invariably imperfect. Jorge Luis Borges’ line — “the original is unfaithful to the translation” — exposes that variance with irony. Both the innocence and the inevitability … Continue Reading

“No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection?

Recent headlines from the Silicon Valley suggest that “no-hire” agreements are illegal, immoral, and unsustainable. But, those headlines address blanket restrictions negotiated between competitors. Targeted restrictions between supplier company and customer company are entirely different. The Department of Justice’s Competitive Impact Statement (“DOJ CIS”) in those Silicon Valley cases acknowledges that distinction: “An agreement that … Continue Reading

The Goldilocks Paradigm In RIF Releases

Obtaining an effective waiver of claims in the context of a reduction in force, an exit incentive, or other termination program is tricky. The Older Workers Benefit Protection Act (OWBPA) has numerous requirements that must be followed “just right” in true Goldilocks fashion. Compliance with the OWBPA is crucial because an employee, over the age … Continue Reading

Why Private Equity Funds Face Employment Risks

Suddenly, the advance sheets show a wave of litigation targeting private equity funds. See, e.g., Guippone v. BH S&B Holdings LLC, 737 F3d. 221 (2d Cir. 2013) (private equity funds potentially liable for WARN Act liability); Oaktree Capital Management, L.P. v. National Labor Relations Board, 452 Fed. Appx. 433 (5th Cir. 2011) (same for unfair … Continue Reading

Background Checks: Ban The (Procrustean) Bed?

Question: What does Edward Snowden (N.S.A.’s infamous document leaker) have in common with Aaron Alexis (who shot 12 people at the Washington Navy Yard last fall)? Answer: Their employers’ background check said it would be just fine to hire each. In January, the U.S. Department of Justice accused the background checking firm of taking shortcuts … Continue Reading
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