Confidentiality and Non-Disparagement

In Part 1 I shared with you five commonly overlooked terms in executive separation agreements. Here are five more.

6. Release Timing. If the executive is excused from performing work or coming to the office well before her last day of employment, the company may want to have the executive sign an agreement close to the day the executive is notified about her separation because the company will remain exposed to liability for the period of time between the executive’s signing the separation agreement and her actual last day. In addition, I recommend having the executive sign a second release on her actual last day of employment – and make signing that second release contingent upon receiving any post-termination severance benefits.

7. Post-Termination Restrictive Covenants and the Integration Clause. Many agreements contain a boilerplate integration provision, reciting that the agreement is the entire agreement between the parties and that the executive is not relying on anything not contained in the written document. If the executive has signed a prior agreement containing restrictive covenants which are intended to survive termination of the executive’s employment, such a general integration clause could void the prior post-termination restrictive covenants. An alternative … Keep reading

More than once, an in-house counsel has called me up wanting to sue a former employee because s/he has been “bad-mouthing” the company despite having agreed not to disparage the company as part of a settlement or severance agreement.  Nevertheless, I Often have had to give the client the bad news that, in light of the actual contractual language, there would be little chance of prevailing and/or, even if we did prevail, the legal fees probably would exceed the damages we might reasonably expect to recover.  The good news for those of you reading this post, however, is that there are three simple steps you can take to greatly enhance the effectiveness and enforceability of any non-disparagement clauses you would like to implement in the future. … Keep reading

In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records.  Here in Part 3 and the last part of this series, I address the process of the handling of the documents.

 Step 5:  Handling Documents with CORI

Criminal records information obtained from any source is confidential, and employers must take precautions to insure that such information is protected from disclosure.  Because of the highly confidential nature of criminal records, the number of individuals who are authorized to request, access, receive and review such  information must be limited, and there are strict procedures for handling, storing and destroying criminal records information.  The new regulations provide for controls by:

  • Requiring the designation of a CORI Representative for an employer;
  • Requiring a Secondary Dissemination Log to track all distribution of CORI;
  • Limiting employer registration for CORI to one year increments; and
  • Limiting the validity of employee or applicant Acknowledgement Forms to 12 months from the execution date or the end of employment, whichever is sooner.
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In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012.  This post addresses the next two steps in this process.

These blog posts also address when an employer conducts its own CORI checks.  However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks.  If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.

Step 3:  Notifying Employee/Applicant of CORI

Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.

If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:

  • notify the individual in writing of the potential adverse employment action;
  • provide a copy of the CORI, identifying
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