November 06, 2020

Employment Law

Employment Law

Recent Changes in Employee Ownership Laws: Employers May Not Own Their Inventions and Confidential Information
      Ronald B. Coolley, 41(1): 57–75 (Nov. 1985) This Article analyzes recent state legislation and judicial decisions affecting employment agreements and discusses items to consider in reviewing or revising current employment agreements and in drafting new employment agreements.

Ex parte Contact with Employees and Former Employees of a Corporate Adversary: Is It Ethical?
      Samuel R. Miller and Angelo J. Calfo, 42(4): 1053–73 (Aug. 1987)
Ex parte interviews with current and former employees of a corporate adversary in any matter have obvious tactical advantages, but they also raise complex ethical issues. These contacts risk the unfair elicitation by adverse counsel of confidential and privileged information and of statements admissible against the employer. This Article proposes restrictions on ex parte contacts with all current employees and certain high level former employees of a corporate adversary so that unfair ex parte contacts can be prevented.

The Organizational Sentencing Guidelines and the Employment At-Will Rule as Applied to In-House Counsel
      Joseph J. Fleischman, William J. Heller, and Mitchell A. Schley, 48(2): 611–32 (Feb. 1993)
Under the Organizational Sentencing Guidelines, in-house counsel have increased responsibilities which may necessitate disclosure of corporate wrongdoing. The in-house lawyer who advises disclosure increases the risk that he or she will be fired for disloyalty to management or to the corporation. The Guidelines may, however, articulate a new public-policy exception to the employment at-will rule, which, as applied to in-house lawyers, previously has foreclosed any cause of action.

Insurance Coverage for Wrongful Employment Practices Claims under Various Liability Policies
      Robert A. Machson and Joseph P. Monteleone, 49(2): 689–714 (Feb. 1994)
This Article surveys the various statutory and common law bases for employment practices liability, including the most recently enacted federal legislation. Coverage for the employment practices exposures under various types of liability insurance policies is also analyzed. The authors opine generally on recent developments and future trends and comment upon the newly introduced employment practices liability insurance forms.

Who's the Boss? The Globalization of U.S. Employment Law
      Michael Starr, 51(3): 635–52 (May 1996)
There are growing pressures to apply U.S. employment laws to the overseas operations of U.S. companies and to foreign businesses operating in the United States. In recent years, U.S. employment discrimination statutes have been revised to give them extraterritorial effect. Under new rules, personnel practices perfectly lawful in the host country can be illegal under U.S. employment discrimination laws if applied to U.S. citizens working overseas. Conversely, foreign companies operating in the United States that use "rotating" or "expatriate" staffing systems can be charged with national origin or other discrimination by displaced U.S. executives, and managerial rights ostensibly afforded foreign businesses under commerce and other treaties may not be a defense. Through numerous examples, this Article shows how personnel decisions can be insidiously affected by U.S. laws.

Protection From the Storm: Insurance Coverage for Employment Liability
      Lorelie S. Masters, 53(4): 1249–81 (Aug. 1998)
A company's insurance policies may provide needed protection for employment claims, including claims for employment discrimination and sexual harassment. This Article addresses issues that arise when a policyholder seeks protection under its general liability insurance policies. The Article also discusses "Employment Practices Liability Insurance."

2001 Mendes Hershman Student Writing Contest Prize Essay: Employee Privacy and Internet Monitoring: Balancing Workers' Rights and Dignity with Legitimate Management Interests
      Charles E. Frayer, 57(2): 857 (Feb. 2002)
At the dawn of the Internet age, employers face serious risks from employee misuse of this new communication medium. To reduce these risks, employers are turning to new monitoring technology enabling them to secretly view, record, and report literally everything employees do on their computers. Employee advocates assert that such surreptitious monitoring may infringe on employee privacy and other protected workplace rights. This Article addresses whether and when employers should be required to notify employees of monitoring practices. It gives examples of monitoring technology, reviews the history and current state of employee privacy in America, details relevant legislative efforts, discusses options suggested by leading thinkers, and recommends a balanced solution.

The Uncertain Efficacy of Executive Sessions Under the NYSE's Revised Listing Standards
     Robert V. Hale II, 61(4):1413-1426 (August 2006)
This article briefly explores key issues relating to the use of non-management executive sessions under Section 303A.03 of the NYSE's revised listing standards, including the authority of the SEC to enforce such a requirement, the status of board actions taken at such meetings, and whether such sessions may result in altering the principal roles of the board and management. In this respect, the Disney derivative litigation affords an opportunity to consider the use of executive sessions in relation to these issues, as well as the business judgment rule. Moreover, Disney raises the question whether mandatory non-management executive sessions might have created a different outcome under the circumstances in the case. The article concludes with a discussion of some practical considerations for attorneys and corporate secretaries in complying with the requirement.

Human Rights Protections in International Supply Chains - Protecting Workers and Managing Company Risk
      David V. Snyder and Susan A. Maslow, 73(4) 1093-1106 (Fall 2018)

Corporate Governance and Countervailing Power
      Brian R. Cheffins, 74(1) 1-52 (Winter 2018/2019)
The analysis of corporate governance has been a one-sided affair. The focus has been on “internal” accountability mechanisms, namely boards and shareholders. Each has become more effective since debates about corporate governance began in earnest in the 1970s but it is doubtful whether this process can continue. Correspondingly, it is an opportune time to expand the analysis of corporate governance. This article does so by focusing on three “external” accountability mechanisms that can operate as significant constraints on managerial discretion, namely governmental regulation of corporate activity, competitive pressure from rival firms, and organized labor. A unifying feature is that each was an element of a theory of “countervailing power” economist John Kenneth Galbraith developed in the 1950s with respect to corporations, an era when external accountability mechanisms did more than their internal counterparts to keep management in check.

Profound Change: The Evolution of ESG 
     A Discussion Among E. Christopher Johnson, Jr., John H. Stout, and Ashley C. Walter, 
75(4): 2567-2608 (Fall 2020)
This article has been abstracted from a series of telephone conference discussions among E. Christopher Johnson, Jr., John H. Stout, and Ashley C. Walter, each of whom has chaired committees of the Business Law Section and served as a member of the Council. The discussion focused on the evolution, meaning, and critical importance of the ideas, meanings, and principles embodied in the terms “sustainability,” “CSR” (corporate social responsibility), and ESG (environment, social, and governance). The discussion began before the novel coronavirus and the killing of George Floyd impacted our lives—our country’s and the world’s social, political, and economic well-being and order. The discussion and preparation of this article was heavily influenced by these events as they forced not only an examination of the history of the above terms but also a reflection on their application to, and relevance for, strategically charting a path forward.