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Managing the Modern Workplace
V&E International Labor & Employment Resources

Employers With Class Action Waivers in Arbitration Agreements Vindicated

As we have repeatedly discussed on the Managing the Modern Workplace blog, the fate of employers’ dispute resolution programs, and other arbitration clauses that include class and collective action waivers, has long hung in the balance. Today, in a 5-4 decision authored by Justice Gorsuch, the Court resolved the question of the enforceability of class and collective action waivers in favor of employers.

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Don't Be Surprised When an Employment Case Is SLAPP'ed

Consider a scenario that many in-house lawyers and HR professionals are all-too familiar with: an employee is terminated or leaves the company. After the employee’s departure, the company learns the employee has gone to work for a competitor, and after checking the employee’s computer, the company learns he plugged in a flash drive and downloaded files containing confidential information, including customer lists, just days before leaving. Under this scenario, the employee signed an employment agreement containing non-compete, non-solicit, and confidentiality provisions. 

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“Stark and Abrupt Change” Required for Constructive Notice in FMLA Cases

Many employers ignore the multitiered notice requirements of the Family Medical Leave Act (“FMLA”) (an issue that I will discuss in a future post). Nonetheless, most employers recognize that they need to be careful when terminating any employee for excessive absences or tardies if that employee ever suggested that he may be suffering, or have suffered from, a serious medical condition. It doesn’t matter if the company has tracked the employee’s absences as FMLA absences; an employer still risks being sued for FMLA interference or retaliation if the employee had provided some notice of a serious medical condition in the past. 

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Hot Topic Getting Hotter — UK "Worker" Status Cases

We have previously written about the UK’s “worker” status, an intermediate classification between an employee and a self-employed contractor, which affords some of the benefits and protections of employment (such as minimum wage and paid vacation). This remains a hot topic for employment law in 2018, with two significant cases working their way through the UK courts.

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"Document, Document, Document" Is Only Half the Battle

As someone who has tried dozens of employment trials — including a very recent one in which a jury found for my client — I can attest to the importance of having good documentation that corroborates the employer’s conversations with employees, especially when the employee subsequently disputes what was said. In my recent trial, for example, we were able to admit dozens of investigation reports that were made close to the time of the events and contradicted the plaintiff’s version of events. The jury was allowed to bring these documents back to the jury room with them and review them in deliberations — a very powerful tool for a jury that is otherwise relying on its collective memory in discussing evidence. Unfortunately, trial lawyers sometimes forget to tell their clients what they need to do in order to ensure that their valuable documentation will be admissible at trial.

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner

S. Grace Ho

S. Grace Ho Counsel

Jacob D. Ecker

Jacob D. Ecker Associate

Robert Sheppard

Robert Sheppard Associate