Discipline & Termination

Co-authored by Mike Leggieri (Employment & Compensation Partner, SF) and Steven Chasin (Litigation Associate, DC)

To paraphrase Pharaoh Ramses II, so it is written, so it shall be done.

In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide this question, even if a court considers the arbitrability argument to be “wholly groundless.”

Continue Reading US Supreme Court Rejects A “Wholly Groundless” Exception To Clauses Delegating Arbitrability

2018 was, without a doubt, another extraordinary year for US employers. The #MeToo movement continues to have a tremendous impact on the workplace. In addition, the thorny issue of how to manage contractor classifications in the gig economy continued to evolve and new DOJ enforcement activity is heightening concerns about no-poaching agreements and other antitrust activity. In 2019, employers will confront a host of new laws in 2019 on topics ranging from sick leave, lactation accommodation, salary history inquiries and much more.

Our 2018/2019 Digest is a fantastic resource to help you navigate the changes ahead and chart your course for 2019.

 

Click here to download the full Digest.

California courts mostly take a no prisoners approach to Business and Professions Code section 16600, the statute prohibiting illegal restraints on trade. Courts broadly interpret Section 16600, which states that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void,” to invalidate most post-employment non-competes and customer non-solicits, including covenants preventing former employees or their new employers from “hiring” employees of a former employer (so-called “no hire agreements”). But Section 16600 does not bar all post-employment covenants–just those that “restrain” trade.

Continue Reading Familiarity Breeds Contempt—And [Litigation Over Employee Non-Solicits]

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

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.

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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.