The Employment Law Group

Lawyer Monthly Names The Employment Law Group® its 2011 Labor & Employment Law Firm of the Year

Thursday, December 1st, 2011 | The Employment Law Group | No Comments

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Corporate Counselor Publishes Article by R. Scott Oswald Describing Common Mistakes Employers Make that Lead to Litigation

Thursday, November 10th, 2011 | Executive Compensation, The Employment Law Group | No Comments

Corporate Counselor published an article written by R. Scott Oswald, Managing Principal at The Employment Law Group ® law firm, titled “Common Mistakes That Encourage Employees to Seek Legal Advice.” The article describes the nine “most common, yet avoidable, mistakes that can leave a company’s current and former employees disillusioned and cause them to seek out outside legal advice.”

Here are the common but avoidable mistakes:

  1. Failing To Provide COBRA Notices: The Consolidated Omnibus Budge Reconciliation Act of 1985 (COBRA) requires covered employers to permit qualified employees to purchase health care coverage at group rates temporarily. Covered employers must provide notice to qualified beneficiaries of their right to purchase COBRA coverage within 30 days of the occurrence of a qualifying event. . . .  When employers fail to provide their employees with a COBRA notice in a timely fashion, employees become concerned and seek legal assistance in obtaining the continuation of their benefits.
  2. Failing To Compensate Employee Wage Due: An employer’s failure to pay the employee’s outstanding wages and/or vacation time, to the extent required, in a prompt manner often prompts an employee to seek legal assistance in obtaining the compensation owed to them.
  3. Ignoring Employee Complaints: If an employer establishes a protocol for handling its employee complaints and follows its protocol, an employer is more likely to avoid a finding of discrimination and to avoid the imposition of punitive damages. Frequently, employees simply wish to have their complaints acknowledged.
  4. Disregarding Employee Discipline Protocols: Employees feel wronged when employers do not follow their own written protocols relating to discipline of employees. Employers could even revitalize problem employees by issuing detailed PIPs that clearly lay out their expectations for their employees’ conduct and the specific actions that employees may take to meet those expectations.
  5. Delaying Response To Accommodation Request: Once an employer learns that an employee requires an accommodation to continue performing his or her job, the employer must engage in “an interactive process with the employee to identify and implement appropriate reasonable accommodations.”
  6. Terminating An Employee On FMLA Leave: An employer’s termination of an employee who is currently using FMLA leave can be direct evidence of FMLA retaliation…. If an employer finds that it must terminate an employee who is out on FMLA leave, it should ensure that it has an independently confirmable legitimate business reason for terminating that employee. Further, the employer should be able to demonstrate that its legitimate business reason does not in any way relate to the employee’s use of FMLA leave, or the circumstances surrounding that employee’s use of FMLA leave.
  7. Providing Inadequate Notice of Terminations: If an employee learns of his termination through a third party or though the employer’s work schedule (i.e., the employee is not scheduled to work), an employee is more likely to seek legal advice regarding his employment rights. When an employer decides to terminate an employee, it should provide a terminated employee with a written notice of termination as soon as is practicable.
  8. Escorting Employee Off Employer’s Premises: Employees are also likely to contact an employment attorney after suffering the indignity of being escorted from their employers’ premises by security or management. . . . The employer should avoid making a spectacle of the employee’s termination.
  9. Giving Negative References: Employers can push their former employees to seek legal advice if they provide negative references to potential employers. . . . Negative references may unfairly portray the employee in a negative light and later subject the employer to claims of defamation. Instead, the employer should confirm nothing more than the employee’s position, employment status and/or title, dates of employment, and salary.

The list, although not comprehensive, provides employers with suggestions that could prevent some of the lawsuits brought by current and former employees.

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TELG Principal Attorney Adam Augustine Carter Quoted in Bloomberg Article

Thursday, November 3rd, 2011 | The Employment Law Group | No Comments

Adam Augustine Carter, a principal attorney at The Employment Law Group ® (TELG), was recently quoted in a Bloomberg article titled “SEC Enforcers Frozen as Watchdog Unleashes ‘Chilling’ Probes.” Carter was asked to comment on a wave of investigations conducted by Securities and Exchange Commission (SEC) Inspector General H. David Kotz. One of those investigations involved Nancy McGinley, an SEC employee and a client of Carter and TELG.

Kotz’s investigations followed the 2008 Bernard Madoff Ponzi scheme. The SEC received a great deal of criticism for failing to conduct a thorough investigation despite receiving multiple tips about Madoff’s scheme. According to the Bloomberg article, the SEC’s “internal watchdog has castigated the agency for missing the Bernard Madoff fraud,” resulting in several investigations of SEC employees.

Since H. David Kotz was appointed Inspector General of the SEC, says Bloomberg, “his office referred 28 cases to the Justice Department from October 2007 to March of this year, leading to two prosecutions, one agreement not to bring charges and no convictions so far.” TELG client Nancy McGinley was one of the individuals Kotz aggressively pursued. Bloomberg said the following:

According to Adam Augustine Carter, McGinley’s attorney, federal prosecutors dropped the case after a review showed that the employees didn’t trade on material non-public information, the legal standard for insider trading

In the Bloomberg article, Carter was quoted as saying, “They [federal prosecutors] looked at this and determined that there was nothing to prosecute.” Carter also stated, “Not that there wasn’t a felony or it wasn’t worth it, but that there was nothing.”

 

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TELG Principals Publish Article for Bureau of National Affairs, Inc.

Friday, September 30th, 2011 | Rules and Procedures, The Employment Law Group | No Comments

The Employment Law Group’s © Managing Principal Scott Oswald and Principal Attorney Adam Augustine Carter published an article for the Bureau of National Affairs, Inc. titled Drafting and Negotiating Executive Employment Agreements. This article discusses the importance of employment agreements for employees of all levels and discusses in detail key provisions for employment contracts.

Messrs. Oswald and Carter state in the article:

In the District of Columbia, Maryland, and Virginia, if employers do not offer their employees a definite term of employment, the presumption is that, absent a clear expression of the intent to form a contract of employment for a fixed period of time, ‘the parties have in mind merely the ordinary business contract for a continuing employment, terminable at the will of either party.’ Under the at-will doctrine, an employer can terminate an employee at any time and for any reason or no reason at all, so long as the employee is not terminated for an unlawful reason.

Moreover, a written agreement can “prevent misunderstandings between the parties as to employee’s duties and responsibilities, criteria for earning bonuses, and eligibility for promotions and/or transfers.” Having the employment agreement in writing benefits both the employer and the employee and often leads to the best outcome for both parties. Overall, employment agreements help avoid employment disputes, statute of frauds claims, Fair Labor Standards Act claims, and discrimination claims. Finally, “employment agreements can also prevent misunderstandings between the parities as to employees’ duties and responsibilities, criteria for earning bonuses, and eligibility for promotions and/or transfers.”

The key provisions outlined in this article highlight the following points that should be included in employment contracts:

  1. Offer and Acceptance of Employment: To make certain that courts interpret an employment agreement as a contract, at the beginning of the agreement, the employer should include a short section discussing the purpose of the contract…and a section wherein the employee acknowledges that he or she accepts the employer’s offer of employment.
  2. Position for Which Employer Hires Employee: To avoid confusion and contention over an employee’s position, duties and responsibilities, the employer should clearly state the employee’s title and should clearly delineate the employee’s main responsibility… [But] should leave room for flexibility and change.
  3. Length of Contract, Compensation, Benefits, and Bonuses: Other key terms of an employment agreement are provisions that state the length of the contract as well as the employee’s compensation and benefits.
  4. Noncompete/Nonsolicit Provisions: To prevent employees from taking their talents and employer’s trade secrets to competitors, a growing number of employers are requiring employees to sign noncompete agreements… [However,] in realizing that noncompetes are agreements in restraint of trade, courts critically examine and narrowly construe non-compete agreements. Thus, a broad-form agreement that is not narrowly tailored to serve the employer’s business interest is likely unenforceable
  5. Confidentiality Provisions: Confidentiality provisions in employment agreements should not be used to silence employees or to require that employees report fraud internally prior to going to any outside entity to obtain assistance. In negotiating an employment agreement, the parties should clearly define what information is and is not confidential and should carve out exceptions for the good faith reporting of fraud or violations of law to outside entities.
  6. Lapse of Contract: As the employment agreement should be for a definite term, the parties should also address criteria for extending the period of the contract and what should occur if the contract expires but the employee remains employed with the company.
  7. Entire Agreement: Both parties must be sure to include a provision stating that the employment agreement represents and contains the entire agreement. Otherwise, the parties could be subject to litigation over whether the parties included or intended to include other provisions in the employment agreement.

 

Employment agreements not only protect employers and employees in the long run, but they also provide an opportunity to negotiate severance provisions before the employment relationship has soured. Provisions within the agreement are best negotiated at the outset of the employment relationship rather than during employment.

 

R. Scott Oswald Interviewed by Legal Bisnow

Friday, August 12th, 2011 | The Employment Law Group | No Comments

The Employment Law Group Managing Principal, R. Scott Oswald, was interviewed by Legal Bisnow in an article titled Money for Whistleblowers in which Mr. Oswald explains the new SEC Whistleblower Reward Program.  The SEC will reward whistleblowers with between 10 and 30 percent of any penalties collected that total more than $1 million.  Companies will hopefully realize that they can’t keep widespread fraud within the corporate veil, prompting a more open corporate culture and fair treatment of whistleblowers.

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TELG Principal on D.C. Bar Executive Employment Agreements Panel

Wednesday, June 15th, 2011 | Executive Compensation, Executive Compensation Attorney, The Employment Law Group | No Comments

On June 20, 2011, R. Scott Oswald, Managing Principal of The Employment Law Group® law firm, will serve as a panelist at a D.C. Bar CLE entitled “Drafting and Negotiating Executive Employment Agreements.”  The Employment Law Group® has substantial experience advising corporate officers on their executive compensation packages.  The panel will concentrate on D.C. law, but will also compare and contrast the law and practice in Maryland, Virginia, and Pennsylvania.  Register for the event at this website.

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The Employment Law Group® Negotiates $1.1 Million Settlement for Client

Thursday, March 3rd, 2011 | Breach of Contract, Executive Compensation, Executive Compensation Attorney, The Employment Law Group | No Comments

The Employment Law Group® law firm negotiated a $1.1 million settlement for their client, an executive alleging his employer breached the employment contract.  The client wrote, “… without [The Employment Law Group’s ®] assistance, I never would have gotten the outcome we have.”  To learn more about our employment contract disputes practice, click here.

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