In our sister blog, ADR: Advice from the Trenches, Don Davis explores back-to-back decisions by New York’s intermediate appellate court that applied very narrow state law principles permitting vacatur of an arbitration award on public policy grounds to vacate an arbitrator’s award that had reduced the employer-posed penalty of termination to a brief suspension.  In so doing, the court implicitly endorsed the employer’s decision to terminate an employee that it found, after an investigation, to have engaged in sexual harassment.  The court found that the arbitrator’s reduction of the penalty – despite having made findings of fact that supported the employer’s decision – would have operated to undermine the state’s strong public policy against sexual harassment in the workplace.

Recent cases in New York and Pennsylvania demonstrate that, at least in some jurisdictions and under some circumstances, a plaintiff can state a valid claim for unlawful gender discrimination based on a spouse’s jealousy.

Continue Reading Spousal Jealousy Can Lead to a Viable Claim of Unlawful Gender Discrimination

Disparaging RemarksIf you have been following my corporate divorce series, you may have read the “Break Up” piece where I advised newly terminated folks to keep their cool if they are unexpectedly fired because their post-firing behavior might impact a severance offer.  Yes, it turns out that your parents were right when they told you that if you have nothing nice to say, don’t say anything at all.  And in the ideal world, everyone would play by that golden rule.  Sadly, that is not the case in the real world.

Apparently this is a big issue for real divorce cases where courts routinely fashion orders preventing spouses from disparaging one another in their children’s presence.  While such court orders are uncommon in employment and other commercial disputes, it is far more common to see private parties contractually agree to play nice after resolving a dispute.

Even though it may stick in our First Amendment craw, it turns out that you can be contractually (and therefore judicially) gagged in the right circumstances.  Here are some things employees and employers should keep in mind when negotiating what is commonly known in corporate divorce as “non-disparagement” provisions.

Continue Reading Corporate Divorce Series: Disparage-Me-Not

Employment Office Like AlimonyIn my last article I promised to examine as part of my Corporate Divorce Series whether alimony (though the politically correct term these days is “spousal support”) is like unemployment (I’m pretty sure it is still acceptable to use that term).

One of the reasons I was inspired to write about this topic is that unemployment appears to provoke the same passionate feelings among employers and employees as alimony does with spouses. So I thought it would be helpful to give some basics about unemployment to give this topic the perspective it deserves.

Unemployment and alimony have similar purposes.  Unemployment is a government program that provides temporary financial assistance to employees who have lost a job through no fault of their own. Alimony is a private legal obligation by one spouse to provide financial support resulting from marital separation or divorce. They are similar financial safety nets.

Continue Reading Corporate Divorce: Is Unemployment Like Alimony?

No Fault Employment?The divorce metaphor bears fruit yet again when it comes to the employment relationship. To this mix I add the concept of “no fault” divorce and the reasons employment ends.

A “no fault” divorce permits a spouse to end a marriage for any reason or no reason at all – its label accurately advertises its results. In fact, in most states, once you satisfy the residency requirements, you can end a marriage surprisingly quickly in the absence of financial or custody disputes. At will employment operates in a similar way.

Continue Reading Corporate Divorce: No Fault Employment?

Written by David Cohen with David Katz

Last week the Colorado Supreme Court ruled that an employer can fire an employee for use of medical marijuana away from the workplace.  The case is Coats v. Dish Network, No. 13SC394 (June 15, 2015).

Continue Reading Rocky Mountain High Part II: Colorado’s Highest Court Approves Employer’s Stance that Employee Toke is No Joke

Treat Your Employment Contract Like a Prenuptial AgreementWelcome to the latest installment in my corporate divorce series.  In my last article I gave some practical advice about how to handle an unexpected firing – a corporate break-up. Now I’m moving to the other end of the employment life cycle: hiring and negotiation of the employment contract.

Continue Reading Corporate Divorce: Treat Your Employment Contract Like a Prenup

My colleagues Jen Rubin and Rich Kelly co-authored an article recently published in Corporate Board Member magazine in which they outline principles and proven techniques to help board members navigate a fast-moving CEO termination. The article emphasizes preparedness for this type of transition and cites steps such as understanding the board’s role, managing legal relationships, informing the board, and following proper corporate procedures. Read the full article here.