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

As I have discussed in other blog posts, communications with in-house counsel that are not for the purpose of obtaining legal advice are not privileged. But what happens when outside counsel is hired to investigate a claim of harassment in the workplace and a second outside counsel is hired to provide legal advice?  Anyone who thinks that the subsequent communications involving those outside counsel will automatically be privileged had better read the recent decision by Magistrate Judge Kenneth P. Neiman (District of Massachusetts) in Koss v. Palmer Water Department.… Keep reading

For entrepreneurs starting a new business, the focus often is on developing the products or services being offered by the business and, maybe, financing for getting (and keeping) the business off the ground. Yet, regardless of whether the business offers products or services, no business can succeed without people. Therefore, setting up proper intake systems for hiring at an early stage is critical in order to limit exposure to employment issues as the business grows. One easy way to do this is by using a hiring/on-boarding checklist like the one set out below. While this checklist is not intended to be a comprehensive list of issues that all businesses need to consider when hiring, it should provide at least some general guidelines for hiring and on-boarding new employees. Every state has different laws applicable to hiring and on-boarding, so be sure to check your applicable state’s laws.

Prior to hire:

  • Prepare job application (for Massachusetts employees, you cannot request criminal history information and must include a statement that requesting the candidate to undergo a lie detector test is unlawful).
  • Prepare employee handbook, including “at will” status, hours of work, absence policies, anti-harassment/anti-discrimination policies (be specific about no retaliation and
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Porreca v. The Rose Group was a class action lawsuit brought by Carly Porreca and Charles Walton, alleging that their employer, Applebee’s Neighborhood Grill and Bar, had violated the Fair Labor Standards Act. After Porreca was dismissed from the lawsuit, the restaurant management company that owned and operated the Applebee’s at which Porreca and Walton worked, the Rose Group, sought a stay of the litigation as well as an order (i) compelling Walton to arbitrate his claim individually, and (ii) barring him from pursuing a class action in that arbitration.  In support of this request, the Rose Group relied on the fact that Walton had signed an agreement binding him to the company’s Dispute Resolution Program, which specifically stated the following:

The Company and I agree that all legal claims or disputes covered by the Agreement must be submitted to binding arbitration …. We also agree that any arbitration between the Company and me is of an individual claim and that any claim subject to arbitration will not be arbitrated on a collective or a classwide basis …. 

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Because ’tis the season to give, The In-House Advisor would like to give in-house counsel the following reminders so as to limit their companies’ holiday exposure:

Tip 1:  Religious discrimination and accommodations

As we all know, while the “holiday” season in December often refers to Christmas, there are many other religious holidays celebrated by workers, both now and throughout the year.  In-house counsel may wish to take the opportunity now to advise their companies’ managers to allow, and not interfere with, an employee’s observance of religious obligations.  For purposes of employment discrimination laws, the definition of “religion” is much broader than one might think and is not limited to major, organized religions.  Rather, “religious beliefs” protected by discrimination laws is defined as:

Moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.

It would behoove employers to carefully consider scheduling of work on holidays and planning and scheduling of holiday celebrations with an eye towards religious considerations. Likewise, being mindful of the religions practiced by company employees may avoid issues with respect to holiday parties.  For instance, depending upon the make-up of your workforce, scheduling a party for Friday night … Keep reading

Recent New Jersey Case Highlights Several Aspects of the Corporate Attorney-Client Privilege

In Hedden v. Kean University, the New Jersey Appellate Division ruled that an email sent by the University’s women’s basketball coach to the school’s in-house counsel was privileged even though a copy also was sent to the University’s Executive Vice President of Operations and later disclosed to the NCAA. The opinion, as well as the strong dissent, address several key aspects of the privilege that in-house counsel are well advised to keep in mind.… Keep reading

Time-honored precedent holds that “[a]n agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.”  Thus, as I discussed in a prior post, a letter of intent (LOI) will not be binding if it does not contain all of the material terms of the contemplated agreement.  But what happens if there is an open material term, and the parties agree to “negotiate in good faith” towards resolving that outstanding matter?  That is exactly the situation addressed by the Delaware Supreme Court in Siga Technologies, Inc. v. Pharmathene, Inc.… Keep reading

How an Outsider’s Presence Affects the Attorney-Client Privilege

On more than one occasion, an in-house counsel has been summoned to a strategy meeting about a potential or ongoing dispute, and when he arrives, he finds an outside accountant already seated in the conference room ready to participate in the meeting.  At this point, the in-house counsel’s gut reaction usually is to ban the accountant from the meeting so that the attorney-client privilege will not be destroyed.  While excluding the accountant from the meeting may ultimately make sense, making that judgment without some serious reflection could deprive the client of insights that may come with little or no risk and/or may be worth the risk of waiving the privilege.… Keep reading

The attorney-client privilege remains a topic on the mind of many in-house counsel.  I’ve written about it several times before, and on September 12 at 1:00 P.M., I am presenting a webinar with a live Q&A session on the attorney-client privilege with Commercial Law WebAdvisor.  Among other topics are the following:

  • When the presence of experts or other non-attorneys will or will not destroy the privilege
  • How the attorney-client privilege applies when the client is a corporation or other organization
  • How the privilege applies when the attorney is in-house counsel
  • What happens to the privilege when the client dies, ceases to exist or is sold
  • What risks a party may run by invoking the attorney-client privilege

If you have any interest in attending, please click here for more information about the webinar and pricing.… Keep reading