Wayne N. Outten - Executive Employment Lawyer New York City

Integrity is doing the right thing even if nobody is watching.

Wayne N. Outten

Managing Partner
New York Office
(212) 245-1000

About

WAYNE N. OUTTEN is founding and managing partner of Outten & Golden LLP. His practice focuses exclusively on representing individuals in all areas of employment law. He co-chairs the firm’s Executives and Professionals and Whistleblower Retaliation Practice Groups.

Mr. Outten’s practice focuses on representing high-level employees and professionals in all aspects of their employment, including negotiation of employment, compensation, and severance agreements. He is the author of the “Representing the Executive” chapter in Executive Compensation (BNA Books). His practice includes representing employees in multinational employment contexts, including expatriate and seconded employees.

Mr. Outten’s notable cases include: a recovery of more than $12 million in a gender discrimination/retaliation case against Morgan Stanley in federal court; an $18.9 million arbitration award in a breach of contract case against Deutsche Bank (with partner Larry Moy);  and a $71.5 million arbitration award under a profit participation plan against another international bank – perhaps the largest arbitration award in an employment case (with partners Larry Moy and Tammy Marzigliano).

Mr. Outten was selected by his peers as one of the “Best Lawyers in America” every year since 1987 and as one of New York’s Super Lawyers, where he is listed as one of the Top 100 New York Metro Super Lawyers every year since 2006. Best Lawyers designated him "Lawyer of the Year 2010" for Labor and Employment Law - New York City and "Lawyer of the Year 2012" for Litigation - Labor and Employment in New York City. He was selected for the Lawdragon 500 Leading Lawyers in America every year from 2005 through 2013, and for the Lawdragon 500 Leading Litigators in America in 2006.  Mr. Outten has been an AV Preeminent Rated Lawyer in the LexisNexis Martindale-Hubbell Top Rated Lawyers since 1992.

Mr. Outten was a Co-Founder in 1993 of Workplace Fairness, a charitable/educational organization, and is its current President. He is Co-Founder and Co-Chair of the Lawyers International Network for Employees and Executives (LINEE).

He was a law clerk for U.S. District Court Judge Gus J. Solomon, District of Oregon (1974-76) and was an instructor at the NYU School of Law (1976-1978). He was an associate and then a partner at Lankenau Kovner & Outten, LLP (1979-1998).

Mr. Outten received his B.S. from Drexel University in 1970 and his J.D. from New York University School of Law in 1974, where he was an Arthur Garfield Hays Civil Liberties Fellow.

(*Prior results do not guarantee a similar outcome.)

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Bar Admissions & Professional Activities

  • Mr. Outten was admitted to the New York bar in 1979. He is also a member of the bars of Maryland, the United States Supreme Court, the United States District Courts for the Southern and Eastern Districts of New York, and the Second Circuit Court of Appeals, among others.

  • Founding member of the Executive Board of the National Employment Lawyers Association (NELA) in 1985 and served on its Board for more than 11 years. 

  • Founded the New York affiliate of NELA in 1986 and was its president for more than 15 years.

  • Founding Governor of the College of Labor and Employment Lawyers (1996-2003).

  • Served as Chair of the Section of Labor and Employment Law of the American Bar Association (2015-2016), served on the Section's Council (2000-2008), is liaison to the Section's Federal Labor Standards Legislation Committee, was co-chair of the various Administrative Committees, was Liaison for the Section's Committees on Employment Rights and Responsibilities and Pro Bono Work.

  • Employee co-chair of the both the International Labor & Employment Law Committee and the Employment Rights and Responsibilities Committee.

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Speaking Engagements

Mr. Outten has lectured extensively on employment law, especially on negotiation, mediation, and arbitration of employment disputes, on employment and severance agreements, and on retaliation and whistleblower claims.

2018

  • Moderator: "The Arbitration Dichotomy: Advances Outside the US while Challenges to Its Use in the US Continue," American Bar Association, Section of Labor & Employment Law, Annual Conference of the International Labor & Employment Lawyers Committee, Milan, Italy
  • Speaker: "Employees’ Lawyer’s Perspective: Resolving Highly Emotional Workplace Complaints and Claims," Practising Law Institute, Program on Psychological Issues in the Workplace, New York, NY

2017

  • Panelist: "Representing Highly Compensated Employees," Maryland Employment Lawyers Association, Annual Conference, Greenbelt, MD
  • Speaker, Moderator: "Not Just Plain Vanilla: Creative Settlement Terms in Employment Disputes," National Employment Lawyers Association, NELA Annual Convention, San Antonio, TX

2016

  • Moderator: "Deferred Compensation Issues in Negotiating Severance Agreements," National Employment Lawyers Association, NELA 2016 Annual Convention, Los Angeles, CA

2015

  • Moderator: "Pay and Leave," U.K. Employment Lawyer Association and ABA Labor & Employment Law Section International Committee, Fourth TransAtlantic Conference, London, England
  • Panelist: "The New Restatement of Employment Law," National Employment Lawyers Association, NELA Convention, New York, New York
  • Moderator: "Independent Contractors and Interns, “Zero-Hours” Contracts and Just-in-Time Scheduling: Organizing, Representing and Bargaining with Precarious Workers," American Bar Association Section of Labor & Employment Law, International Labor and Employment Law Committee Midyear Meeting, Barcelona, Spain
  • Panelist: "Navigating International Labor and Employment Issues in Corporate Transactions: Know the Issues; Consult the Experts," Law Education Institute, National CLE Conference, Vail, CO
  • Keynote Speaker: "Employment Lawyer as Problem Solver," Connecticut Bar Association, Labor & Employment Law Section, Hartford, CT

2014

  • Moderator: "Cutting Edge Issues in EU and NA Discrimination Laws," American Bar Association Section of Labor & Employment Law, International Labor & Employment Law Committee Midyear Meeting, Tel Aviv, Israel
  • Speaker: "The New Restatement of Employment Law: Its Strengths, Weaknesses & Ambiguities," National Employment Lawyers Association, 2014 Annual Convention: Blazing the Trail, Courage, Challenge, Change, Boston, MA
  • Speaker: "International Issues to be Aware Of," Law Education Institute, National CLE Conference, Vail, CO
  • "Negotiating Non-Monetary Terms—Employment Settlement Agreements," American Bar Association Labor & Employment Law Section, ABA Labor & Employment Law Section, Webinar

2013

  • Panelist: "Compensation and Discrimination/Equal Pay Issues in the Financial Services Sector," ELA, Third Transatlantic Conference, London, England
  • Moderator: "Plenary Session—Case Study addressing the following issues: Cross-Border US/UK fact pattern raising potential sexual harassment, performance, pregnancy/maternity leave & promotion issues; Strategic concerns on how best to manage litigation in US/UK, inclu," ELA, Third Transatlantic Conference, London, England
  • Speaker: "Let’s Make a Deal: Settlement Agreements A-Z," American Bar Association Section of Labor & Employment Law, Employment Rights and Responsibilities Committee, Midwinter Meeting, Miami Beach, FL
  • Panelist: "Hofstra Labor & Employment Law Journal 30th Anniversary Reception and Symposium," Hofstra, Arbitration and Mediation in Labor and Employment Law, New York, NY

2012

  • Panelist: "2011 A Year in Review, HR’s Biggest Challenges," Five O’Clock Club, New York, NY
  • Panelist: "The Lawsuit Seesaw: U.S. Discrimination vs. European Unfair Dismissal," Law Education Institute, Aspen, CO
  • Co-Presenter: "Negotiating Executive Severance Agreements," American Bar Association Premiere, Webinar
  • Panelist: "Arbitration and Mediation in labor & Employment Law," Hofstra, Hofstra Labor & Employment Law Journal’s 30th Anniversary Symposium, New York, NY

2011

  • Panelist: "Employment Agreements for Employees and Independent Contractors," ABA Labor & Employment Section, Annual CLE Conference, Seattle, WA
  • Lecturer: "Taxable Damages in Employment Cases," Non-Qualified and Attorney Fee Structures Conference
  • Moderator: "A Comparison of How Litigation is Handled Outside the U.S.," ABA, Labor & Employment Law Section, Employment Rights & Responsibilities Committee, Midwinter Conference
  • Moderator: "Alternative Fee Arrangements from Different Countries," ABA, Labor & Employment Law Section, Employment Rights & Responsibilities Committee, Midwinter Conference
  • Panelist: "A Pragmatic Approach to Mediation by Litigators for Litigators," New York City Bar Association, New York, NY
  • Panelist: "Law Firm Partnership Issues," NELA/NY Conference, NELA/NY Conference
  • Moderator: "Employment Agreements 101," NELA, Annual Convention
  • Moderator: "Employment Discrimination Laws: EU and US Perspectives," ABA Labor & Employment Law Section, International Labor & Employment Law Committee

2010

  • Lecturer: "Strategies for Meeting Diversity Goals in the Legal Profession," ABA, Labor & Employment Law Section, Employment Rights & Responsibilities Committee
  • Lecturer: "Samuel M. Kaynard Award for Excellence in the Fields of Labor & Employment Law: “Moving Towards the Future,”," Hofstra Law School
  • Lecturer: "Arbitration Under Attack: The Future of ADR," CPR Institute for Conflict Prevention & Resolution, 2010 Annual Meeting – Global ADR: The New Reality
  • Lecturer: "We Don’t Do Things That Way Here Stranger: International Practice Gotcha’s," Law Education Institute – Labor & Employment Law
  • Lecturer: "Supreme Court Developments in Employment Law in 2010: What You Need to Know in This Changing Landscape," New York City Bar Association
  • Lecturer: "Skills for Alternative Dispute Resolution," Practising Law Institute, Bridge-The-Gap II for Newly Admitted Attorneys
  • Lecturer: "Cross-Border Labor Importation and Migration: Implications for U.S. and E.U. Lawyers," ABA, Labor & Employment Law Section, International Labor & Employment Law Committee

2009

  • Lecturer: "The Role of Courts in Policing Professionalism," ABA Labor & Employment Section, Committee on Ethics and Professionalism
  • Lecturer: "Preparing for Mediation – Tips for the Advocate and Tips for the Mediator and Mandatory Arbitration – Pyett and Beyond," New York State Bar Association, Labor & Employment Law Section Fall Meeting
  • Lecturer: "Workplace Issues in the Current Economic Climate and the Role of Dispute Resolution," Association of Conflict Resolution of Greater New York
  • Lecturer: "Executive Employment Agreements & Executive Compensation," National Employment Lawyers Association/New York, New York, NY
  • Lecturer: "Protecting Your Rights as an Administrator Under the Law," Association of Legal Administrators
  • Lecturer: "Why Diversity Matters: Not Just Talking But 'Walking the Walk'," National Employment Lawyers Association, Annual Convention
  • Lecturer: "Dealing with the International Employee," Colorado Bar Association, National CLE Conference
  • Lecturer: "The Employment ‘Pre-Nuptial’ – Counsel Go Head to Head Over Non-Competition, Confidentiality and other Restrictions on Employees," Upper Midwest Employment Law Institute, Saint Paul, MN
  • Lecturer: "Mediation Advocacy: the Perspective of Employee's Counsel," National Employment Lawyers Association, New Jersey
  • Lecturer: "Crucial Strategies in Negotiating Employment and Separation Agreements," ABA Labor & Employment Section, Annual CLE Conference
  • Lecturer: "The Divorce Wars – When the Departing Employee Leaves with Trade Secrets, Employees, and other Valuable Corporate Assets," Upper Midwest Employment Law Institute, Saint Paul, MN
  • Lecturer: "Litigation Strategy: Plaintiffs’ Counsel, A Moderated Discussion," Practising Law Institute, 38th Annual Institute on Employment Law
  • Co-Producer & Discussion Leader: "UK Employment Lawyers Association," Labor & Employment Law Conference, London, England
  • Lecturer: "Regulating Executive Compensation," New York University School of Law, New York, NY
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Publications & Articles

The Employment Lawyer As Problem Solver

Wayne N. Outten, Managing Partner at Outten & Golden LLP, discusses the role of an employment lawyer as a problem solver. NELA Nite, June 8, 2016

The Employment Lawyer as Problem-Solver

Wayne N. Outten, NELA Nite, June 8, 2016

ADR in Employment Law

Wayne N. Outten and Laurence S. Moy; Senior Editor, Arthur Feliu, Editor-in-Chief, Bloomberg BNA Books, 2015

New Laws Expand Whistleblower Protections

Wayne N. Outten and Cara E. Greene, Employment Law Strategist, November 2011.

Representing the Executive

Wayne N. Outten, Chapter 16 in Executive Compensation, BNA Books, 2002 and 2011. 

Jumping Ship (and Taking the Crew): Can Law Firm Partners Solicit Their Firm’s Employees?

Wayne N. Outten and Cara E. Greene, Law Firm Partnership & Benefits Report, June 2007

Counseling Multinational Employees: Their Rights And Remedies Under US Law

This article by Outten & Golden partner Wendi S. Lazar sketches a map through the convoluted terrain of representing multinational and expatriate employees. Simply determining whether there may be a cause of action can require careful parsing of the laws of multiple jurisdictions and the employer's corporate structure as well as the usual inquiries into the employee's and employer's conduct and relevant contracts. Using a case study of one employee's circumstances and potential legal claims, Lazar outlines the important issues an attorney must resolve in order to best counsel a client. (2006, with significant contributions from Wayne Outten and Anjana Samant.)

Working with the Equal Employment Opportunity Commission

Wayne N. Outten and Piper Hoffman, Employee Rights and Employment Policy Journal, Vol 10, No. 2, Winter 2006.

Clients: To Whom Do They Belong?

Employment attorney, Wayne N. Outten, with Douglas C. James, discusses the ethical obligations of law firms and departing partners and how they must handle this situation in a way that is consistent with the principle of client choice. This article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, September 2004. For more information, visit www.ljnonline.com.

The answer is, nobody.

When a partner leaves a law firm, the parties have to allocate various partnership rights, assets, and other interests. They may allocate most of these interests in any way that they choose. They may not, however, allocate clients, perhaps the most valuable of partnership “assets.” The client alone decides whether to remain a client of the firm, to leave with the departing partner, or to choose another attorney. Law firms and departing partners have an ethical obligation to handle these situations in a way that is consistent with the principle of client choice.

Mediation Advocacy: An Employees' Attorney Perspective

Employment attorney Wayne N. Outten, Georgetown University Law Center, CLE, Employment Law and Litigation Institute: Legal Trends and Practice Strategies, Thursday-Friday, April 15-16, 2004, Washington, DC.

This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.

The opportunities are legion for problems and disputes to arise out of the employment relationship – during and after the period of employment, and involving non-legal as well as legal issues. Counsel for employees should, of course, be familiar with the legal issues that may arise and with the traditional legal procedures for addressing such legal issues. But familiarity with such legal matters is not enough. Counsel for employees should also be familiar with tactics, strategies, and methods for solving legal and non-legal problems and resolving disputes that do not necessarily depend on the assertion of legal rights and that do not necessarily employ formal legal procedures. This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.

Can Law Firm Partners Sue The Firm For Employment Discrimination?

Employment attorneys Wayne Outten and Justin Swartz. This article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, February 2004. For more information, visit www.ljnonline.com.

This article will first discuss reasons that law firms, especially large firms, are susceptible to discrimination suits by their partners. Next, it will explain two threshold requirements for law firm partners to sue their firms for employment discrimination. Both of these requirements turn on whether certain partners are deemed employees. Third, the article will discuss the Supreme Court’s Clackamas decision and lower court decisions that preceded Clackamas but used similar analyses. Finally, it will note that,under some federal and state laws, law firms are vulnerable even if their partners are not deemed employees.Discussion of: reasons law firms may be susceptible to discrimination suits by their partners; two required thresholds for filing such a suit; Supreme Court's Clackamas decision; and finally a note on why some law firms are vulnerable even if their partners are not deemed employees.

Developments In Harassment Law: Update For 2002-2003

Wayne N. Outten and Piper Hoffman, the 20th Annual Upper MidWest Employment Law Institute, May 28-29, 2003, St. Paul, MN.

The standard for employer liability depends on whether the harasser was a co-worker or a supervisor of the victim. If the former, the employer is liable only if it was negligent; if the latter, the employer is strictly liable, subject to the affirmative defenses discussed [within].

The Supreme Court observed that Title VII was enacted not only to provide redress for unlawful discrimination, but also to prevent such discrimination. The goal of preventing discrimination would be promoted, the Court held, by imposing on employers strict liability for the conduct of their supervisors under certain circumstances, because, as between employers and employees, the employers are better able to prevent discrimination by such supervisors. Specifically, the Court held that an employer is strictly liable for a supervisor’s sexually harassing behavior whenever the supervisor is the employer’s “alter ego” or the supervisor has taken a “tangible employment action” against the employee; examples of such actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth at 761. The Court found that the occurrence of a tangible employment action justified holding an employer liable for its supervisor’s harassment because the action could not have been taken absent the agency relation.

When Your Employer Thinks You Acted Disloyally: The Guarantees And Uncertainties Of Retaliation Law

Wayne N. Outten, Scott Moss and Piper Hoffman, April 1, 2003

Extensive statutory and case law prohibits various forms of employer retaliation against employees who engage in legally proper, necessary, or desirable activities. The law on retaliation is not unified, however; as discussed in Part I, it is spread among many federal and state statutes typically organized by subject matter – e.g., retaliation against opposition to discrimination, retaliation against government employee whistleblowing, etc. Many basic principles of retaliation law are well-established, as the survey of federal law in Part I elaborates. Numerous issues in retaliation law remain unresolved, however, with different courts openly disagreeing on the limits of employee protections, as Part II discusses.

Employment Agreements - Negotiating Employment Agreements

Excerpt from "Chapter 16. Representing the Executive" by Wayne N. Outten, appearing in Executive Compensation, editors Yale D. Tauber and Donald R. Levy, copyright © 2003 The Bureau of National Affairs, Inc. Reprinted by permission. 

During the 1990s, formal written employment agreements became increasingly common, especially for employees, technical experts, finance experts, and top sales and marketing people. By 1999, according to a survey of employee search firms, employment agreements were included in 45% of employee placements. Given the employment-at-will rule in the United States, an employment agreement containing such terms as a fixed term of employment, “good cause” for termination, notice of termination, and/or minimum severance pay is generally more desirable for employees than for employers. Even so, employers sometimes want employment agreements to serve their interests, such as imposing restrictive covenants limiting an employee’s ability to compete or to solicit clients or employees.

In a tight labor market, when employers compete for top talent, employees have more leverage to insist on firm, written commitments regarding compensation, job security, severance pay, and other terms of employment. This is especially true when an employer is trying to lure an employee away from a secure or lucrative position or to relocate to a new area. Moreover, the compensation packages for many employees include not only cash and stock bonuses, but also equity grants (e.g., restricted stock and stock options), deferred compensation, and other interests that vest over time. An employment agreement can ensure and secure those interests during and after the employment.

Before addressing the provisions of employment agreements, the role of the attorney representing the employee should be addressed. Although an employee might obtain a fair employment agreement without an attorney, the odds are against it. Invariably, the employment agreement will be drafted by the employer’s counsel, typically using a model that the attorney has used for other employers (if the attorney is an outside counsel) or has used for other employees of the employer. In any event, that document is rarely balanced or sufficiently protective of the employee’s interests. Thus, the employee’s attorney can make a big difference in the negotiation and drafting of the terms and language of the agreement. A qualified attorney can almost always help an employee get a better, stronger agreement than would otherwise be the case.

Handling Disputes Involving Current Employees

Excerpt from "Chapter 16. Representing the Executive" by Wayne N. Outten, appearing in Executive Compensation, editors Yale D. Tauber and Donald R. Levy, copyright © 2003 The Bureau of National Affairs, Inc. Reprinted by permission.

Representing employees who are involved in disputes with their employers while still employed raises special practical, tactical, procedural, ethical, and legal issues. Most of those issues complicate matters for the employee and the employee’s counsel, but some of them are beneficial. Some of those issues arise only in litigated disputes, but most of them arise in disputes generally, whether or not they are the subject of litigation.

Representing employees who are involved in disputes with their employers while still employed. Employment attorney Wayne N. Outten.

Mediation Of Employment Disputes

Excerpt from "Chapter 16. Representing the Executive" by Wayne N. Outten, appearing in Executive Compensation, editors Yale D. Tauber and Donald R. Levy, copyright © 2003 The Bureau of National Affairs, Inc. Reprinted by permission.

Mediation of employment disputes: A breakdown of benefits, considerations and the process by New York employment attorney Wayne N. Outten.

An attorney representing employees—or employers—should consciously consider mediation in virtually every significant employment dispute that cannot be resolved through direct negotiations.

Familiar surveys have shown consistently that a very high percentage of civil lawsuits settle before judgment, typically more than 90%. And countless disputes settle before they ever mature into lawsuits. Therefore, it is highly likely that any particular dispute will settle at some point; the question usually is, when? Mediation presents the opportunity to ascertain whether such disputes can be settled earlier in the process than may otherwise be the case.

The success rate for mediation depends on numerous variables, such as the ability and techniques of the mediator and the manner in which the mediation was initiated. Empirical evidence suggests that the success rate is much higher when the parties initiate and pay for the mediation, as compared to when the parties are pressured into forum- annexed mediation by a judge or someone else. Reports indicate that court-annexed and agency-annexed mediation programs have success rates in the 50%-60% range, whereas private mediations succeed 80%-90% of the time. (For these purposes, “success” is defined as a settlement satisfactory to the parties.) Sometimes, even when a mediation session fails to result in a settlement at that time, the session may lay the groundwork for a subsequent settlement.

Negotiations And ADR In Employment Disputes: An Employees' Attorney's Perspective

This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel. Employment attorney, Wayne N. Outten. Excerpt from "Chapter 16. Representing the Executive" by Wayne N. Outten, appearing in Executive Compensation, editors Yale D. Tauber and Donald R. Levy, copyright © 2003 The Bureau of National Affairs, Inc. Reprinted by permission.

The opportunities are legion for problems and disputes to arise out of the employment relationship – during and after the period of employment, and involving non-legal as well as legal issues. Counsel for employees should, of course, be familiar with the legal issues that may arise and with the traditional legal procedures for addressing such legal issues. But familiarity with such legal matters is not enough. Counsel for employees should also be familiar with tactics, strategies, and methods for solving legal and non-legal problems and resolving disputes that do not necessarily depend on the assertion of legal rights and that do not necessarily employ formal legal procedures. This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.

How Law Firms Can Avoid Retaliation Claims

Wayne N. Outten & Piper Hoffman, Law Firm Partnership & Benefits Report, October 2002

Negotiating ADR Agreements: An Employees' Lawyer's Perspective

Wayne N. Outten, chapter in How ADR Works, BNA Books, 2002

Negotiating Settlement Agreements: An Employees' Lawyer's Perspective

Wayne N. Outten, chapter in How ADR Works, BNA Books, 2002. This section of the chapter addresses negotiating and drafting settlement agreements for employment disputes. Settlements may come from direct negotiations between the parties (or their respective counsel), from mediation, or from negotiations before or during arbitration proceedings. In all of these contexts, many substantive issues, and thus many negotiation and drafting issues will be similar. When the context presents special issues, they will be specifically addressed.

Negotiating Settlement Agreements: An Employees' Lawyer's Perspective 1

Wayne N. Outten, chapter in How ADR Works, BNA Books, 2002.

Employment Agreements - Change Of Control Agreements

Authored by Wayne N. Outten, this article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, April 10, 2001. For more information, visit www.ljnonline.com.

In this era of mergers and acquisitions, many companies have implemented so-called change of control arrangements. This article outlines why such arrangements are implemented, how they are structured, and certain tax issues triggered by them.

In short, change of control arrangements provide that designated employees will receive substantial compensation and benefits if they lose their jobs under certain circumstances after control of their employer has changed hands.

Non-Compete Agreements: Emerging Issues From The Perspective Of Employee's Counsel

Co-authored by Wayne N. Outten, Anne Golden, and Nantiya Ruan, 2001.

Today more than ever, trained employees are valued by employers who want to do everything in their power to keep them from leaving and taking their skills and knowledge with them. Undoubtedly, this is due in part to our nation's unemployment rate reaching a thirty-year low. Add the current business environment of increased mobility, decreased loyalty, and the tremendous amount of capital resources spent in creating intellectual property, and companies are increasingly requiring key employees to sign harsh non-compete agreements to discourage employee defection or "corporate raiding."

The law still favors free mobility of employees. But along with an increased number of employers requiring employees to sign non-competition agreements comes an increased number of suits to enforce these restrictive covenants. Consequently, the body of law governing this area has been changing. This outline will give practical advice to employee advocates on ways to best protect their clients' interests when confronted with non-competition agreements and will examine the emerging trends in this narrow, but increasingly pertinent, area of employment law.

Determining the Financial Rights of a Departing Partner

Wayne N. Outten & Sean Farhang, Law Firm Partnership and Benefits Report, December 2000 and January 2001.

Marshalling the Evidence in Employment Discrimination Cases: A Perspective from the Plaintiff’s Bar

Co-authored by Wayne Outten, Parisis Filippatos, Scott Moss and Nantiya Ruan, 657 PLI/Lit. 101 (2001)

Overview of Workplace Claims in New York: Perspective of Employees’ Counsel

Co-authored by Wayne Outten, Anne Golden, Parisis Filippatos, Scott Moss & Nantiya Ruan, 662 PLI/Lit. 1179 (2001)

Practice Pointers on Opposing the Affirmative Defense that the Employer Took Reasonable Steps to Prevent Sexual Harassment: Perspective of a Plaintiff's Attorney

Co-authored with Wayne Outten, Scott Moss & Nantiya Ruan, 656 PLI/Lit. 187 (2001)

What To Do If You Are Fired

Employment lawyer Wayne N. Outten outlines basic steps on what to do if you are fired.  Outten & Golden"s attorneys represent employees in all aspects of employment law.

Listen and ask questions.  Try to ascertain why you were fired and who was involved in the decision. This information can affect any negotiations or claims that follow. Concede positions only to the extent necessary and appropriate. Also, promptly write down what you were told.

Don’t agree to or sign anything. If a severance package is mentioned, ask what it includes and how it applies to you. But don’t accept what is offered and don’t try to negotiate the terms right away. If you are given a written severance agreement, don’t sign it on the spot. (It is unlikely your employer will ask you to do so.)

Review applicable benefit, compensation, and severance plans, policies, and statements. If you don’t have everything, ask. Ascertain the effect of your termination on each of these. For example, you may be able to continue or convert medical, disability, or life insurance; you may have a limited time (maybe only 30 days) to exercise stock options; or you may be entitled to some unused leave time. Identify the dates for vesting of any unvested benefits or compensation.

Evaluate any severance offered and consider asking for enhancements. Determine whether the offer is fair and reasonable. After reviewing your plans, etc., consider what enhancements might be appropriate, such as getting more severance pay, bridging to a vesting date, or seeking a full or partial bonus for the year. It doesn't hurt to ask. Consider who may have the authority and inclination to help you and what “buttons” you can push to get a better package, such as fairness, guilt, friendship, or fear of legal claims or adverse publicity.

Don’t resign. Your employer may allow you to resign instead of being fired; don’t agree to such an arrangement without careful consideration and advice. The circumstances under which you leave your job can affect any potential claims you have, especially under anti-discrimination statutes, and could prevent you from collecting unemployment if not handled properly. On the other hand, properly handled, a "resignation" can be beneficial.

Get started on your next job. If circumstances permit, ask your employer for a written reference or, at least, a statement of its policy for responding to inquiries from prospective employers. Consider whether you could benefit from professional outplacement assistance paid for by your employer. At a minimum, your employer might provide a desk, telephone, voicemail, and/or e-mail while you look for a job.

Get help. Ask the HR department for any information you need. Get objective advice. Talk to family and friends, especially those having experience with such situations. Consider consulting with a lawyer with experience representing employees. An attorney can help evaluate any legal claims and develop a plan of action; this might include coaching you on who to go to negotiate a better package and what to ask for. (In NY, you could call the National Employment Lawyers Association Referral Service, (212) 819-9450.)

The Financial Rights Of A Departing Law Partner

What are the departing partner’s financial entitlements with respect to firm assets? We turn to that question in this article. Employment attorney Wayne N. Outten and Sean Farhang.

This article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, December 2000 and January 2001. For more information, visitwww.ljnonline.com.

We recently contributed an article to this newsletter that addressed when and how a law firm can expel a partner. Whether a partner is expelled or (as more commonly happens) withdraws from the partnership more-or-less voluntarily, the question arises, what are the departing partner’s financial entitlements with respect to firm assets? We turn to that question in this article.

When And How Can A Law Firm Expel A Partner?

Taking stock of the present state of the law on law partner expulsion. Employment attorney Wayne N. Outten.

This article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, September and October 2000. For more information, visitwww.ljnonline.com.

How secure are law partners in their positions when other partners want to expel them from the firm? Historically, the courts have seldom had to address that question. Beginning in the mid-1990s, however, the involuntary expulsion of law partners has been the subject of numerous lawsuits. Thus, the time is ripe to take stock of the present state of the law on law partner expulsion.

The law governing law partner expulsion has substantive and procedural components. The substantive component concerns the reasons for which a law firm may expel a partner, such as, for example, the type of conduct by a partner that might justify expulsion. The procedural component concerns the due process requirements, if any, that a firm must observe in expelling a partner, such as notice and a right to be heard.

Outten's Admonitions Or Top Ten Ways For Employers To Avoid Employee Lawsuits

A countdown of 10 tools and techniques for employers, by employment attorney Wayne N. Outten, Law Firm Partnership and Benefits Report, August 1999.

Negotiating the Severance Agreement from the Employee's Perspective

Wayne N. Outten, The Practical Litigator, January 1999

Ten Ways for Law Firm Management to Avoid Employee Lawsuits

Wayne N. Outten, Law Firm Partnership and Benefits Report, August 1999

Employment Issues For Multi-National Employers And Employees: Legal Restraints On Foreign Employers Doing Business In The United States

This outline examines the rights of employees in the United States who work for foreign employers. Wayne N. Outten and Jack A. Raisner. ABA ERR 1998 Annual Meeting Toronto, Ontario August 1-5, 1998.

As graphically illustrated by Chrysler Corp.'s merger into a new, German corporation, called DaimlerChrysler Aktiengesellschaft—the largest industrial merger of all time—today's transnational mega-mergers are increasing the number of domestic employees who work for foreign entities. With their transfer to foreign management, these employees are likely to find changes in the laws that protect them as employees. This outline examines the rights of employees in the United States who work for foreign employers.

New York Employment Complaints and Answers/FAST

Jack Raisner, Wayne N. Outten, West Pub., 1998

Extraterritorial Application of U.S. Laws: Anti-Discrimination

Wayne N. Outten & Jack Raisner, chapter in International Labor & Employment Laws, ABA/BNA Books, 1997.

"Glass-Ceiling" Lawsuits Threaten "Old Boy" Network

Wayne N. Outten & Jack Raisner, Law Firm Partnership and Benefits Report, October 1996.

Are Partners "Employees" Under Federal Employment Discrimination Law?

Wayne N. Outten & Jack Raisner, Law Firm Partnership and Benefits Report, September 1996

Pleadings

Wayne N. Outten & Jack A. Raisner, chapter in Employment Litigation in New York, West, 1996

The Rights of Employees and Union Members: The Basic ACLU Guide to the Rights of Employees and Union Members (An American Civil Liberties Union handbook)

Wayne N. Outten, Robert J. Rabin, Lisa R. Lipman, S. Ill. Univ. Press (1984 and 1994)

Cross-Examining a Defense Psychologist in a Sexual Harassment Case

Wayne N. Outten and Jack Raisner, The Practical Litigator, January 1993

Employee and Applicant Testing

Wayne N. Outten and Jack Raisner, chapter in Employee Rights Litigation: Pleading and Practice, NELA/Mathew Bender/Lexis, 1990

Privacy in the Employment Relationship

Wayne N. Outten & Alfred G. Feliu, chapter in Privacy Law and Practice, Matthew Bender/Lexis, 1987

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Awards & Recognition

  • Intercontinental Finance Magazine 2014-2015 ICFM 500 Leading Lawyers

  • Top 100 New York Super Lawyers: 2006-2014

  • Super Lawyers: 2006-2017

  • The International Who’s Who of Management Labour & Employment Lawyers 2011 (only employee-side attorney in U.S.)

  • 2011 Honoree, at Fifth Anniversary Celebration of A Better Balance

  • Award for Pro Bono Assistance, Legal Services NYC 2010

  • Best Lawyers’ 2010 Lawyer of the Year,  Labor and Employment Law – New York

  • Best Lawyers’ 2012 Lawyer of the Year,  Labor and Employment Law – New York

  • Best Lawyers in America (Recognized 32 consecutive years), listed since 1987

  • 2010 Public Interest Award of the Public Interest Law Student Association, CUNY School of Law

  • 2010 Samuel M. Kaynard Award for Excellence in the Field of Labor & Employment Law, Hofstra Law School

  • Distinguished Community Leader Award, CUNY School of Law, 2010

  • Partner in Justice Award, MFY Legal Services, Inc. 2010

  • The ALMO (Alumni of the Month), New York University School of Law, August 2009

  • Distinguished Alumnus, LeBow College of Business, Drexel University 2008

  • Lawdragon 500 Leading Litigators in America 2006

  • Lawdragon 500 Leading Lawyers in America 2005-2018

  • Lawdragon 500 Leading Plaintiff Employment Lawyers 2018

  • Lawdragon Legend 2015 (one of 50 in U.S.)

  • Award for Dedicated Service, National Employment Lawyers Association/New York Affiliate, 2001

  • Social Justice Leadership Award, The Ethical Humanist Society of Long Island, 2014

  • Award as Founding Leader (30th Anniversary), National Employment Lawyers Association 2015

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Profiles