1. Recent rulings have created some further guidance that can help employers seeking to protect their interests and also help them know when to litigate. Plus, the pros and cons of garden leave provisions, with Peter Steinmeyer.

    This is an extended interview from Employment Law This Week® (Episode 117: Week of May 14, 2018), an online series by Epstein Becker Green. youtu.be/85-b3AHvWqI

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    This week, we focus on employee mobility, an area of law that’s top of mind for many employers and employees at all levels. The laws that apply to such tools as non-compete and non-solicitation agreements are changing almost daily in the courts and legislatures, and companies are finding it challenging to protect their confidential information, balance employee interests, and have enforceable protections. Aime Dempsey, from Epstein Becker Green, provides an update on some of the latest legislation in this area:

    “Just a couple of weeks ago, on April 26th, bills were proposed in both the United States House and the United States Senate that would ban non-compete agreements. Non-compete agreements are actually right now only banned in three states: California, Oklahoma, and North Dakota. So, this would be a broad, nationwide ban for any employers who engage in commerce or who make products engaged in commerce. In Idaho, a law that was favorable to employers in the non-compete arena has been pulled back a little bit. In New York City last summer, there was a law proposed to restrict non-competes for low-wage workers.”

    In terms of enforcement, employers have been watching and waiting to see whether the Department of Justice’s Antitrust Division will continue the Obama-era emphasis on anti-poaching agreements and other employee mobility issues in the Trump administration. We asked Aime if 2018 has brought any new insights:

    “It looks like, under this administration, the antitrust guidance will remain a priority. In October of 2016, the Department of Justice Antitrust Division announced a priority to enforce rules against no-poach agreements between employers. In January of this year, the DOJ Antitrust Division announced that it would be aggressively going after employers that violate the no-poach guidelines.”

    Recent rulings have created some further guidance that can help employers seeking to protect their interests and also help them know when to litigate. Here’s Peter Steinmeyer, from Epstein Becker Green, with more:

    “The lessons that employers can draw from recent non-compete and trade secret cases are that courts are reluctant to restrain an individual from going to work. However, if there was an actual theft of trade secrets, a court would be far more likely to grant injunctive relief. So, the cases that we see actually going to court and being filed tend to be those where there was an actual theft.”

    California is well known for its strict limitations on employers in this area. State law prohibits nearly all non-competition and non-solicitation agreements. Jonathan Brenner, from Epstein Becker Green, tells us how some employee departure protocols can help protect trade secrets:

    “Having well-prepared and thorough exit procedures for employees can be very helpful—procedures that include an exit interview process; processes for the return of equipment and other property; and the return of information, including information stored on the cloud or other web-based storage media. And an acknowledgement and certification form that serves as a reminder and statement of intent to comply with confidentiality obligations can all be very helpful, and they are very important features of such exit procedures. There are some more substantive arrangements that are at least possible in appropriate circumstances. Agreements for terms with employees that can be terminated at will early on by both sides is one example of that. Deferred compensation arrangements with vesting conditions as incentive for employees to stay on the job and not leave for a competitor and even ERISA plans that contain non-competition restrictions, which, at least as a matter of federal, ERISA law can be enforceable.”

    One option that employers in all jurisdictions can consider is the garden leave provision.

    “Garden leave provisions are clauses under which an employee will give 30 to 90 days’ advance notice of their resignation. They help employers, because they are an alternative to a traditional non-compete. Because they’re shorter in length, and because the employee is paid during the garden leave period, both employees and their new employers tend not to challenge them, and courts are more likely to enforce them.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. Carolyn Rincon, Senior Employment Counsel for Marsh & McLennan Companies, shares some tips on evaluating whether to bring discovery in-house.

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 116: Week of May 7, 2018), an online series by Epstein Becker Green. youtu.be/c2xVVm6MIVg

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C.

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  4. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    1. Legislation Introduced to Encourage Mobility

    Our top story: New legislation was introduced in Congress on employee mobility. Congressional Democrats have introduced bills in both houses targeting practices that curb competition between employers for workers. The legislation would effectively ban no-poaching agreements, which are, in most cases, already considered a criminal antitrust violation by the Department of Justice. But the bills go further to ban anti-competitive corporate mergers and prohibit non-compete agreements, except in limited circumstances. Jonathan Brenner, from Epstein Becker Green, has more:

    “Undoubtedly, the new legislation would require many employers to fairly significantly retool their employee hiring and onboarding practices, and their contracts that are in use with many of their employees. Another impact is in the enforcement area, as the new law apparently would give new enforcement powers to the federal Department of Labor for the prohibited activities. Right now, government fines, investigations, and audits are not things that employers have to contemplate with this kind of activity. The proposed legislation does not have bipartisan sponsorship. It has only been introduced by Democrats at this point. That could change, of course, but unless it does, the prospects for passage may be slim.”

    2. California Implements “ABC Test” for Independent Contractors

    California changes its test for independent contractors. The California Supreme Court has adopted the so-called “ABC test,” which is used in some other jurisdictions, for determining whether a worker is an independent contractor or an employee. California workers will now be presumed to be employees unless an employer can establish otherwise using the three-pronged test. California businesses that utilize independent contractors should review those relationships in light of the change. To keep up with federal and state-level wage and hour changes, download Epstein Becker Green’s app, the Wage and Hour Guide for Employers.

    For more, click here: https://bit.ly/2HSSQIJ

    3. Emails About Employment Conditions Protected Under the NLRA Despite Profanity

    Emails among employees about the terms and conditions of employment remain protected by the National Labor Relations Act (“NLRA”), despite the use of profanity. A National Labor Relations Board (“NLRB”) panel found that a restaurant in New York City violated the NLRA by firing four employees after a group email criticized some company employment practices and policies. The employer contended that the employees’ actions were not protected by the NLRA because the message contained profanity. The NLRB disagreed and held that the email does not lose protection under the NLRA because of profanity, and that the employees were entitled to reinstatement and back pay.

    4. Ninth Circuit: Clock Starts After Receipt of Notice for Title VII Suits

    The U.S. Court of Appeals for the Ninth Circuit sets the clock on suits under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII lays out a 90-day time limit for filing civil action suits once an employee receives a right-to-sue letter. Here, a barbershop employee filed sexual harassment and retaliation charges against her former employer. At issue was whether the 90-day clock began when the plaintiff received a right-to-sue notice from the Equal Employment Opportunity Commission or when she became eligible to receive one. The Ninth Circuit reversed a lower court’s decision, finding that the clock starts upon actual receipt of the notice.

    5. Tip of the Week

    Carolyn Rincon, Senior Employment Counsel for Marsh & McLennan Companies, shares some tips on evaluating whether to bring discovery in-house.

    Visit EmploymentLawThisWeek.com

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. New Jersey passes sweeping equal pay legislation. Governor Murphy has signed what some claim are the strongest equal pay restrictions in the country. The new legislation amends the state’s Law Against Discrimination to prohibit employers from paying members of a protected class less than other employees for substantially similar work. The legislation allows employees in those protected classes to recoup up to six years of back pay and prohibits employers from taking action against employees who discuss wages. Denise Dadika, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 115: Week of April 30, 2018), an online series by Epstein Becker Green. youtu.be/C4roMH2Ru6g

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week® tracks the top developments in employment and labor law and workforce management in a matter of minutes every #WorkforceWednesday. Presented by law firm Epstein Becker Green. Learn more at ebglaw.com/employment-law-this-week/

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