Wednesday, December 12, 2007

Office Party Season

Once again, we are approaching that time of year where companies host holiday parties. Office parties are a great way to thank employees and customers for their contributions in making your business successful. However, hosting a party can create liability as well, particularly where alcohol is being served, as employees and other guests may consume alcohol, drive their vehicles and can suffer some kind of injury.

According to Insurance Agents & Brokers of Pennsylvania Inc., 70% of all companies that have a holiday party will serve alcohol. Your state's Dram Shop law may apply to a private party. Put another way, an employer can be held liable for hosting or sponsoring a party where an attendee leaves intoxicated and causes injury to themselves or others.

A good suggestion is to either not to serve alcohol or to limit the number of drinks that the company offers to employees. Coupons for two drinks per person is probably sufficient; thereafter, if employees or their guests want to continue to consume alcohol, they can do so on a cash basis. Of course, the company still has a duty to observe behavior and to discourage and prevent anyone from driving home intoxicated.

Finally, if you allow employees and their guests to consume alcohol, you should be prepared to offer taxi or other transportation to allow for alternative ways to get intoxicated persons home. Some companies hold parties at hotels, so why not reserve a block of rooms (at a discounted rate) to allow employees and their guests to stay over night?

Tuesday, November 13, 2007

Changes to Arbitration Coming?

Congress is considering legislation that would dramatically change the ability of an employer to enter into a pre-dispute agreement with employees that calls for employment disputes to be arbitrated. Under the pending bill, known as "The Arbitration Fairness Act of 2007", arbitration agreements that are entered into before a dispute arises, and that are subject to the Federal Arbitration Act (FAA) would be deemed unenforceable. Employers would have to get employees to agree to arbitrate only after a claim arises.

Further, the bill would give additional oversight functions to a court of law. Existing law leans towards giving great deference to arbitration awards. Courts are very reluctant to overturn an arbitrator's decision unless it is manefestly unjust, obviously in contravention of existing law, or was rendered by fraud.

In addition, the US Supreme Court just heard a case that may judicially expand the role of a court in overseeing/enforcing arbitration awards. In Hall Street Associates v. Mattel, Inc., cert was granted in a case where the parties negotiated an arbitration agreement that expanded the role of the judiciary beyond that provided under the FAA. The dispute arose over a lease which did not contain an arbitration clause. The parties went to litigation. During litigation, they agreed to arbitrate the remaining issues, leaving the court to approve the arbitration agreement and allowing the court to review the arbitrator's findings and conclusions (include a finding of any error by the arbitrator). The arbitration agreement conflicts with the FAA in that the FAA does not allow review of an arbitrator's factual or legal findings.

After arbitrating, both sides appealed the award. The court vacated the award based on its finding of legal error by the arbitrator in applying state law. The arbitrator then revised his award per the court's interpretation of state law. Both parties again sought judicial review, but the court upheld the ruling.

The question for the US Supreme Court is whether a court can enforce a contractual provision that expands the standard of review of arbitration awards under the FAA. Stay tuned...

Tuesday, November 6, 2007

Managing Your Email Accounts

I just read a case from a federal court in Colorado that concerns lawyers and their obligations to stay informed with hearing dates and court appearances. In the case, Pace v. United Services Automobile Association, No. 05-cv-01562, 2007 WL 2022059 (D. Colo. July 9, 2007), a Magistrate Judge granted defendant’s motion for attorney fees for plaintiff’s and his attorneys’ failure to appear at a settlement conference. Plaintiff's counsel did not receive notice of the settlement conference, which the court sent via email. Plaintiff's counsel said that the notice was treated as SPAM as was filted into the "junk email" folder.

The Judge found that plaintiff’s counsel failed to show that his absence at the conference was “substantially justified” or “that other circumstances would make an award unjust.” The Court held that attorneys are responsible for establishing office procedures to ensure receipt of notices from the Court: “It is incumbent upon attorneys to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received.” The Court went on to indicate that it is the attorneys’ responsibility to monitor cases and that to treat electronic notices as a “functional equivalent of junk mail” is unacceptable.

This ruling could certainly be used to argue that an employer's failure to receive an email from an employee could be insufficient if it went into a junk email folder. By way of example, if an employee sent an email to human resources lodging a complaint of harassment and for some reason the HR person did not receive or respond to it because it got filtered, a court could hold that the employer's failure to take prompt remedial action violated Title VII.

What this ruling suggests is that it is simply not good enough to say that you never received an email and that it "must have gone into the SPAM folder". It may be that the employer's duty is to review junk emails to make sure that there aren't any non-SPAM items that require attention. Under this ruling, it may be negligent or irresponsible for members of management to communicate by email but not check the junk email folder.

Friday, November 2, 2007

Fake Email Alert

I have become aware of a recent email scam that is circulating. The email comes from what is purportedly the EEOC or FTC. The email claims that a customer has lodged a complaint against the recipient and asks to hit a link to review or respond to the complaint. In actuality, hitting the link will unleash a virus on your network or computer.

According go the FTC:

A bogus email is circulating that says it is from the Federal Trade Commission, referencing a “complaint” filed with the FTC against the email’s recipient. The email includes links and an attachment that download a virus. As with any suspicious email, the FTC warns recipients not to click on links within the email and not to open any attachments.

The spoof email includes a phony sender’s address, making it appear the email is from “” and also spoofs the return-path and reply-to fields to hide the email’s true origin. While the email includes the FTC seal, it has grammatical errors, misspellings, and incorrect syntax. Recipients should forward the email to and then delete it. Emails sent to that address are kept in the FTC’s spam database to assist with investigations.
Simply opening the email does not appear to cause harm. However, it is likely that anyone who has opened the email’s attachment or clicked on the links has downloaded the virus on their computer, and should run an anti-virus program. The virus appears to install a “key logger” that could potentially grab passwords and account numbers. More information about bogus emails, phishing, and virus protection is available at

The EEOC version of this scam is slightly different, but has the same effect (a virus). According to the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) late today notified the business community and general public to a "phishing" e-mail circulating to companies that purports to be from the federal agency regarding a harassment complaint. The bogus e-mail contains a Trojan Horse Virus that is likely to harm a recipient's computer if the user clicks on the referenced web link and/or downloads the attached file.

The phony e-mail to employers -- being circulated under the subject "Harassment Complaint Update For"-- contains links where the respondent can allegedly access details of a fake discrimination claim. The EEOC has reported the issue to appropriate authorities.
The EEOC's policy is to notify an employer of the filing of a charge of employment discrimination using the U.S. Postal System. Because of security concerns, the EEOC does not notify employers of the filing of a charge of discrimination via e-mail. Consequently, if a company receives an e-mail notification which purports to advise the respondent of the filing of a charge of employment discrimination with the EEOC, the federal agency urges users to delete it immediately.
The contents of the phishing e-mail include an EEOC logo under the subject line and contain purported language from the EEOC under a subject heading, "Employer Liability for Harassment." Excerpts of the phishing e-mail are highlighted below:

FROM: Equal Employment Opportunity Commission
SUBJECT: "Harassment Complaint Update For"
This is an automated email that confirms the registration of harassment complaint #number...this harassment complaint can lead to law enforcement action. You can download and print a copy of this complaint to keep for your personal records here...Our staff will keep you updated regarding the status of our investigation...To check the status of your complaint access:

Be advised that it is not common for a Federal agency to contact a company with regard to a complaint via email. A formal letter is usually sent by mail. Further, most government communications will include a telephone number to contact the field office or investigator.

Rule of thumb: don't click on attachments if you don't know the sender. If it appears that you received an email from the government, your bank or credit card company, never provide personal or senstive information. Ask yourself: wouldn't my bank or credit card company have all of my contact information? Why would they need me to verify it?

Finally, you should have a spyware program and antivirus program installed on your computer. I don't know if there has been a fix or virus definitions update for this virus,but why take a chance?

Thursday, October 18, 2007

Restrictive Covenants for Your Employees to Sign?

I hear all the time that it's not worth having employees sign a noncompete or other restrictive covenant agreement because they are unenforceable. This is more of an urban myth. While restrictive covenants (namely, noncompetes, nonsolicitation and confidentiality agreements) may be challenging to enforce, they can be a valuable tool for a company to use.

Generally speaking, the law governing restrictive covenants is state-specific, so what is binding and enforceable in Ohio may not be sufficient under Georgia law. I usually tell employers that they should view restrictive covenant agreements as deterrants and not ironclad documents. Whether a restrictive covenant is enforceable can depend on the employer's industry, employee's scope of duties, regularity of contact between the employee and customers, the duration of the covenant and geographic territory in which the employer is trying to restrict the employee.

An employer should decide what it is trying to accomplish by having an employee sign a restrictive covenant agreement:
  • Are we trying to prevent the employee from taking keep personnel with them to another job if they leave?
  • Are we trying to prevent the employee from leaving and opening a competing business?
  • Is there confidential or proprietary information that the employee could misappropriate for his/her own benefit?
  • Are there customers that the employee has closely worked with that might stop using the employer's services if that person ceases employment?

A restrictive covenant should be drafted in a manner that is the least restrictive as necessary. In states like Georgia, courts will not "blue pencil", meaning they will not rewrite the agreement to make it enforceable if it is overly broad or vague; the restrictive covenant is either enforceable on its face or it fails in its entirety.

Litigating a restrictive covenant agreement can be tricky. If a court rules that it is unenforceable, then every employee who signed the same agreement will be able to claim that his/her agreement is also unenforceable. The employer then has to go back to all employees and have them sign revised agreements (presumably "new and improved"). What if an employee refuses to sign a new agreement? Is the employer prepared to terminate that person for not signing.

Challenging stuff to say the least...

Monday, October 8, 2007

Know who you really are interviewing

I just read an article about an attorney who applied for a position and was disbarred for misrepresenting information on her resume. It seems that the attorney's immediate prior employer was her husband. She did not explain this on her resume, nor did he disclose that she was married to her boss, despite the fact that she used her husband's letter recommendation in support of applying for the position. This scenario shows you that you never know who you are interviewing or how accurate references or resumes are that are submitted to your company.

I have a client that never calls the reference on a resume; they call the supervisor of the employment reference. After all, who is going to provide a reference to someone that's going to say something negative about the applicant?

Also, after making an offer to someone, it's a good idea to conduct a criminal background, credit check (particularly if the position involves A/P, accounting or finance) and to verify employment. I defending a recent employment discrimination case, a plaintiff completely omitted an employer on her resume for employment after leaving my client's employ. Further, in inquiring further, we learned that the person had mispresented her educational background, including claiming to have earned a degree from a particular university. All it took was a call to the registrar's office to learn that they had no record of the person having graduated.

Ask yourself: if a person would lie about their education or employment history to get this job, what would he or she billing willing to lie about to keep this job?

Friday, October 5, 2007

EEO-1 Reports

Effective the end of September, covered employers must use the new EEO-1 reporting form. An employer with 100 or more employees or a federal government contractor with at least one government contract of $50,000 and 50 or more employees is a covered employer and must file an EEO-1 Report form annually.

According to the EEOC, the "EEO-1 report is the principal reporting form by which certain employers provide the federal government with a count of their workforces by ethnicity, race and gender, divided into job categories."

Changes include:
  • Adding a new category titled "Two or more races not Hispanic or Latino";
    Separating "Asians" from "Pacific Islanders";
  • Adding a new category titled "Asians not Hispanic or Latino";
    Adding a new category titled "Native Hawaiian or Other Pacific Islander not Hispanic or Latino";
  • Extending the EEO-1 data collection by race and ethnicity to the State of Hawaii; and
    Strongly endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.
  • Dividing "Officials and Managers" into two levels based on responsibility and influence within the organization: "Executive/Senior Level Officials and Managers" and "First/Mid-Level Official and Managers"; and
  • Moving non-managerial business and financial occupations from the "Officials and Managers" category to the "Professionals" category.
This is not an area or issue to take lightly, as there are penalties for noncompliance. The EEOC can obtain a court order requiring you to make a future filing and, for federal contractors, record keeping violations could lead to debarment from future contracts.

Tuesday, September 25, 2007

No-Match Letters and Regulations

I don't know if you have been reading about the no-match letter issue and new regulations. A no-match letter is where the Department of Homeland Security (DHS)sends a letter to an employer advising it that an employee may be using an improper SSN. The SSN does not match what the DHS has on file - the person's name and SSN do not match up. Of course, every employer should verify a person's right to work in the US before allowing him/her to perform services. Within 48 hours of hire, an employer should present form I-9 to the prospective worker. If you receive a no-match letter, you are required to respond. Getting a no-match letter does not mean that your employee gave a false SSN; it could mean that the person has changed their name (by marriage, for example) or there could be a typo on a filed document (like a transposed number on a W-2). You have to give the employee an opportunity to verify and correct the potential error.

On August 15, 2007 DHS issued a regulation entitled “Safe Harbor Procedures for Employers who Receive a No-Match Letter.” The amended regulation describes the obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or DHS. It also describes "safe-harbor'' procedures that the employer can follow in response to such a letter so that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States.

The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in any of the regulation's examples will depend on the totality of relevant circumstances. The "safe-harbor'' procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process.

On August 31, 2007 a California federal trial judge has issued a temporary restraining order prohibiting the DHS from mailing no-match letters or taking any other action to implement its new regulation. See AFL-CIO v. Chertoff (N.D. Ca. Aug. 31, 2007).

A copy of the regulations is at

The injunction does not mean that employers should not continue to diligently verify whether a worker may be lawfully employed, nor does it mean that you should ignore a n0-match letter if you receive one.

Stay tuned for updates on this matter.

Friday, September 21, 2007

Train, train, train

It amazes how companies can spend thousands of dollars are marketing, branding and the like, but zero time and expense on training. As many of you know, a "best practices" as an employer includes regular training for management and staff on complying with the company's policies and procedures. It is a good idea to periodically confer with counsel on whether your training presentations, employee handbook or other policies are in need of updating. One area that a company should regularly focus on is harassment prevention. When most people think of harassment, they think of sexual harassment only. However, the law covers all kinds of harassmsent, including on the basis of religion, race and even sexual orientation. In some states, such as California, companies are required to conduct mandatory annual sexual harassment training. I advise my clients to conduct at least two training sessions a year that all employees have attend. Aside from harassment, your company should choose a topic that is of concern and that is a potential issue, but you should never single out an employee or a specific situation when training. Keep it generic. When I am asked by a client to conduct training, I also use visual and written materials. While I give specific examples of violations, or inappropriate behavior, the examples are never "personal"; they remain generic.