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Employment Law

Design restrictive agreements that protect you—and stick in court

12/15/2009

Do you rely on restrictive agreements (also known as noncompete agreements) to prevent employees from working for the competition and stealing your customers? If so, now is a good time to make sure those agreements will stand up in court.
A recent 11th Circuit Court of Appeals case, Proudfoot Consulting Co. v. Gordon, illustrates the obstacles and complexity that can trip up employers that take former employees to court.

Supreme Court to decide: Are employees’ personal text messages private?

12/15/2009

The U.S. Supreme Court agreed Monday to hear a case that could settle the contentious issue of whether employers have a right to read personal text messages employees send using employer-provided equipment and bandwidth. It’s yet another bump in the evolving landscape of employee use of technology at work (the topic, by the way, of this week’s HR Specialist webinar, "Employees Online: Social Media at Work").

$118 million doesn’t begin to cover Broadcom scheme costs

12/15/2009

If you’ve ever been involved in litigation, you know that lawsuits can be complicated and costly affairs. Your case undoubtedly pales in comparison to one about to be resolved in the U.S. District Court for the Central District of California. About the best that can be said for the case, involving an alleged stock-options backdating scheme at semiconductor maker Broadcom Corp., is that the lawyers will be well paid.

How to ensure settlements are the last word: Ask lawyer to draft all agreements

12/15/2009

The last thing you want after settling a discrimination or harassment complaint is for the case to rear its ugly head again. That’s why settlement agreements should include clear language releasing you—the employer—from any further liability. Your best bet: Have your attorney prepare all your settlement agreements to make sure they meet state and federal laws.

Check your pay rates! Obvious male/female disparity is probably ‘willful’ discrimination

12/14/2009

The Equal Pay Act makes it illegal to base unequal pay on gender. If an employee can show that a violation was “willful,” she has up to three years to sue after the last allegedly discriminatory paycheck; only two years if it’s not willful. Heads up: Courts will probably call any obvious wage disparity a “willful” violation.

Congress is considering five paid sick days for H1N1 exiles

12/11/2009

H.R. 3991 would guarantee workers with contagious diseases, such as the H1N1 flu virus, up to five paid sick days if their employer “directs” or “advises” them to stay home or go home due to the illness.

Remind supervisors: Don’t assume disability

12/11/2009

An employer that assumes an employee is disabled and then fires him or even just treats him differently than other employees may end up with an ADA lawsuit. That’s because the employee may not actually be disabled—but can still sue for disability discrimination based on the employer’s presumption that he is.

Be on guard against sexist hostile environment

12/11/2009

When we think of a hostile work environment based on sex, we often assume an overtly sexualized workplace. Transgressions such as viewing porn, posting lurid photos on cubicle walls and demanding sexual favors are clearly sexual in nature. But those aren’t the only things that can make an environment sexually hostile. Employees can launch a claim of hostile environment if they can show they were forced to work in a sexist environment.

Make sure attorney coordinates your response to disability retirement claim and ADA defense

12/11/2009

Employees who manage to win both disability retirement benefits and an ADA case get the best of all possible worlds—a regular retirement check, plus a lump-sum jury award for their employer’s failure to accommodate their disability. Employees can pursue both claims if they can show that, with an accommodation, they could have performed their jobs. But if it’s very clear from their testimony in the disability retirement case that they couldn’t possibly perform their jobs under any circumstances, then their ADA cases will be dismissed.

When it comes to retaliation fears, don’t sweat the small stuff—because courts won’t

12/11/2009

Sometimes it seems as though anything an employer does after an employee complains about discrimination can get turned into a retaliation case. It’s not actually that bad. The fact is, it’s only retaliation if it would dissuade a reasonable employee from complaining in the first place. Minor workplace changes don’t count.