Restrictive Covenants and Trade Secrets in Employment Law: An International Survey
Wendi S. Lazar and Katherine Blostein 2010 Contributor, treatise, published by BNA
Negotiating and Drafting Expatriate Employment Agreements
in International Labor & Employment Laws, Third Edition, Vol. 1B, ABA Section of Labor and Employment Law, published by BNA Books (2009) — Wendi S. Lazar and Gary R. Siniscalco
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.
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.
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.
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: 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.