Now that Thanksgiving is in the past, it’s time to look forward to the future.

Well, not before getting a recap of everything that transpired in employment law in the last year. Or at least everything that we can fit in an hour long seminar.

The webinar that broke attendance records last year is back again on December 4, 2018 at noon ET.

This year, five employment law bloggers are presenting the “Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented” webinar.  Registration is just $25 and it’s eligible for CLE/SHRM/HRCI credit.

All that is needed is to sign up here. 

The presenters this year are:

  • Robin Shea, Constangy, Brooks, Smith & Prophete
  • Kate Bischoff, tHRive Law & Consulting
  • Jon Hyman, Meyers Roman
  • Eric Meyer, FisherBroyles
  • Jeff Nowak, Franczek Radelet
  • Daniel Schwartz, Shipman & Goodwin

Among the topics that you can surely expect to hear about: #MeToo, LGBT discrimination, Data Privacy and Security, Wage & Hour issues, and FMLA.

Be sure to sign up; it promises to be the best ever. (At least until next year.)

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

outten
Wayne Outten addresses conference

No one will ever mistake the Connecticut Legal Conference, run by the Connecticut Bar Association, for, say a glitzy gaming conference. But if you were fortunate to attend, you had the opportunity to hear some pretty good speakers talk about employment law for several hours.

Among the topics were a discussion on the Ellen Pao case, a discussion of the “Obama Effect” on race relations in the workplace, and a recap of other notable employment law cases from the last year.

For me, one of the most interesting discussions came from Wayne Outten – the incoming chair of the ABA Labor & Employment Law Section, and an accomplished plaintiff’s lawyer.  His talk focused on the lawyer as “problem-solver” which he said was critical in employment law cases.

He said that he often tells his clients (employees at companies) that self-help is their first best option.  It’s something I’ve preached as well. Once you get lawyers involved, you can never de-escalate a situation.

I’ve often preached about how employers need to be “fair” in the decisions. He said that for employees, he advocates the same thing.

But he also pulled back the curtain on the advice he gives to employees too; he plants a seed for employees to use in their negotiations (and again, it’s a well-known device).  He suggests that the employee tell the employer that he’s met with an employment lawyer and that lawyer said he or she has a good case, but that the employee is the “reasonable” one and wants to work things out directly with the employer.  It’s the veiled threat approach.

For those that haven’t heard Wayne speak before, he also provided a top 10 list that he’s given for many years on the ways for employers to avoid getting sued.  Among them:

  • Be fair and reasonable in all your dealings with employees.  Follow the Golden Rule: Treat every employee the way you would want to be treated — that is, fairly. Treat every employee so as to bring out the best that person has to offer.
  • Consider alternative dispute resolution techniques. When the foregoing approaches fail to avert or resolve a particular dispute, consider using such alternative dispute resolution procedures as peer review, early neutral evaluation, mediation and non-binding arbitration. (Use of ADR procedures should always be truly voluntary — not crammed down on employees as a condition of initial or continued employment.)
  • Be nice to plaintiffs’ attorneys. When you get a telephone call or letter from a lawyer representing a current or former employee, consider it an opportunity to engage in mutual problem-solving. Consider meeting with the employee and his or her counsel to exchange views on what happened and how the situation might be remedied. Such discussions may avert litigation.

For employers, there’s wisdom in this advice.

In the July/August issue of the Connecticut Lawyer magazine, attorney Joseph Blyskal has the first of a two-part article on the state of restrictive covenants in employment agreements in Connecticut.  I’ve talked about this several times before (most recently earlier this summer), but the Connecticut Lawyer article is recommended reading as well (it’s behind a paywall).

It’s worth reviewing a few key points that can be derived from the article.

First, the author concedes that there has been a lack of controlling cases from any of the key appellate courts lately.  He readily admits that the recent cases do nothing to change the “welll-established standards governing enforceability of restrictive covenants in employment agreements.”

And what is that standard? Over 50 years old, it remains a fact-specific inquiry that “requires the actual impact of particular arrangements on competition [to] be examined to determine whether they have a pernicious effect on competition and lack any redeeming virtue.”

The article then goes on to discuss how various cases apply the factors that courts use to decide whether or not restrictions are reasonable.  Employers are fairing in the middle on a cursory review of the cases.  Where the restrictive covenants are in writing and are not overreaching, courts have upheld them, but too often employers try to enforce overbroad provisions or, in one instance, try to create restrictions after-the-fact.

Another takeaway from the article is the observation that claims are also being made lately on a related law: The Connecticut Uniform Trade Secret Act (CUTSA).  The author teases that this will be discussed further in part two, which will be published later this month.

All told, for those interested in the subject, the article provides a good recap of the state of affairs for restrictive covenants.