Wednesday, August 16, 2017

When Stopping Competition with A Temporary Injunction, It Pays To Be Precise

Originally published by Leiza Dolghih.

ArcherEven the best non-disclosure and non-competition agreements are not worth anything if not enforced correctly. A lot of times a company rushes to court asking the judge to stop a former employee or his new employer from using the company’s confidential information or soliciting its customers based on the agreements that the former employee had signed with the company.    

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Does Your Job Application Need a Check-Up? Three Costly Compliance Blunders to Avoid

Originally published by Shaun Cassin.

The days of the “one size fits all” job application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. This post will discuss three hiring requirements that are increasingly leaving companies exposed to risk.

 

“Ban the Box” Laws

State and local governments have continued to pass “ban the box” laws, which prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process. As of May 2017, nine states and fifteen cities and counties have adopted a ban the box law that applies to private employers. While Texas is not among those states, last year Austin became the first city in Texas to ban the box for private employers.

But not all ban the box laws are the same. For example, while the most stringent ban the box laws prohibit inquiries about criminal history until after a conditional offer of employment, others allow such questions after an initial interview. Accordingly, employers must make the difficult decision to individually tailor their hiring policies to the specific jurisdictions in which they operate, or to maintain a national hiring policy that complies with the most strict local laws. Either way, under almost every ban the box law, including broad questions about criminal history on an employment application will be a violation.

Pay Equity

The past two years have produced groundbreaking changes to equal pay laws on both the state and federal level. New York, Maryland, California, and Massachusetts all minted new equal pay laws that fundamentally changed how equal pay claims are handled in those states, lowering the bar for a viable pay equity law suit. On the federal level, the EEOC passed an expansion to Employer Information Reports (or EEO-1 reports), which will require many private employers to submit annual pay data detailing racial and gender breakdowns of each job category. Employers must complete their 2017 EEO-1 reports with this additional pay data by March 31, 2018.

What do these changes to equal pay mean for employers aiming to lower legal risk? First, employers who inquire about applicants’ salary histories at the application stage may have to update their applications and hiring processes. Indeed, a growing number of state and local laws explicitly ban questions about an applicant’s salary history. Further, in light of the recently increased viability of pay equity claims at the state level, employers should conduct internal pay equity audits to ensure their hiring processes are not exacerbating pay inequity within their company.

Prohibited Medical Inquiries

Under the Americans with Disabilities Act (ADA), a company’s right to make disability-related inquiries changes across different stages of the hiring process. Prior to an offer of employment, an employer may not make any disability-related inquiries or conduct medical examinations, regardless of whether they are related to the job. Once employment begins, employers may make disability-related inquiries or conduct medical examinations only if they are job related and consistent with business necessity.

Because of this framework, job applications that include disability-related inquiries are in violation of the ADA. Employers should refrain from making disability-related inquiries or requesting medical examinations as part of their hiring process. Off-limits pre-offer questions include not only direct inquiries as to whether an applicant has a disability, but also inquiries about an applicant’s genetic information, prior workers’ compensation history, or prescription medications. Employers seeking to minimize legal risks with their job applications should eliminate any questions that ask or relate to an applicant’s possible impairment.

Takeaways

In short, employers seeking information about employees’ criminal history, salary history, or disabilities should proceed with caution. The current legal frameworks surrounding ban the box, disability-related inquiries, and pay equity all suggest that when it comes to asking sensitive questions at the pre-offer stage in the hiring process, less is more. To avoid liability, employers should contact legal counsel and conduct a job application check-up.

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Federal Court Strikes Down Two Texas Congressional Districts

Originally published by Paul Cannon.

Districts Drawn on Basis of Race On Tuesday, a three-judge panel of the United States District Court for the Western District of Texas ruled that Texas Congressional Districts 27 and 35 violated the Constitution and the Voting Rights Act because they were primarily drawn on the basis of race. Ultimately, this weakened the voting power […]

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Second District Court of Appeals Chief Justice Terrie Livingston announces retirement

Originally published by Eric Quitugua.

Second District Court of Appeals Chief Justice Terrie Livingston plans to retire September 8, 2017. Livingston, who has served as a justice since 1994, was appointed as the court’s chief justice in 2010 by former Gov. Rick Perry and reelected in 2012.

“It has been an honor to serve our 12 counties these last 22 plus years, and to work with our justices here and across the State of Texas,” Livingston said in a press release. “We also have some of the best lawyers and support staff that continuously step up when needed; our production is top notch.”

Livingston began her legal career in 1980, working for several law firms and later her own practice. She created the first budget for the Tarrant County Bar Association and served as chair of the Tarrant County Bar Foundation in 2007. In 2015, Livingston received the Tarrant County Bar Association’s Silver Gavel Award, which recognizes a member of the judiciary who has served on the bench for at least a decade and has made many notable contributions.

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Tuesday, August 15, 2017

The Importance of Understanding Future Income in a Mediated Settlement Agreement

Originally published by Guest and Gray Law Firm.

What is a Mediated Settlement Agreement?

If you reach an agreement in a mediation, more precisely called a Mediated settlement agreement or MSA for short, the agreement is binding on you and all other parties you are agreeing with in a family law case as long as the MSA is drafted in the way that is required under the Texas Family Code. The agreement must be the result of a mediation, hence the name, which is basically just the meeting of both parties with a neutral third person facilitating the conversation so that the parties can come to an agreement. Texas law encourages mediation as a cost-efficient and time-efficient way of settling disputes. One of the benefits of mediation is that instead of a judge who has only a glimpse into the lives of parties based on evidence presented to him or her, during a mediation the parties who know their situation and family the best get to come to an agreement that works for them and is custom to their situation.

One downside to a mediation could be that as opposed to a judge who should know what the consequences of their decision could potentially be, parties could be making agreements in a mediated settlement agreement using language that will have consequences after the agreement is entered that they did not intend. One of the reasons that we trust judges to make decisions for us in legal matters is that in general they have years of experience dealing with similar matters and they should understand what all of the legal jargon that goes into an order actually means.
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Licensing Agreements: How to License Your Intellectual Property

Originally published by Vethan Law.

Licensing Agreements: How to License Your Intellectual Property
Have you ever thought of licensing one or more pieces of your intellectual property? It’s always nice to have a source of revenue and maybe a few companies have hinted they would pay to use your IP in their products or services.

If so, you need to license your intellectual property to gain those revenues and retain the rights to your property.

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The old document and the sea.

Originally published by David Coale.

The common law of contracts was forever shaped by the good ships Peerless (one of which appears to the right), which both sailed into Liverpool in late 1863 bearing loads of cotton from Bombay. A modern counterpoint appears in GIC Services v. Freightplus USA , in which the parties were both talking about a tugboat called REBEL (left), but disagreed over what Nigerian city it was supposed to arrive in after a trans-Atlantic journey from Houston. The core problem with the “meeting of the minds,” however, was not among the parties, but among their counsel and the trial court, as the calculation of damages for the prevailing party rested almost entirely on one invoice. The Fifth Circuit panel split 2-1 over whether an effective stipulation had been reached about the authenticity of the invoice, providing a cautionary note to all trial lawyers about the effect and scope of agreements reached “on the fly” in open court. No. 15-30975 (August 8, 2017).

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