Discipline and Termination

As employment lawyers based in California are well aware that post-employment non-compete agreements are generally void as a matter of law in this state. Further, there is precedent for awarding punitive damages and disgorgement of profits where employers have knowingly required employees to enter into invalid agreements. Also, the DOL has actively pursued California-based companies engaging in anti-competitive practices when it comes to talent.

Against that backdrop, however, employers need not “throw in the towel” completely when it comes to post-termination restrictive covenants as there are a few narrow scenarios that allow for enforceable post-termination non-competes in California in the right circumstances, and a potential new take on an old strategy to consider.

Continue Reading Can Employers Use The California Labor Code To Protect Company Assets?

New York state just released draft guidance and models for employers to comply with the state’s new sexual harassment prevention policy and training requirements, which go into effect on October 9, 2018. The state is encouraging comments from the public, employers and employees through September 12, 2018, which can be submitted through the state’s website.

Continue Reading New York State Releases Proposed Sexual Harassment Prevention Guidance

A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more.

The panel vacated the NLRB’s decision in a case involving an employee who was fired for abusing his employer’s Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the union election.) Before the appellate court, the NLRB unsuccessfully argued that a showing of a nexus, or a link between the employee’s protected activity and the adverse employment action, was not required to satisfy the employee’s initial burden in a wrongful termination case. The Eighth Circuit found that the NLRB misapplied the burden of proof, vacated the NLRB’s order and remanded the case with instructions to reconsider whether the general counsel could make the appropriate showing.

Click here to read more about this case, the reminder its decision serves and next steps employers should take.

Recent guidance issued by the NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, is a continuing testament to the NLRB’s impact on the changing legal landscape regarding workplace rules. On June 6, 2018, Peter Robb issued a 20-page Memorandum to the NLRB Regional Offices titled “Guidance on Handbook Rules Post-Boeing.”

Continue Reading The NLRB Issues Useful Guidance Providing Additional Clarity On Work Rules

Employment law practitioners are keenly aware of the McDonnell Douglas burden-shifting analysis in single plaintiff disparate treatment cases. Under the analysis, plaintiff must demonstrate (1) status as a member of a protected class, (2) an adverse employment action and (3) a similarly situated person outside the protected class who was treated differently. In a recent decision, Hansen v. Rite Aid, No. A-4750-16T4 (N. J. Super. Ct. App. Div., May 2, 2018), the New Jersey Court of Appeals provided a reminder that it is plaintiff’s burden to prove the alleged comparators are indeed similarly situated.

Continue Reading Reminder That It’s Plaintiff’s Burden To Prove Comparators Are Similarly Situated In Disparate Treatment Cases

Embracing mediation as a way to avoid litigation is not a sure-fire solution as one employer recently learned. See Unite Here Local 30 v. Volume Services, Inc., No. 16-55528 (9th Cir. January 26, 2018). Mediation is often employed as an alternative method of dispute resolution for its perceived advantages over traditional lawsuits (e.g. it can be quicker, less expensive and less formal than a court-driven process). For these reasons and others, many labor unions and employers frequently choose mediation as an alternative to arbitration.

Continue Reading Mediation Agreement In CBA Leads To Litigation

Baker McKenzie partner Ben Ho introduces Nadege Dallais to talk about employment laws in France and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. It should become easier for international companies in France to demonstrate that they are experiencing financial difficulties when trying to support economic dismissals.
  2. Damages in connection with unfair dismissals will become a bit more predictable because French law now places both a floor and a ceiling on the amount of damages available.
  3. Employee representation will become more simplified with employee delegates, health and safety committee and works councils being merged into one social and economic committee known as the CSE.
  4. In-house collective bargaining agreements should introduce more flexibility to employers because they will now be able to govern areas that historically were only set by law.

Download now on iTunes | Android | Stitcher | TuneIn | Google Play.

Our Baker McKenzie colleagues in our London office just shared their January 2018 Employment Law Update. Find it HERE.

Highlights include:

  • Increases to statutory payments for time off work
  • Tribunal claims: volume of claims increasing following abolition of tribunal fees
  • Brexit: proposed technical changes to employment laws published
  • Gender pay gap reporting: pressure on employers increases as government indicates that it will publish details of employers who have not yet registered on the government website

For more information, please contact your Baker McKenzie lawyer.

A recent Court of Appeal decision in the UK (Tillman v Egon Zehnder Limited) found that a post-termination non-compete restriction was unreasonably wide (and therefore unenforceable) on the basis that there was no carve out for shareholdings in the typically broad restriction which provided that the employee could not “directly or indirectly engage or be concerned or interested in any business carried on in competition with” the employer.

The Tillman court declined to sever (or “blue pencil”) the offensive wording and enforce the remaining provisions. Instead, the court invalidated the entire agreement.

Lots of non-compete covenants are broadly drafted and include catchall phrases like “concerned or interested in” and often do not include an express carve-out for shareholdings. As such, we suggest a quick review of your non-compete covenants in the UK (and other Commonwealth jurisdictions such as Hong Kong, Singapore and Canada) to determine if they are at risk of being deemed invalid. Seeking to enforce an invalid restriction could have costly consequences. However, there are steps you can take now, to mitigate the risk of voiding a restriction, even with existing employees.

Reach out to your Baker McKenzie lawyer for more details.

The Fifth Circuit held Monday, August 8, 2016, that employers who prohibit workers from storing guns in locked vehicles may be subject to wrongful discharge claims.  The decision was based on the Mississippi Supreme Court’s interpretation of a Mississippi statute, but Texas employers should take note—Texas has the same statute, potentially resulting in the same holding. Continue Reading Shots Fired By 5th Circuit – Prohibiting Guns in Parking Lots Could Lead to Wrongful Discharge Claims