Garden Leave in Action

Considering garden leave's novelty, I thought a collection of news articles descring the use of garden leave might be of some help and interest.

Gardening leave has VCCP hanging on phone - Telegraph

However, VCCP may have used all up all its luck, with the launch of the mmO2 service less than 100 days away. Last month, Charles Vallance, VCCP's founder, was sidelined for the next six months on gardening leave after representations from m'learned friends.

Unusually, it is not his former employer that is insisting on this but his former client, Vodafone, which is clearly deeply worried that he is to work for a competitor.

ABN Amro rebels go on gardening leave - Business News, Business - The Independent

ABN Amro, the Dutch financial services group, had slapped in an injunction on Thursday after Mr Luckraft and Mr Thomas suddenly quit their jobs to go to rival Framlington. The writ was for breach of contract to prevent them joining Framlington early. Framlington had poached the pair at the beginning of April, but they had originally agreed to work out their year's notice with ABN Amro. They walked out on Wednesday, claiming an irrevocable breakdown in the working relationship had occurred.

Framlington said: "Following the legal action taken by ABN Amro there has been a further appearance in court today, 24 May 2002. The court has now lifted the Court Order (originally granted without notice to George or Nigel). George and Nigel have agreed to remain on gardening leave pending the resolution of the issues at a trial, which is to be convened as quickly as possible. We welcome an early trial and remain confident that the actions of George and Nigel will be fully vindicated by the court at that time.

Is gardening leave a bed of roses? - Yorkshire Post

Tim Waring became a partner in charge of launching the new Harrogate office of property specialists Knight Frank earlier this year, after quitting his partnership at estate agents Carter Jonas, where he had spent nine years.

Initial reaction when you were first advised of garden leave?

I was a little shocked, even though I could understand why the decision had been made. I'd planned to take my wife to Paris for a few days and the immediate
handover of my mobile phone ensured we enjoyed some wonderful peace and quiet in France.

***

What are your thoughts afterwards and what would you do differently if ever on gardening leave again?

If I was giving advice to anyone about to take gardening leave, I'd say seek advice from someone who has already done it. I did find that for the first one or two months
I was a bit shell-shocked. I'd been used to working at 90mph and suddenly I stopped. I had a lot of lazy mornings and met people for coffee and lunch.
Looking back, I think I could have done more during that early period, but then again, perhaps I needed the time to readjust and take stock

Hightex puts chief on "garden leave"

Stadium roof specialist Hightex today removed chief executive Klaus-Michael Koch with immediate effect and placed him on "Garden Leave" until 24 April 2009.

***

Non-exec chairman Charles DesForges will take a more active role in the company while a replacement chief executive is found. Frank Molter, currently finance director, has also been appointed chief operating officer.

Why Use Garden Leave?

No, garden leave do think of garden leave as a panacea for all problems of departing employees. I can easily see that a departing employee (and/or their new company) may find the costs of litigation and the money paid during the garden leave outweighed by the profits of jumping ship. (One may also want to read BEAR, STEARNS & CO., INC. v. Sharon, 550 F. Supp. 2d 174 (D. Massachusetts 2008) for an example of a gardening clause not being upheld).

Hong Kong's Career Times gets to the nitty-gritty in Garden leave:

Q1 Why are employers keen to impose garden leave on employees?
A1 Placing an employee who intends to join a competitor on garden leave has several advantages for the employer:
- By temporarily delaying his arrival at the competitor, existing business relationships can be secured;
- The "shelf life" of current confidential information known to the employee will be reduced;
- The employee is not allowed to compete with the employer during his garden leave.

Better off thinking of garden leave as a tool for specific types of employment. I cannot see how it will work in the purely commission types of employment.

I see garden leave working as a very good substitute to non-competition agreements in certain areas. Such as the medical field where non-compete agreements are not exactly favored by the courts (see Enforcement of noncompete agreements).

On the other hand, consider these points from Garden leave a viable option once more as providing a counter-argument to this idea:

The majority went back to first principles and noted that an employer who is paying an employee appropriately is obliged to provide an employee with meaningful work only in limited circumstances - such as where the employee has a specific or unique skill, and where it is clear that the employee's future employment depends on maintaining this skill. Good examples are employees in the entertainment and sporting industries, such as television producers and professional footballers, where garden leave may blunt their skills.

Implications

The good news for employers is that a failure to provide work will not automatically give rise to a breach of contract claim - even if the parties do not include a term in the contract that garden leave is legitimate. As a matter of practice, and to ensure the employee cannot argue they fall within a special skill category, employers should continue to include clauses in employment contracts which allow them to:

# make a payment in lieu of notice; or

# require the employee to take garden leave.

Much depends on the actual terms of the agreement, of course.

Garden leave - Writing Up The Agreement

First, the business needs to decide if a garden leave is a suitable tool. Suitable meaning that it makes economic sense.

Second, the employment contract needs a specific clause that expressly provides for the garden leave. I find support for this in reading A Breach of Contract? by Kate Payne.

Effective Garden Leave -

• Include express provision in the Contract of Employment, providing for garden leave and expressly exclude any obligation on the employer to provide work to the employee. Also include an express obligation on the employee not to work for anyone else during the notice period.
• Make sure the garden leave lasts no longer than is necessary to protect the legitimate business interests of the employer - the Courts are not shy of intervening to reduce the notice period or, more seriously, invalidate the right altogether.
• Team departures - junior brokers and underwriters will often have a shorter notice period than their senior colleagues. Attempts to keep the senior colleagues on garden leave once the more junior ones have started their new jobs with the competitor are likely to fail as the damage to the employers business will already have been done.
• Full salary and benefits must be paid throughout the period of garden leave. Failure to do so will amount to breach of contract by the employer and both the garden leave obligation and any restrictive covenants will be unenforceable.

The Key Issues

• Employers should give thought to continuing to provide non-obligatory bonus benefits throughout the period of garden leave, such as discretionary bonuses, to help counter any claim by the departing employee that their financial interests have been unfairly prejudiced - this is particularly advisable where they form a major part of the employee's package.
• Be cautious in the wording of staff handbooks or training manuals. In the recent Court of Appeal decision William Hill -v- Tucker [1998] the Court considered that the statement in a training manual that the employer was "prepared to invest in its staff to ensure that they have every opportunity to develop their skills" was incompatible with the concept of garden leave.
• Payments made by an employer in respect of the garden leave period may be paid to the employee in the usual way or as a lump sum. However, in either case the payment is taxable.

Requiring a writing for the garden leave seems well established in those jurisdictions with ere they are being used. See Garden leave describes the rule in Hong Kong:

Q2 Can I send an employee on garden leave if his employment contract does not contain a specific clause allowing me to do this?
A2 You cannot be certain that you can place an employee on garden leave unless the employment contract clearly states that you have the power to do so.Indiana law requires the same thing in a non-compete agreement. I cannot imagine Indiana courts upholding an oral garden leave agreement.

You can find an English example here.

Hong Kong's Career Times writes on the importance of good drafting - in terms of English common law - in its Factors in drafting an effective garden leave clause:

"What risks are there for the employer if the clause is not properly drafted?

A4 According to the decision in Symbian Limited v Christensen, placing an employee on garden leave effectively terminates the employment relationship but not the contractual relationship. Hence, a departing employee may take up employment elsewhere during the period unless this is expressly forbidden in the contract. Thus, the extent to which a departing employee is free to compete during the garden leave period will depend on how carefully the terms of the employment contract are drafted."

News on Social Media in the Workplace

From The Tennessean comes Businesses crack down on workers using social network sites

Workplace restrictions on the digital world are forcing employees to give their fingers a rest, even though we've become a society that can't get enough of social networking sites and other online diversions.

Among U.S. companies, 54 percent completely prohibit workers from visiting social networking sites for any reason while at work, according to a report last week from Robert Half Technology.

Nearly one-fifth permit social networking for business purposes only, and 16 percent allow limited personal use.

In the future, more companies will move to block access to social media and monitor what their employees do online, although not completely ban Internet use, said Nancy Flynn, founder and executive director of the ePolicy Institute, which advises employers on how to limit cyber risks.

She doesn't recommend that companies ban all personal Web use or prohibit texting on personal cell phones.

"What I do recommend is that employers put clear rules into place as to how much time you're allowed for personal electronic communication and the times of day to engage in personal use, whether that's the lunch hour or during breaks or for an hour a day," Flynn said.

I emphasized that paragraph.  Clear rules help on several levels.  Take a good look at what your employees do and your business's needs.

About the business' needs, take a look at Breaking: Twitter costs British economy less than people who gaze out the window.

FMLA: Getting Fired for Not Calling In

At this time, I am not taking on contingency fee case and that includes emolyment law cases. Still, trying to keep an eye on developments. So Dismissal for Not Calling In Doesn't Violate FMLA from workforce.com caught my eye:

In June 2006, Bacon sued the hospital in the U.S. District Court for the District of Minnesota, claiming she had been fired in violation of the FMLA. The court found in favor of the hospital, finding that it was entitled to fire her for violating its call-in policy. Bacon appealed.

Affirming the court’s decision, the Minneapolis-based U.S. Court of Appeals for the 8th Circuit agreed that the hospital’s call-in policy was permissible under applicable regulations; that Bacon signed an acknowledgment that the hospital’s policies apply to employees absences; and that although Bacon’s discharge interfered with her FMLA rights, Bacon was terminated to for failing to comply with the call-in policy, and that she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1168, (12/22/08).

Thinking of Using A Non-Traditional Workweek?

Then give workforce.com's The Legal Implications of Nontraditional Workweeks a read:

The federal act’s parameters mesh reasonably well with what might be the simplest version of a less conventional workweek, which is one consisting of four 10-hour workdays. If all nonexempt employees actually stick precisely to that schedule and work no more than 10 hours in any workday, and if all four of their 10-hour workdays fall within a single workweek, then no FLSA overtime is due to any of them for such a workweek.

But this is not the case for an employee who, for instance, works four days of nine hours, 12 hours, 11 hours, and 10 hours, for a total of 42 hours in one workweek. In that situation, the employee is due two hours’ worth of FLSA overtime, even though he or she was not scheduled to work it.

With few exceptions, the FLSA does not allow employers to average or offset overtime hours worked in one workweek against non-overtime ones worked in another, or to "pay" for overtime in time off weeks or months later. This has tripped up unwary employers who adopt four-day/five-day alternating schedule.

***

Ordinarily, a workweek change involves work time that overlaps both the new and the old workweeks. The Labor Department will deem wages to have been paid properly for those hours if the employer: (1) assumes first that the overlapping hours were worked in the "old" workweek, then computes straight-time and overtime pay due for each of the workweeks, and then totals the sums; (2) performs the same calculation assuming instead that the overlapping hours were worked in the "new" workweek....

Linked-in Recommendations: Pro and Con

Delaware Employment Law Blog provides the con in Warnings Against LinkedIn Recommendations: Justified or Propaganda?

Sounds legitimate to me. Indeed, if a supervisor tells an employee how wonderful he or she is all the while thinking terrible things about the quality of the employee’s work product or habits, then there is likely going to be a contradiction between the reason the supervisor tells the employee he or she is being fired and the real reason. Or not. Maybe the supervisor, who is too chicken to be upfront and honest with the employee requesting a recommendation to just come out and say, “You know, Bob, I’m going to have to pass. I don’t think I could write a recommendation for you because you haven’t been a very good performer while you’ve worked for me.”

Instead, the supervisor chickens out and says, “Uh, sure, Bob. I’d be glad to write a recommendation for you. Right after I get back from lunch.” He then proceeds to write a “recommendation” that is pretty bland, entirely generic, and, to most people, having nothing to do with the specific individual. Good for the wimpy supervisor! If it’s a “positive” recommendation that is purely vanilla standard issue, then no harm done.

Personally, I like the above-reasoning, but then I recommend plan vanilla recommendations before the advent of sites like Linkedin. I also suggest reading all of this post.

And for the con is LinkedIn Reviews Can Come Back to Haunt Employers, Lawyers Say from The ABA Journal - Law News Now

If an employer writes a positive review for an employee who is later fired, that review could be presented as evidence that discrimination rather than performance brought on the termination, the National Law Journal (reg. req.) reports.

"Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something," Carolyn Plump, a partner at Philadelphia's Mitts Milavec told the National Law Journal. "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit."

The story cites a recent poll from Jump Start Social Media stating that 75 percent of hiring managers use LinkedIn to research candidates.

Obama Changing Enforcement of Immigration Laws?

I hope employers saw the news on this but if not take a look at Jackson Lewis' ICE Sends Over 650 Employers I-9 Audit Notices in Nationwide Immigration Enforcement Initiative

Six hundred fifty-two employers throughout the country are receiving I-9 Notice of Inspections (NOIs) from the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, the Government has announced. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide copies to ICE of all of their employee Form I-9s and supporting documents by a specified date. In most instances, however, employers are given only three business days to present their records to the local ICE office.

In announcing the initiative, ICE Assistant Secretary John Morton emphasized ICE’s commitment to worksite enforcement. He said the audits were “a first step in ICE’s long-term strategy to address and deter illegal employment.” ICE noted that the employers were selected for inspection as a result of “leads and information obtained through other investigative means.” The 652 NOIs exceed the total number of NOIs issued by ICE in all of Fiscal Year 2008. ICE declined to identify the companies receiving these notices on account of the “ongoing, law enforcement sensitive nature of these audits.”

On this same subject is Work-Site Enforcement Official Wants to Work With Employers:

John Morton, assistant secretary for U.S. Immigration and Customs Enforcement in the Department of Homeland Security, reiterated in a speech Tuesday, June 16, in Arlington, Virginia, the administration’s policy of pursuing criminal prosecutions against employers who knowingly hire illegal workers.

But Morton, who has been on the job for four weeks, also said that he wants to work with companies that are fastidious about compliance.

“I want employers to view ICE as a true partner to find ways to stay within the law,” he said in a speech at an American Council on International Personnel conference. “As we move forward, I hope we have a much better relationship.”

A source of tension between employers and the Department of Homeland Security is an electronic employment verification system called E-Verify. About 128,000 employers have voluntarily signed up to use the mechanism, which checks new-hire information against DHS and Social Security databases.

The Costs of Restructuring A Business

Canada's Slaw raises a point with its Focus on Employees: The Hidden Costs of Restructuring a Business that I think often gets overlooked when restructuring a business (whether in or out of bankruptcy) - the employees. Yes, we know they are there but do we really pay attention?

Planning for a business restructuring often takes months; yet in my experience, insufficient resources are typically devoted to managing the human resources consequences, leading to significant additional or ‘hidden’ costs. The following are some examples of strategies that can mitigate costs and losses associated with terminated or disaffected employees:

* Rumours of a pending sale of a business or layoffs are worrisome and distracting to employees, resulting in lost productivity, higher benefit costs, poorer client relations and service, and attrition of key employees. Emphasize the importance of taking steps to maintain confidentiality throughout the planning or negotiating stages.
*

How fairly employees believe they and laid off co-workers were treated during the restructuring will affect retained employees’ commitment and productivity. Consider what if any steps you can take to minimize the chances that employees will become disaffected and/or leave as a result of the restructuring.
*

If you are considering providing ‘working notice’ of termination for employees, consider the hidden costs of such a plan including increased benefit claims and costs, the potential negative impact on service to clients and customers during the working notice period, and the risk that those employees will not complete critical tasks or facilitate a transition prior to their termination. Offering a closing bonus or increased severance offer payable at the end of the working notice period dependent upon maintaining service levels or completion of the key tasks, is one way to manage those risks.
*

If the sale or closure of a business or business unit is delayed, do not expect that an extension of employees’ working notice will be welcomed by those employees. One consequence of that event is that any negotiations for the final severance packages, if not yet settled, will be negatively affected. If it is reasonably foreseeable that the sale or closure date may be delayed, consider the benefits of agreeing to more generous severance package terms in exchange for an early settlement coupled with a right for the employer to later apportion what part of the severance will consist of working notice and pay in lieu of notice.
*

Business owners who have agreed to sell their business but stay on as an employee after the closing are usually not prepared for and/or underestimate the difficulties associated with the change in control and culture that inevitably occurs. Ensure that any new employment agreements have good severance provisions that can be triggered by the former owner/now employee, and minimize any linkages to payment of the sale proceeds with the length of employment, post-closing.
*

If retention of key employees is a condition of sale, determine what is necessary to secure their employment, or continued employment. Key employees’ leverage increases as costs to negotiate and implement the sale have been incurred, and as closing nears. Consider the relative risks of early communication of a sale that may not close in order to secure key employees, versus the costs of not securing key employees early.
*

Consider the culture of an acquired business when imposing new employment contracts. Even when a purchaser agrees to offer employment to current employees on substantially the same terms, if the form of employment contract (i.e. formality, tone, or one-sided language) is at odds with what the employees are used to, the employee-purchaser relationship will get off to a bad start. That in turn may affect the employees’ willingness to buy into or adapt to operational changes implemented by the purchaser, or result in loss of productivity or other costs associated with attrition.

News: Sentate Version of Health Care Plan

From msnbc.com's First Read blog comes Kennedy committee releases health plan

Employer Play or Play: ("Shared Responsibility of Employers")
-- companies that do not offer "adequate coverage" to full time workers would pay an annual fee of $750 per employee
-- companies that do not offer coverage for part-time workers pay $375 per employee
-- firms with less that 25 employees would be exempt from fees
-- companies most cover 60% of the cost of the monthly premiums to avoid fees

Tweeting Employees?

Let us count the ways Internet access has impacts employment law: E-mail. web surfing, downloading files, and blogging. All have had their crisis moments and now Tweets Create Legal Issues for Lawyers and Employers:

By answering, in 140 characters or less, the question "What are you doing now?" corporate and professional employees "may convey proprietary information, may reveal other privileged or private information and may expose the company to claims of defamation or harassment," writes Jones Day partner Steven Bennett in a cover story for the May issue of the New York State Bar Association Journal.

The original article is here in PDF format.

Not to denigrate the problems of tweeting, but my online experience makes me think that the real problem with any such employee is a lack of common sense. That lack may create more problems for the employer than merely tweeting.

Got an EEOC Mediation in Your Future?

Then give workforce.com's 10-Plus Tips for Succeeding in an EEOC Mediation: Part One a read:

...A simmering-pot is a person whose resentment is at a low boil. Simmering-pot employees have turned off, left the organization prematurely, sabotaged their companies or gone out on extended stress leaves. Some of these pots, if left unattended, will become the people who file charges with the Equal Employment Opportunity Commission, alleging discrimination. The best goal for your organization is to stay out of the EEOC process, and mediation can help you do that. But if a charge has been filed and you’re before the EEOC, consider these tips on how to prepare for success in a mediation. In part two of this article, I’ll suggest some tips for the EEOC mediation itself, as well as some ideas for steering clear of problems in the future.

Tip One: Don’t ignore the simmering pot.
Tip Two: Honestly ask yourself whether you really have a workplace
dispute ‘covered.’
Tip Three: Consider hiring a neutral third-party mediator
to work through the issues.
Tip Four: Understand that EEOC mediators want the employer
to bring a substantive offer to the table.
Tip Five: Consider whether to bring counsel to the mediation.

FMLA case out of Indiana Supreme Court

A victim of my hiatus is Worker's entire service decides FMLA eligibility from The Indiana Lawyer:

In an issue of first impression, the majority of Indiana Supreme Court justices ruled an employee filling multiple positions with the same employer is eligible for leave under the Family and Medical Leave Act if the employee's total service is sufficient to qualify, even if the service in either position alone doesn't qualify.

Gary Community School Corporation v. Tom Powell, No. 45S03-0809-CV-482, the high court had to determine whether an employee's FMLA eligibility is determined by the employee's entire service to the employer or separately for each position. The trial court ruled Tom Powell was an eligible employee for purposes of both his teaching and coaching positions; the Indiana Court of Appeals reversed, holding the issue is controlled by the parties' treatment of the jobs as unified or separate.

Powell worked as a math teacher, night school teacher, and head football coach in the summer of 2001 when he had to take FMLA leave for seven weeks. When he returned to his job as math and night school teachers, he learned the Gary Community School Corp. fired him from his head football coaching job. He complained to the high school principal and spoke with a news reporter. He was denied the position in 2002 and 2003. That led to his action against GCSC alleging it violated FMLA by not restoring him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting his application in subsequent years to become the head coach.

United States Supreme Court and Age Discrimination

Trying to catch up from my hiatus with this new report from workforce.com on the latestADEA case from the United States Supreme Court:

Supreme Court Puts Age Bias Burden of Proof on Plaintiff

In a 5-4 ruling Thursday, June 18, the court held that in an age bias case, an employee has to prove that age was the only reason he or she was fired, demoted or suffered some other work setback.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vermont, called the decision an “overreaching by a narrow majority” that would hurt older employees.

Leahy’s reaction may signal that Congress will act to overturn the decision, as it did recently in a pay discrimination case.

The Supreme Court held that under the Age Discrimination in Employment Act, age cannot be one of many factors that led to an adverse employment action.

COBRA News

Employers and employees should give workforce.com's COBRA Worries Cash-Poor Businesses: Firms Must Pay Now, Wait for Reimbursement a read. Here are the highlights.

It is part of the recently approved federal stimulus bill—the American Recovery and Reinvestment Act—that offers eligible terminated employees a 65 percent discount on COBRA coverage. Enacted in 1986, COBRA allows former employees to continue their health insurance coverage for up to 18 months after they are terminated.

Some companies are worried the federal requirement could cause cash flow problems because of the up-to-three-month delay for reimbursement, said Sue Mathiesen, director of research at McGraw Wentworth, a Troy, Michigan-based employee benefits and consulting company.

***

By April 18, employers are required to mail out the notices to eligible employees who have been laid off since September 1.

Employers who fail to notify terminated employees are subject to fines of $110 per day per former employee. The new regulation affects most companies with 20 or more employees.

“Identifying the employees and sending out the notices takes a lot of time and paper,” Willbrandt said.

The postage for the five-page notices costs more than $1,000, she said.

***

How the new COBRA rules work:
• The federal government will provide a 65 percent subsidy for up to nine months of the COBRA premium retroactive to March 1 for certain terminated employees.

• To be entitled to the subsidy, employees must have been involuntarily terminated between September 1, 2008, and December 31, 2009, and must be eligible for COBRA.

• A special election period exists for individuals involuntarily terminated on or after last September 1 who had not elected COBRA. They will have 60 more days after receiving the notice to elect coverage, which is retroactive to March 1 if they lost their jobs before then.

• The employer pays the 65 percent on the employee’s behalf and is then reimbursed through a payroll tax credit. Large companies may be reimbursed either weekly or monthly, but smaller employers must file for the credit with their quarterly payroll taxes.

• The employee must pay 35 percent of COBRA before the employer can request reimbursement of the other 65 percent. Employers that do not charge the full COBRA premium will not be entitled to reimbursement of 65 percent of the maximum COBRA premium.

For more information:

Tool: Resources for Keeping Up With COBRA Changes

U.S. Department of Labor at www.dol.gov/ebsa/cobra.html and the IRS at www.irs.gov/pub/irs-drop/n-09-27.pdf.

Employment Law: Involuntary Servitude

Iowa Law Blog caught an unusual employment law case out of New York in A Modern Case of Involutary Servitude. This one is so unusual that I am quoting it at length:

Ten nurses from the Philippines were hired to work in nursing homes caring for chronically ill children dependent on ventilators. They each signed employment contracts which promised free travel to the U.S., two months of free housing and medical coverage, training and assistance in obtaining legal residency and nursing licenses. In exchange, the nurses made a three-year commitment to the nursing home. Soon after their arrival the nurses began complaining that the terms of the contact had been breached. Nursing licenses had not been obtained. The housing provided was inadequate—one bathroom, inadequate heat, no telephone service. Nurses had not been fully compensated for all hours worked. The nurses found attorney Felix Vinluan and met with him to discuss their options. He advised them that under the New York Education Law they could not leave their positions during a shift when they were on duty, but had a right to resign after their shifts had ended. The nurses resigned the following day either at the end of their shift or in advance of their shift. They all used an identical form letter they agreed upon together. No patient was deprived of nursing care services.

In response to the mass resignation, the employer sued the nurses and attorney Vinluan and filed a complaint with the New York State Education Department. The nurses and Vinluan were also criminally charged with conspiracy to commit endangerment of a child and a physically disabled person. It was the criminal charges against the nurses and Vinluan that implicated the Thirteenth Amendment. The nurses contended that subjecting them to criminal sanctions for their act of resigning effectively compels them to remain at their jobs in violation of the Thirteenth Amendment. The nursing home contended that the resignations created an imminent threat to the well-being of the children and fell within the “exceptional circumstances” exception to the Thirteenth Amendment. The court disagreed with the nursing home and prohibited the prosecutor from pursing the criminal charges. The nurses were engaged in private employment, not public service; they did not have unique or specialized skills; and there was no threat to the health of the children. The attorney was also cleared of any wrong doing under the First Amendment.

I would like to point out that Indiana's Bill of Rights has an analog to the Thirteenth Amendment (which actually predates the Thirteenth Amendment):

Section 21. No person's particular services shall be demanded, without just compensation. No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.

I think other states, maybe most other states, have a similar provision in their Bill of Rights.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

COBRA News

Take a look at workforce.com's Employers Face Plenty of COBRA-Related Compliance Issues:

"Most employers offering health care to workers in the U.S. will be required to comply with the COBRA provisions of the $787 billion stimulus package by March 1."

The mechanics of the law are straightforward. The challenge for employers will be to comply with the law by the time the COBRA provisions take effect, which is the beginning of the first coverage month after the bill’s approval. That is March 1 for many employers.

The departments of Labor, Treasury, and Health and Human Services are expected to issue guidelines and help employers comply with the law. The following is a basic overview, based on readings of the law and analysis from benefits experts, of what employers need to know to comply with the legislation.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Indiana Age Discrimination Bill Dying?

It will be my guess from reading the following that it will be. I am a bit divided on this in gneral but very much of the opinion that the current law serves no one well. By no, I include particularly businesses.

Senate waters down age-discrimination bill | courier-journal.com | The Courier-Journal

The House version of the bill would have allowed older workers to file age-discrimination claims with the state civil rights commission and have a chance to win back wages or other penalties.

But business groups opposed the measure.

The Senate committee amended the bill so it no longer would give certain workers a chance to seek state penalties for age discrimination.

A conference committee is expected to seek a compromise between the two versions of the bill.

"Interesting" Sexual Harassment Case

I had thought about posting on this case, rejected the idea, and I changed my mind while reading Massachusetts Divorce & Family Law Blog's Corri Fetman, of Sleazy Divorce Ad Fame, Sues Playboy.

You may recall that she became famous, and got her position at Playboy, after posing in sexy, provocative photos for a tasteless billboard ad for her Chicago law firm, discussed here previously.

I had forgotten her name. Oh, does this make my head spin.

Employment Files! Good Advice!

Employee Files- Another Reason to Put Everything in Writing… | PROVISO LAW GROUP

My friend (we’ll call her Nancy) called me the other day because she recently fired an employee (we’ll call her April) for excessive absences and the employee was filing for unemployment benefits from the State. Unemployment benefits aren’t actually paid out by an employer. The benefits are paid out by the State from unemployment insurance premiums which are collected from employment taxes. However, employer insurance premiums rise with every claim that is paid out, so it is worth it to challenge false claims for unemployment benefits.

***

So… the moral of the story?  Keep a file on every employee and document, document, document!  This will also help you if any employment lawsuits are filed as well…

Employers read the full post. I gave a sample to show how well written its, and it is. Even though written by a California lawyer, it is contains good practical pointers for anywhere.