24th Annual Employment Law Update 2015 Seminar Materials - SALE!
| Publication Date: |
May 2015 |
| Available Formats: |
Print |
| Pages: |
295 |
TABLE OF CONTENTS
24th Annual Employment Law Update Seminar
LEGAL ETHICS ISSUES IN EMPLOYMENT LAW
Susanne Harris Carnell
Thomas P. Murphy
I. Joint Representations
A. Representation of Employer and Individual Defendant
B. Representation of Corporate Employee During Deposition Only
C. Representations of Multiple Plaintiffs
D. Other Joint Representations
II. Internal Investigations: An Ethical Minefield
III. Ex Parte Contact with Adversary’s Employee
ANNUAL EMPLOYMENT LAW CASE UPDATE
John M. Bredehoft
Zachary A. Kitts
I. Bowman Claims
II. Other Common Law Torts
A. Breach of Fiduciary Duty
B. Tortious Interference with Contractual Expectancy
III. Fair Labor Standards Act
A. The Motor Carrier Exemption to the FLSA
B. FLSA Statute of Limitations and Equitable Tolling
C. Compensable Time - Portal to Portal Act
D. Sovereign Immunity from FLSA Claims
IV. Family Medical Leave Act
A. Successor-In-Interest Liability
B. Paying for Your Replacement is not a Violation of the FMLAAnd
There is Always a Camera in a Stuffed Animal if You Work
Around Children
C. FMLA Remedies - Reinstatement
V. Title VII of the Civil Rights Act of 1964
A. National Origin and Religious Discrimination
B. Racial Discrimination
C. Sex Discrimination
D. Failure to Hire-Prima Facie Case
E. Sexual Harassment
F. Title VII Affirmative Defenses
G. Age Discrimination in Employment Act
H. Disparate Impact
VI. Americans With Disabilities Act
A. Failure to Hire
B. Reasonable Accommodation
C. Disability-Related Medical Inquiry
VII. Sarbanes-Oxley
VIII. Arbitration Agreements
IX. WARN Act
X. Federal Trial Practice
A. Sanctions for Failure to Appear at a Deposition
B. Attorney’s Fees Pursuant to Fed. R. Civ. P. 37
C. Exclusion of Expert Witness Testimony
XI. Civil Procedure
A. Amended Complaints and Dismissal Without Prejudice
B. Motion to Reconsider an Interlocutory Order
XII. Appellate Procedure
XIII. Business Conspiracy
XIV. Attorney’s Fees and Fee Disputes
XV. Computer Fraud and Abuse Act/Computer Torts
XVI. Regulatory Developments - Corporate Secrets, Confidentiality
Agreements and Ethics Compliance Programs
A. The BARKO Opinion and 48 CFR § 52.203-13
B. The Dodd-Frank Act and Rule 21F-17
EMPLOYMENT TORT CLAIMS
Stephen E. Robinson
James B. Thorsen
Jesse A. Roche
I. Common Law Defamation
A. General Elements of a Cause of Action
B. Public or Private Plaintiff?
C. Defenses
D. Damages
E. Related Cause of Action - Insulting Words
II. Malicious Prosecution
A. General Elements of a Cause of Action
B. Defenses
C. Damages
D. Related Cause of Action
III. Negligent Hiring, Retention & Supervision
A. Negligent Hiring
B. Negligent Retention
C. Negligent Supervision
D. General Defenses
E. General Damages
IV. At-Will and Public Policy Exceptions
A. Courts Reaffirm Virginia’s Adherence to the Employment-at-will
Doctrine
B. No Individual Liability for Investing Claim; Plaintiff Need Not Cite
Specific Statute for Wrongful Termination Claim
C. Suspension as basis for Bowman Claim
D. Constructive Discharge as Basis for Wrongful Termination
E. Whistleblower Retaliation as Basis for Wrongful Termination
F. Plaintiff is Required to Identify a Specific Virginia Public Policy
G. Plaintiff is Not Required to Identify a Specific Virginia Public
Policy
H. Title VII Does Not Constitute State Public Policy for Wrongful
Discharge Claim
I. Virginia’s Wage and Payment Act Can Establish a Bowman
Claim
V. Tortious Interference
A. Tortious Interference with Contract Rights
B. Tortious Interference with Business Expectancy
C. Tortious Interference with At-Will Contracts
D. Tortious Interference - An Intentional Tort
E. Objective Elements of the Prima Facie Case
F. Five Year Statute of Limitations Period Applies
G. Relationship of Parties
H. Choice of Law Based on Place of Liability Event
VI. Conspiracy
A. Elements of a Common Law Conspiracy Claim
B. Elements of a Statutory Business Conspiracy Claim
C. Employment Interests are Personal and Not Actionable Under
Virginia Business Conspiracy Statute
D. Conclusory Allegations Insufficient to Support Conspiracy Theory
of Jurisdiction
E. Tortious Interference Claims Qualify as Requisite Unlawful Act to
Proceed on a Business Conspiracy Claim
F. Court Reaffirms Intra-Corporate Immunity Doctrine
G. Co-Conspirators are in Privity; Claims Barred by Res Judicata
H. District Court Confirms That Conspiracy Suits May Proceed Against
John Doe Defendants
I. Court Refuses to Hold That Conspiracy Claims are Preempted by
VUTSA Prior to Determining Whether Information Was a Trade
Secret
THE NUTS AND BOLTS OF DRAFTING EMPLOYMENT AGREEMENTS
John E. Davidson
Sean M. Gibbons
I. Why Have An Employment Agreement?
A. Employee’s Perspective
B. Employer’s Perspective
II. Term
A. Fixed Term
B. Renewal Periods
C. Evergreen Provisions
III. Title/Duties/Hours
A. Title
B. Duties
C. Hours
IV. Compensation/Benefits
A. Base Salary
B. Bonuses
C. Leave
D. Employee Benefits
E. Perks
V. Termination
A. “For Cause” / “Without Cause” / “Good Reason”
VI. Severance
VII. Restrictive Covenants
VIII. Procedural
A. Arbitration
B. Choice of Law/Venue/Forum Selection
C. Jury Waiver
D. Severability
E. Entire Agreement
F. Assignment
G. Amendments
THE END OF THE ROAD: CURRENT ISSUES WITH SEVERANCE
AGREEMENTS, SETTLEMENTS, AND OFFERS OF JUDGMENT
Overview and Defense Perspective
Edward Lee Isler
I. Current Issues with Severance Agreements
A. Background
B. EEOC’s Hostility to Severance Agreement Provisions That
Interfere with Commission Investigations
C. Recent EEOC Lawsuits Over Severance Agreements
D. How Should Employers Respond to the EEOC’s Position
E. Drafting Tips for General Severance Agreements
F. Special Issues Under Severance Agreements
G. Additional Requirements for ADEA WAivers
H. Effect of Failure to Comply with OWBPA Requirements
I. Severance Payments Under an Established Policy
J. Model Severance Agreement
II. Strategies for Settlement
A. Evaluating a Case - Defense Perspective
B. Windows for Settlement
III. Use of Rule 68 Offers of Judgment
A. Background
B. Practice Tips for Making and Responding to Offers of
Judgment
C. Drafting an Offer of Judgment
D. Strategies for Use
E. Offers of Judgment Involving Multiple Parties
F. Related Concept: Unconditional Offers of Reinstatement
IV. Enforcement of Settlement Agreements
A. Enforceability of Settlement Agreements Generally
B. Enforceability of Oral Settlement Agreements
C. Procedure for Enforcement of Oral Settlement Agreements
D. Remedies Available for Parties Seeking to Enforce Settlement
Agreements
E. Obtaining Relief from Judgment of Dismissal Pursuant to
Settlement
F. Enforceability of Certain Settlement Provisions
V. Drafting Settlement Agreements
A. Entering Into a Settlement Agreement - Defense Perspective
VI. Tax Consequences of Settlement Agreements
A. Taxation of Damages
B. Allocation of Damages for Tax Purposes
C. Taxation of Attorneys’ Fees
Overview and Plaintiffs’ Perspective
Harris D. Butler
I. Background and Themes
A. Background
B. Facts, Facts, Facts
C. 99% Perspiration... (Out-work, Out-think, “Out-smart” the
Other Side)
D. Turn the Prism from “Severance Offered” to “Value of Release”
E. Timing of Settlement Discussions
II. Common Employment-Based Claims
A. Available Statutory Claims
B. Common Law Claims
C. Typical Presentations
D. Presenting the Issue/First Contact - The Representation/Demand
Letter
E. Dynamics of Direct Settlement Discussions
F. Mediation Dynamics
G. Settlement Conference Dynamics
H. Offers of Judgment
III. Proposed Severance Agreements (and Later Settlement Terms)
A. The Severance Offer Dynamic
B. Claims Released
C. Common Proposed Terms and Responsive
VIRGINIA WAGE PAYMENT LAWS
David R. Simonsen, Jr.
A. Materials Attached to This Outline
B. Department of Labor and Industry (“DOLI”): Division of Labor and
Employment Law
C. Private Application and Use of Virginia Code § 40.1-29
D. Non-Payment of Wages Could Result in Property Seizures
DEDUCTIONS FROM WAGES IN VIRGINIA
Edward L. Isler
FLSA ‘WHITE COLLAR’ EXEMPTION CHANGES: THE PROPOSED
RULES ARE (STILL) COMING
Nancy S. Lester
I. Background
II. The Current Exemptions: A Refresher
III. The Change: What Can We Expect? 3
IV. Potential Impact of Anticipated Change
THE EMPLOYMENT PRENUP: DRAFTING RESTRICTIVE COVENANTS
IN EMPLOYMENT AGREEMENTS
Linda Jackson
Burt H. Whitt
I. Current Test for Enforcement of Covenants Not to Compete in
Virginia
II. Lawyers Should Exercise Extreme Care in Drafting Covenants for
Employers
III. Drafting Pointers
A. Choice of Law and Forum
B. The Use of Severability and Assignability Clauses are Highly
Desirable, If Not Essential
C. Consider a “Covenant of the Essence” Provision
D. Consider an Attorney’s Fees Provision
E. A Contractual Jury Waiver Clause May Be Appropriate
F. Limitations on an Individual’s and/or Entity’s Rights to Hire
Away Employees Will be Enforceable Under Appropriate
Circumstances
G. Provisions Prohibiting Disclosure of Confidential Information May
Also be Considered
H. Avoid Relying Upon Form Covenants
I. Be Careful to Limit Employee From Any and All Capacities That
Are Competitive With Employer
J. Remember That Courts Will Not Enforce Restrictive Covenants
Whenever Language is Vague or Ambiguous
K. Don’t Forget That Contracts of This Nature Should be Signed to be
Enforceable
L. Consider Including Prohibitions on “Indirect” As Well As “Direct”
Competition and Solicitation
IV. Suits to Enforce Covenants and Other Related Litigation
A. If injunctive Relief is Sought Plaintiff Must Move Promptly
B. Beware of Demurrers
C. Which Parties Should Be Sued and For What
D. Even Without a Covenant Not to Compete, An Employer May Be
Entitled to Enjoin a Former Employee From Competing
Susanne Harris Carnell
Thomas P. Murphy
John M. Bredehoft
Zachary A. Kitts
Stephen E. Robinson
James B. Thorsen
Jesse A. Roche
John E. Davidson
Sean M. Gibbons
Edward Lee Isler
Harris D. Butler
David R. Simonsen, Jr.
Nancy S. Lester
Linda Jackson
Burt H. Whitt
Print Only - $90
CLEAR THE DOCKET SALE - NOW JUST $29! |