Articles

Labor & Employment

Cross-Border Sexual Harassment Claims and Investigations

Workplace investigations are not new. Employers frequently investigate allegations of sexual harassment or other wrongdoing in order to determine the relevant facts and, if necessary, take remedial action to correct the problematic conduct. What is new, however, is the increase in international criminal and civil charges, and allegations of crossborder misconduct. In the wake of the #MeToo movement, multinational corporations increasingly must focus on the challenges of cross-border workplace investigations and conflicts of laws. The need to conduct multiple investigations in different jurisdictions can overwhelm an HR department and indeed their counsel.

Labor & Employment

Making Physical and Virtual Sexual Harassment Illegitimate: The US #MeToo Movement and the Israeli Prevention Act

This paper argues that more specific legislation that addresses the prevention of sexual harassment with a broad, up-to-date, theoretically based and preventive perspective would be more accessible, understandable, and ultimately enforceable beyond the workplace. This adjustment may lead to a better level of enforcement that will break the victims’ silence about the harassments.

Labor & Employment

Offensive, Non-Mutual Collateral Estoppel in Arbitration

The Supreme Court has held, in case after case, that Congress envisioned a regime of bilateral arbitration when it enacted the Federal Arbitration Act (FAA) in 1927, and that arbitration’s principal attributes—speed, flexibility, and economy—are not realized in class or collective proceedings, even where the underlying statutory rights are commonly enforced in court through multi-party litigation. The Court’s decision in Epic Systems Corp. v. Lewis, holding that class action waivers in employment agreements are valid and enforceable, will undoubtedly send claimants with similar, if not identical, claims to individual arbitration proceedings, absent specific agreement by the parties to employ class or collective procedures in arbitration.

Labor & Employment

Liquidated Damages Clauses in Employment Agreements

If you practice in the field of employment law, you know that employers across a wide range of industries are increasingly resorting to measures designed to protect the company from damages flowing from the departure of employees. Non-compete agreements, which prohibit a departing employee from working for a competitor, are common. So are confidentiality clauses or non-disclosure agreements that require departing employees to return all company proprietary and confidential information and that prohibit them from using such information in future employment. Arbitration agreements, which force almost all employment disputes into private dispute resolution, are also increasingly common and keep many of these issues outside of the public eye and removed from the public discourse.

Labor & Employment

Restrictions on Employee Change of Jobs: Antitrust Challenges to “Non-Compete” and “No-Poach” Clauses

Agreements among competing employers related to terms of employment can raise meaningful antitrust risks if they are not tethered to an efficiency enhancing business transaction (like a sale of a business or a joint venture) and result in firms pulling “competitive punches” when it comes to the hiring and compensation of current and/ or prospective employees. Similarly, exchanges of competitively sensitive information among employers can create risks of a potential anticompetitive agreement being inferred to exist among competing firms. In recent years, the landscape of private and public antitrust enforcement has become increasingly aggressive in scrutinizing employment practices across various industries. This paper explores the trends in civil and (now) potentially criminal antitrust enforcement in the employment area.

Labor & Employment

Public Sector Unions Can Survive Janus

Dress rehearsals are always useful to prepare an ensemble to go live. In the case of public sector labor, the “near miss” presented by the Supreme Court’s consideration of Friedrichs v. California Teachers Ass’n, was a loud and clear wakeup call that unions and public employers needed to be better prepared for the possibility that the Court would take a second look at mandatory agency fees in the public sector. 1 A short two years later, in Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court rendered the most sweeping national change to the landscape of public sector labor relations in decades.

Labor & Employment

How the NFL “Protects” Cheerleaders with Discriminatory Policies

Jacalyn Bailey Davis is a former cheerleader for the New Orleans Saints (hereafter the Saints or the Team), a National Football League (NFL) team. Davis alleges the Saints fired her after she posted a picture to her private Instagram account of herself wearing a lacey lingerie one-piece outfit. The outfit was a black body suit which had flowers strategically positioned over her breasts. Before she was fired, the Saints also accused Davis of attending the same party as an NFL football player and of receiving messages from NFL players on Instagram.