Don't Be Evil? DOL Charges Google with "Extreme" Pay Discrimination

The federal government has charged tech giant Google Inc. of gender pay inequity on a massive scale. After reviewing a sampling of HR data obtained from the company, the Department of Labor accused Google of "extreme" discrimination against female employees. The DOL cited a "systematic" gap in pay between men and women at the company and filed a lawsuit to require Google to provide additional compensation data and documents as part of a broader inquiry into the company's employment practices.

It is illegal for employers to discriminate because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. In addition, employers are prohibited from discriminating against employees because they have inquired about, discussed or disclosed their compensation or that of others, subject to certain limitations. 

If you think you have been discriminated against on the basis of your gender, you should contact experienced employment law counsel as soon as possible to better understand your legal options.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

May a Company Reject A Job Applicant Based Solely On Age?

May a company refuse to consider hiring a job applicant based solely upon age? RJ Reynolds Tobacco Co. thinks so, and has asked the U.S. Supreme Court to condone such behavior in a dispute involving a 49 year-old job applicant it rejected in 2007

Richard Villareal applied for a sales manager job with Reynolds in 2007. At that time, Reynolds had retained a subcontractor to review all job applications. Reynolds' subcontractor discarded Villareal's resume solely because he was older than 35. It also discarded the applications of almost 20,000 other older applicants based on their age. Of the roughly 1,000 sales managers the tobacco company hired between 2007 and 2010, only a dozen or so were over the age of 40. After a whistleblower emerged in 2010, Villarreal sued.

The U.S. Supreme Court has granted cert and will soon hear the case. Employment attorneys around the country are watching.

If you believe you have been denied employment based solely on your age, contact experienced counsel to discuss your rights. In the meantime, check back with kevinburkeattorney.com for updates on the Villareal matter.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

How to Protect Your Business Without Noncompete Agreements

Courts disfavor noncompete agreements. Smart companies recognize this. Entrepreneurs and business owners hoping to reduce the threat of key employee defections and client poaching would be well-served to read this thoughtful article by Huffington Post contributor Nina B. Ries.  

Among attorney Ries' suggestions for protecting your business assets without a noncompete agreement:

  • restrict moonlighting by current employees;
  • limit access to confidential information; and
  • conduct exit interviews involving the accounting for, and return of, company property.

Ries also suggests having employees sign less restrictive non-solicitation and nondisclosure agreements.

The best way to protect your information is to understand the law concerning intellectual property and trade secrets in your area. Contact legal counsel with employee mobility experience to ensure that your policies are up to date and are enforceable in your state.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Do Not Tolerate Sexual Harassment in the Workplace

It seems that sexual harassment is always in the news.  Do not tolerate harassment at work. Inappropriate behavior in the workplace is worse than annoying or exhausting. It is unlawful.

Sexual harassment is prohibited under the New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964. Your employer is legally prohibited from using sexual conduct as a basis for any employment action. Even if no adverse employment decision is made based on your reaction to an unwanted advance, employers are prohibited by law from subjecting you to a hostile work environment.

Sexual harassment can come from anyone in the workplace. This includes owners, managers, and co-workers. In some instances, it can include clients, customers, or vendors. The wrongdoer can be a man or woman. It need not involve harassment of the opposite sex.

If you believe you've been sexually harassed at work, report the harassment to a supervisor. Make sure your complaint is documented. Follow-up to make sure appropriate action is taken. Do not ignore the problem. Do not feel pressured to "go along." If the problem persists, contact experienced counsel regarding your next options.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Should I Sign a Noncompete Agreement?

You've just been offered your dream job. The salary is great. The location and hours are perfect. You've even got an expense account. Congratulations!

There's just one catch. Buried among the documents you've been asked to sign is an agreement not to compete with your employer. Should you sign it?

Before you do, ask yourself the following questions:

Can I do this job on my own, without this new boss/company?

Am I bringing my own customers/clients to this new job?

Will they hire me if I refuse to sign?

Will they give me additional compensation in exchange for signing?

Have they enforced agreements like this against other former employees?

What are the penalties for violating this agreement?

You've probably heard that noncompete agreements are not enforceable. That is a widely held, and erroneous, belief. If a court determines that your noncompete agreement is "reasonable" and is necessary to protect the legitimate business interest of your employer, you may find yourself on the wrong end of an injunction or a significant money judgment. If you've joined a competitor of your former employer, you may even drag your new boss into your lawsuit. 

Prior to signing such an agreement, consult with experienced counsel. Discuss the precise language of the proposed agreement with your lawyer. You may be able to counter-propose a less onerous post-employment restriction. Now is the best time to negotiate your employment arrangement with your new boss. She likes you. You wouldn't have the offer if she didn't. Talk to your lawyer, and then get out there an enjoy your new opportunity!

 

 

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Divided Court of Appeals Alters Common Interest Privilege

New York State’s highest court fundamentally altered how business lawyers and their clients should communicate. In Ambac v. Countrywide, 27 N.Y.3d 616 (2016), a divided Court of Appeals held that the “common interest” privilege applies only where: (1) an attorney-client communication shared with a third-party was made in furtherance of a common legal interest held by those parties, and that; (2) such communication relates to litigation, either pending or anticipated. 

How might this affect your business and why does it matter?

Suppose your company wishes to merge with another entity. The diligence process of such a proposed merger requires your company to share highly confidential information with your new partner. Merging companies execute “non-disclosure” and “common interest privilege” agreements as a matter of course in such situations.

Prior to the Ambac decision, the prevailing assumption in the M&A world was that communications exchanged in the course of such mergers is privileged where the parties have executed a common interest agreement. This assumption is no longer safe.

What happened?

In Ambac, the plaintiff sought to obtain approximately 400 communications between Countrywide Homes and Bank of America. Ambac, an insurer who guaranteed payments on certain residential mortgage-backed securities issued by Countrywide, accused Countrywide of fraudulently inducing Ambac to guaranty those securities. Following the subprime mortgage crisis of 2007-09, Ambac sued Countrywide, and also named Bank of America as a defendant on a successor liability theory. The 400 or so communications sought by Ambac took place after the merger between Countrywide and Bank of America was announced but before the deal closed. 

To the surprise of many, the Court of Appeals compelled the defendants to produce the confidential communications despite the existence of defendants’ common interest agreement. 

What does this mean for your New York business?

First, you must now assume that any documents shared outside of the attorney-client relationship will become discoverable in future litigation. It would be wise to separate pre-litigation materials in any deal from materials likely to be responsive to anticipated litigation requests. You should also consider adopting the jurisdiction of another state, such a Delaware, in your deal’s choice of venue provision. 

At a minimum, discuss with your counsel the potential impact of disclosing sensitive documents to the other side of any deal before entering into a non-disclosure or common privilege agreement. Make sure your counsel is aware of the Ambac decision and has considered its potential impact on you.


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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Honored and grateful. But what if . . . ?

I love my job. I am privileged to be in a position to help good people and great companies navigate difficult situations. But there are some days when this seems like a pretty deal, too....

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Burning Issues in New York's Tanning Bed Industry

State Attorney General Eric Schneiderman continues to turn up the heat on New York businesses in the indoor tanning industry. The State's A.G. is not alone.

According to Corporate Counsel, indoor tanning is under attack from all sides. The Federal Trade Commission is going after manufacturers. The U.S. Food and Drug Administration seeks to ban minors from using tanning salons altogether. Individuals are suing tanning salons with such frequency that some legal experts predict tobacco industry level litigation in the near future.  

Tanning industry lawyers deny that their clients are misleading consumers. Most claim that indoor tanning provides health benefits. When the tanning industry promotes these health benefits, industry lawyers argue that their clients are merely exercising their right to free speech.

Although it is too early to predict the final results of these regulatory proposals and court battles, it is clear that the controversy surrounding indoor tanning will not fade anytime soon. In the meantime, individual tanning studio are well advised to avoid directly making any claims related to the potential benefits of indoor tanning. Rather, tanning studios should direct consumers to third-party resources such as TanningTruth.com or SmartTan.com. These sites contain links to favorable blogs regarding tanning but contain warnings to consumers about the risks of overexposure to UV rays.

 

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006