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ICYMI: Our Social Media Posts This Week – June 4 - 10, 2017

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 6/4/17 we read See no evil, hear no evil: court finds employer not liable where no knowledge of non-compete. This is a case is not binding on us here in PA, but carries weight so pay attention. Two companies competed for a contract; Acclaim initially got it, but then Infosys got it. One Acclaim employee and 3 of its contractors went to Infosys to work on the contract. All 4 had non-compete agreements in place. Acclaim sued Infosys for tortious interference. Infosys was unaware of the non-compete agreements until it was sued. Further, the 4 individuals had told Infosys there was no non-compete. The trial court said that with no knowledge, the suit had to be dismissed as to Infosys. Acclaim appealed. The appellate court agreed – its reasoning is in the post.

TAKEAWAY: Always ask potential employees if there is any non-compete agreement or other restriction on their employment and make sure to protect information with existing (at some point to be former-) employees with a proper. Legal written agreement.

The post on Monday 6/5/17 noted a dentist's remarks to a pregnant employee propel case forward. Sims was a registered dental assistant. She alleged in her suit that she was demoted and thereafter discharged due to her pregnancy. She also included support – including that the owner made repeated offensive statements to her and other staff about her pregnancy as listed in the post. The court said if a jury believed the comments, they could be direct evidence that pregnancy was a factor in the discharge, so it denied the employer's motion to dismiss. The court also said these comments were not mere 'stray remarks" based on the factors in the post.

TAKEAWAY: Don't make stupid remarks to employees – and certainly not ones that are illegal and can come back to haunt you in the midst of what could be a costly lawsuit.

In the post on Tuesday 6/6/17 contained a 10-step plan to avoid workplace harassment claims. Don't want to end up like Fox News is now? Try these steps. (1) Prepare and disseminate a workplace harassment policy for all types of harassment. (2) Tell employees about the policy at time of hire, post it, and have employees acknowledge reading and understanding of the policy. (3) Include a feasible complaint procedure in the policy. The other seven tips are in the post.

TAKEAWAY: As with all policies, make sure the one on harassment is complete, legal (have an attorney write it or at least review it) and that you enforce it evenly.

The post on Wednesday 6/7/17 talked about 4 key takeaways: the problems with NDAs. You know what an NDA is, right? A non-disclosure agreement. It is often used in an attempt to keep employees (and former employees) from disclosing private or other company information confidential during the term of employment and for some period thereafter. So what problems might you encounter with an NDA? First, if you as the company don't take steps to try to keep the information confidential, a court will not enforce an NDA against an employee who has breached it. Next, if the state has a trade secrets act (which PA does), try to make sure the NDA language agrees with that of the trade secret act. The other 2 takeaways are in the post.

TAKEAWAY: NDAs can be good and give your company protection – but they are still legal documents and you should work with an attorney to make sure they are done right to give you the protection you want.

In the post on Thursday 6/8/17 there was a warning to employers: Beware $750,000 damages for failure to advise disabled employee of life insurance conversion process. So what happened? Dr. Erwood was a neurosurgeon and participated in the basic and supplemental life insurance programs of his health system employer. He became eligible for long-term disability. He and his wife asked the employer about his benefits and whether coverage would remain the same at the time he went on long-term disability. The employer did not mention conversion and the doctor and his wife thought all would remain the same. When the employer eventually sent them an FMLA packet, it lacked information about the conversion – even where to get the form and when it was due. Dr. Erwood died and his spouse submitted the death benefit claim form. The insurer denied the claim on the basis that he was not employed at the time of death and had not converted his policy. The court looked at the case as one against an ERISA fiduciary (the analysis is in the post) and held the employer liable for the full amount of the insurance benefit, $750,000. Ouch.

TAKEAWAY: Make sure you know what information you have to give to employees and when and how to give it. Don't be careless or you could end up with a huge liability.

The post on Friday 6/9/17 told us the NLRB finds "no loitering" policy unlawful. And yes you care about this – because as we've said over and over again, the NLRB has authority over even non-union employers in cases of certain employee rights. Here the Board was looking at a restaurant's policy attempting to control off-duty access to its property. The employees, on their own time, were passing out handbills promoting the union and their position on wages at the restaurant's entrance. They did not try to stop customers from entering or exiting. An assistant manager told them to go to a public sidewalk. They thought if they did not move, they would be disciplined. They also got a text of the policy (as in the post). The Board's ruling is detailed in the post and is a good outline for employers.

TAKEAWAY: Make sure any no-loitering policies have a legitimate business purpose, defines loitering, and does not try to chill employees' protected activities (or has an exception for that type of action). Have an employment law attorney review your policy.

Finally, in the post yesterday 6/10/17, we learned a judge rules in employment and gender discrimination case – discovery is not limitless. This is good news for employers. The suit at issue was filed alleging discharge and discrimination based on gender. Elgin FCU, the employer, notified the plaintiff that it would subpoena her current employer. She did not object. She later told Elgin not to contact her current employer, but the subpoena had already been served. She asked the court to issue an injunction because the information requested was too broad and irrelevant; Elgin's response is in the post. The court limited the information to be produced.

TAKEAWAY: Discovery has a purpose, but it is not to harass the other side or cause them a great expense in responding to irrelevant requests. Be careful.

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