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© 2016 Zuckerman Spaeder LLP

Employer’s Failure to Sign Agreement Torpedoes Its Motion to Compel Arbitration

A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations. What happens, however, when the parties forget some of the niceties of formalizing a written contract?

For one answer, consider the recent decision in the case of Shank v. Fiserv, Inc., in which the Eastern District of Pennsylvania addressed Fiserv’s motion to dismiss and compel arbitration at the outset of the case. Read More ›

Kagan’s Luis Dissent Suggests Way for Defendants to Strike Back

In our last post, we discussed the recent decision Luis v. United States, in which the Supreme Court held that innocent assets are out of the government’s reach prior to trial. Justice Elena Kagan’s short but notable dissent in Luis addressed the issue of whether the government should be able to reach a defendant’s assets at all, allegedly “tainted” or not, prior to conviction. Read More ›

Hands Off! Supreme Court Rules Defendants May Use Innocent Assets to Hire Lawyers

Every defendant is presumed innocent until proven guilty in a court of law. And the Sixth Amendment to the Constitution provides a defendant has the right to counsel of his or her own choosing. These rights are foundational to our criminal justice system.

However, prior to the Supreme Court’s decision yesterday in Luis v. United States, the government was able to undermine these basic rights. In cases involving conspiracy, healthcare fraud, and banking fraud, federal statutes allowed the government to seek a pretrial restraining order preventing defendants from using their innocently obtained assets to retain counsel. Read More ›

Five Things You Should Know about the EEOC’s Proposed Changes to the Employer Information Report

Employers with an eye to the regulatory horizon are aware that the Equal Employment Opportunity Commission (EEOC) has proposed expanding its annual Employer Information Report (EEO-1) to include data on employees’ pay.

The existing EEO-1 requires private employers with 100 or more employees to report the number of employees within 10 job categories by seven race and ethnicity categories, as well as by sex.

The proposed changes will further refine reporting to include employee counts as well as total hours worked by 12 pay bands. Read More ›

The Inbox – Dissing the Qualified

The U.S. Equal Employment Opportunity Commission scored a victory last week against PMT Corp., a Minnesota-based medical device and equipment manufacturer. According to the commission’s complaint filed nearly two years ago, PMT Corp. engaged in systematic discriminatory hiring practices by refusing to hire women and individuals over the age of 40 in violation of Title VII and the Age Discrimination in Employment Act. According to Law 360, PMT agreed to settle the suit for $1.02 million payable to a class of applicants and a former PMT Human Resources professional who brought the company’s hiring practices to the EEOC’s attention. Read More ›

Sleep On It: Employee’s Quick Response Hurts Termination Claim

When employees and employers are approaching the end of an employment relationship, they should consider their existing rights and how their conduct may impact those rights. A recent decision from the Minnesota Court of Appeals demonstrates how one hasty email can change everything.

Beginning on January 1, 2010, LifeSpan of Minnesota, Inc. employed the plaintiff in the case, Mark Sharockman, as its chief financial officer and executive vice president. Mr. Sharockman’s three-year employment agreement with LifeSpan provided, among other things, that he would receive annual pay increases that were at least equal to the average pay increases granted to the other two executive officers. Read More ›

How Does a Court Decide Whether an Employee's Whistleblowing Caused Termination?

In our last post, we discussed the case of Wiest v. Tyco, in which the Third Circuit held that an employer’s investigation of unrelated wrongdoing by an employee insulated it against the employee’s Sarbanes-Oxley whistleblower retaliation claim. Now, we tackle another piece of the Wiest decision: the court’s holding that Wiest’s protected activity did not contribute to the adverse action against him.

To establish a Sarbanes-Oxley claim, an employee must show that there was a causal connection between his or her whistleblowing and an adverse employment action. If the employee can’t show that link, then he or she can’t prevail. In the Wiest case, the court assumed that Wiest did in fact engage in protected whistleblowing activity. But it held that Wiest didn’t have evidence to show that the whistleblowing caused the employer to take action against him. Read More ›

Investigation Insulates Employer Against Sarbanes-Oxley Retaliation Claim

An employee who has blown the whistle on wrongdoing is not immune from discipline or termination simply because she has engaged in protected activity.

The Third Circuit’s recent decision in Wiest v. Tyco Electronics provides a good example of how an employer can terminate an employee without legal repercussions, even when it is undisputed that the employee was protected against whistleblower retaliation. Read More ›

Can Government Regulation Make It Impossible to Pay Severance?

When an executive has an employment agreement and his company doesn’t pay, the company might offer a number of excuses based on contract law. One of these contractual defenses is called “impossibility of performance.” Under this defense, when a party enters into a contract and circumstances later change such that the party can’t perform it, the party can be excused from performing.

The Virginia Supreme Court’s recent decision in Hampton Roads Bankshares, Inc. v. Harvard provides a timely example of how this defense actually works in practice. In the Hampton Roads case, the organization established a relationship with government regulators that affected its ability to pay severance. The court held that this change made it impossible for the company to perform an employment agreement, excusing performance. Read More ›

Top Issues in Executive Disputes to Watch in 2016

We’ve counted down our top posts from 2015, from American Apparel to Dr. Robert Schuller. Now, we look at the issues in executive disputes that are likely to draw the most attention in 2016. Read More ›