The Lawletter Vol 39 No 6
EMPLOYMENT LAW LEGAL RESEARCH BLOG
Topics: Dora Vivaz, legal research, employment law, NLRB, posting notice rule, abandoned, board's purpose is dispute resolution, 4th Cir., U.S. Chamber of Commerce v. NLRB, DC Cir., Nat'l Ass'n of Mfrs. v. NLRB
The Lawletter Vol 38 No 8
Topics: Dora Vivaz, legal research, The Lawletter Vol 38 No 8, civil rights law, Title VII, liability on employers, claims on supervisory employee when government is, Stallone v. Camden County Tech. Schools. Bd. of Ed, DNJ, official capacity when government entity is not a, split in circuits
The Lawletter Vol 38 No 6
The increasingly complex statutory and regulatory requirements imposed upon employers require that written policies be promulgated and maintained in order to avoid fines for noncompliance, exposure to liability from lawsuits, and punitive damages. Many federal laws, and an increasing number of state laws, require that employers promulgate and maintain written policies. Furthermore, it is no longer sufficient to simply pass out cookie‑cutter policies; to be effective, workplace policies must be precisely tailored and contain specific provisions required by the location of the workplace, the type of business involved, the number of individuals employed, and a host of other considerations.
A properly drafted and implemented written policy can be a valuable tool for employers. For
example, in EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013), the court noted the rule that an employer may avoid liability for punitive damages based on the actions of managerial employees by simply showing that it had implemented an antidiscrimination policy. Because the employer in that case had not made the modest investment in an adequate antidiscrimination policy, the court upheld an award of $200,000 in punitive damages. See also Dunlap v. Spec Pro, Inc., No. 11‑cv‑02451‑PAB‑MJW, 2013 WL 1397294 (D. Colo. Apr. 5, 2013) (to avail itself of the good‑faith compliance standard, and avoid vicarious liability for punitive damages in a Title VII action, an employer must (1) adopt antidiscrimination policies; (2) make a good-faith effort to educate its employees about these policies and the statutory prohibitions; and (3) make good-faith efforts to enforce an antidiscrimination policy).
In addition to insulating employers from potentially devastating punitive damages, properly drafted policies can help employers avoid liability entirely. In the following cases, employers were able to avoid liability for discrimination claims: Zakrzewska v. New School, 598 F. Supp. 2d 426 (S.D.N.Y. 2009); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 74 (1st Cir. 2008); McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004); Salazar v. U.S. Dep't of Justice, 98 F. App'x 623 (9th Cir. 2004); Talamantes v. Berkeley County Sch. Dist., 340 F. Supp. 2d 684 (D.S.C. 2004). In each of these cases, the employers had properly drafted, written policies prohibiting discrimination and setting out grievance procedures for resolving discrimination claims. Although a properly drafted policy can enable an employer, in many cases, to obtain summary judgment in its favor, a deficient policy may negate certain defenses and enable a plaintiff to survive summary judgment. Smith v. First Union Nat'l Bank, 202 F.3d 234, 245 (4th Cir. 2000).
In addition to policies prohibiting discrimination and harassment, employers should have written policies that include provisions covering wages and hours, benefits, leave, workplace safety, workplace conduct, and discipline. Most employers should also consider policies covering Internet and email use, recordkeeping, drug and alcohol use, and immigration law compliance.
Topics: legal research, John Buckley, The Lawletter Vol 38 No 6, written employment policies, tailored with specific provisions, good-faith compliance standard includes antidiscri, antiharassment, and statutory provisions, grievance procedures, wages and hours, benefits, leave, workplace safety and conduct, discipline
The Lawletter Vol 38 No 1
One of the legal arenas in which individual rights are pitted directly against business interests comes into play when an individual employee signs an employment contract containing a covenant not to compete. Not surprisingly, state courts are often called upon to referee disputes concerning the enforceability of such contracts. In a recent proemployer decision, a Florida appellate court ruled that an individual's change in status from an "employee" to an "independent contractor" did not affect the terms of the noncompete agreement that the individual had previously signed.
In Anarkali Boutique, Inc. v. Ortiz, 104 So. 3d 1202 (Fla. Dist. Ct. App. 2012), the Anarkali Boutique ("Boutique") sought a temporary injunction against Nahomi Ortiz for violating a noncompete agreement that Ortiz had signed when she began employment in 2008. This agreement stated, in relevant part:
In consideration for my at-will employment or continued at-will employment by [the company] and the compensation now and hereafter paid to me, I hereby agree as follows:
. . . .
I will not either during my employment with the Company or for a period of two (2) years after I am no longer employed by the Company, engage, as an employee, independent contractor, officer, director, or shareholder, in any employment, business, or activity that in any way competes with the business of the Company within a one-hundred (100) mile radius of any store, office, or facility of the Company. . . .
. . . .
Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
Id. at 1203.
In 2009, the Boutique began treating Ortiz as an independent contractor so that she would have the opportunity to earn more money through sales commissions. In 2011, Ortiz left the Boutique and began operating her own business, performing the same services, within the restricted area. In response, the Boutique filed a complaint for injunctive relief and a motion for temporary injunction against Ortiz.
As a defense against the motion, Ortiz argued that when the Boutique changed her status from employee to independent contractor in 2009, she ceased to be employed by the Boutique and the two-year restricted period set forth in the covenant not to compete began to run at that time. The trial court agreed with Ortiz and denied the Boutique's motion for temporary injunction.
On appeal, the appellate court reversed. In so doing, the appeals court relied upon the principle of contract construction that requires a court to examine the contract as a whole and to attempt to give effect to every provision. According to the appeals court, the trial court contravened this principle by failing to give effect to the final sentence of the noncompete agreement quoted above.
Topics: legal research, employment law, The Lawletter Vol 38 No 1, Charlene Hicks, covenant not to compete, balance of interests, employee becomes independent contractor, status does not change terms of initial contract, enforceability, Anarkali Boutique, Inc. v. Ortiz, FL Dist. Ct. App., applying principles of contract construction
The Lawletter Vol 37 No 11
Topics: legal research, employment law, John Buckley, The Lawletter Vol 37 No 11, American Taxpayer Relief Act of 2012, extended some Bush-era tax cuts, SS withholding increased, increased credit for employer-provided child-care, education assistance, and transit/carpool benefits, extension of federally funded unemployment compens
The Lawletter Vol 36 No 3
The Lawletter Vol 36 No 4
The Lawletter Vol 36 No 8
The Lawletter Vol 37 No 4
Topics: Dora Vivaz, legal research, employment discrimination, The Lawletter Vol 37 No 4, administrative remedies, exception to exhaustion requirement for retaliatio, Fentress v. Potter, exhaustion requirement not abrogated by Morgan