Employment Trivia Game

Readers:  The latest winner to my Employment Trivia Game is Mark Tobin of Grand Forks, North Dakota.  My Herman Cain inspired questions were:  ”What was one of the early movie portrayals of this subject [sexual harassment]?  Identify the actresses in the movie and describe their response to the abusive boss. ”

As Mark correctly described, the movie I was looking for was “Nine to Five,” starring Lily Tomlin, Dolly Parton, and Jane Fonda.  The abusive boss, played by Dabney Coleman, is tied up and held captive by the women.  For providing these answers, Mark is the latest winner of one of amazing prizes. 

The next question goes up now.  Good luck!  Roy

Thanks for a Great 2011!

Readers:  I hope you had a prosperous 2011 and a wonderful holiday season. 2011 is over, and we’re all off to a fresh start in 2012.  Before looking ahead, however, I wanted to express my appreciation to all of the clients with whom I had the opportunity to work during the past year.

For me, the first half of 2011 was dominated by my representation of Revis Stephenson III, the former Chairman and CEO of Advanced BioEnergy, LLC.  Along with my colleagues, David Trevor and Marilyn Clark, we were able to achieve an outstanding result for Revis, following an arbitration involving 15 days of testimony.  For a description of that representation, see the article below, “How to Lose $4 Million When Firing an Executive—What Happens When It All Goes Wrong?”

In the second half of 2011, my practice was largely devoted to a new Dorsey client, Edwards Lifesciences LLC, an Irving, California medical device company that has developed a revolutionary, life-saving, transcatheter heart valve.  This new technology, which was approved for commercial sale in the U.S. by the FDA on November 2, 2011, will enable individuals suffering from severe aortic stenosis to have their aortic valves replaced without the need for open heart surgery.  The Edwards’ representation involved litigation in Minnesota, Massachusetts and Colorado, principally relating to the movement of employees from Boston Scientific Corporation to Edwards Lifesciences.  Happily, the two adversarial medical device companies were able to resolve their disputes amicably in December.

During 2011, I also had the opportunity to continue representing clients, both companies and individuals, with whom I have had a chance to work for years (some, for decades), as well as new clients with whom I established relationships last year.  You know who you are so I won’t list you here.  You also should know how deeply appreciative I have been for the chance to represent you.

One aspect of 2011 that was particularly gratifying was that I was retained by a Fortune 500 company that I had opposed in commercial litigation just two years ago and separately, retained by an opposing counsel who opposed one of my clients in a trade secrets dispute in 2010.  I strive to treat opposing parties and their counsel with dignity and respect, and these two retentions suggest that I achieve that goal, at least some of the time.  I also was pleased by the fact that near the end of last year, I was retained by a client from Chicago solely on the basis of this Blog.

Another aspect of 2011 that was both gratifying and humbling was the honor bestowed upon me by Minnesota Lawyer Magazine, which named me as one of its “2011 Attorneys of the Year.”  This is the second time I have won this award, the first coming in 2006 in connection with my defense of Cisco Systems, Inc. and two individual Cisco employees.  Because this was the second time I received this honor, Minnesota Lawyer Magazine also gave me its “Circle of Excellence Award.”

One consequence of my hectic year, however, was that I had much less time for my Quirky Employment Questions Blog.  I hope to rectify that problem in 2012.  Tomorrow I will post my first 2012 question and I will try to keep up with the weekly questions thereafter.  I also hope to include more submissions from my colleagues, and more submissions from guest contributors. (If you would like to write an article for my Blog, please contact me.)  I also will present a few more polls, and of course, will continue to pose more Employment Trivia Questions (look for a new question on Thursday).  In 2012, I also plan to incorporate more video into the Blog.  More to come on that issue.  Lastly, I hope to publish a few series this year, focusing on issues of importance to employers.

In sum, thanks again to all of you with whom I had the chance to work last year.  I look forward to continuing those relationships this year. I also remain hopeful that 2012 will enable me to establish new client relationships.  If you feel that I could provide assistance or guidance to you or your company, I hope that you will contact me.  Best regards, Roy

Roy’s Analysis of Quirky Question # 184, Should We Offer Mutual Releases to our Ex-Employees?

Quirky Question # 184:   

We recently terminated one of our employees.  To eliminate the possibility of future litigation with him, we offered him a severance package, conditioned on his execution of a General Release.  He now has asked us to make the release, as well as an unrelated non-disparagement clause, mutual.  Is this a good idea?

Roy’s Analysis:

You have asked whether you should accede to your former employee’s request to make the General Release in the Separation Agreement a mutual obligation. While this might seem like an easy question, warranting a “Yes” or “No” response, the question is a bit more complicated than it might first appear.

As a prefatory matter, let me begin by complimenting your company for the fact that it is insisting on a release in exchange for a severance package. In my view, too many companies offer severance packages, sometimes quite substantial, without conditioning those benefits on a comprehensive release of claims. This is generous, but it also is foolish. In some situations, the company essentially will be funding the former employee’s ensuing litigation against his former employer.

Years ago, I represented a company that had historically been able to offer its employees what basically amounted to “lifetime” employment. Although never characterized in that fashion in any company documents, that employment pattern was common and came to be expected by the employees. Unfortunately, national economics changed: demand for the company’s products diminished and the company was forced to engage in a series of reductions in force. Each terminated employee was offered a substantial severance package based on years of service, which was not conditioned on a release. The unintended consequence of this magnanimous approach was that the company was deluged with age discrimination lawsuits. Fortunately, after we defended these lawsuits, none of which resulted in a plaintiff’s victory, the company began linking its generous severance packages, which it continued to offer, to the ex-employees’ execution of a general release. Since that policy change occurred, nearly every separated employee has accepted the severance and the company has not been forced to defend any subsequent claims.

So, as stated above, I start with the kudos – good work on seeking a comprehensive general release from employees being offered a severance package. Read more

Employment Trivia Game Winner

Readers: After stumping you for a few weeks, we now have a Trivia Game Winner.  My initial, admittedly cryptic, one-word clue was “Bergdorf’s.”  When I added the clue that the subject of the question was a prominent American writer, several of you quickly provided the answer.  The first to do, however, was Paul Johnson, who works with Lab Corp in Chicago, Illinois. Paul had no difficulty providing the answers.  As Paul correctly stated, the writer was Truman Capote, who last book was “In Cold Blood.”

The story of Capote’s writing of that book was portrayed in the movie, “Capote,” starring Phillip Seymour Hoffman.  You will have to watch the movie to see how the word “Bergdorf’s” figures in the portrayal of the author.  For providing all of these answers, Paul is the latest winner of one of our amazing prizes.

The next question goes up now.  Good luck.  Roy

Announcements and Trivia Game Clue

Readers: Sorry that I have been absent from the Blogosphere since posting my article about the Stephenson litigation below.  For the last month, I’ve been embroiled in preliminary injunction battles in multiple jurisidictions throughout the U.S.  As those of you who have been through this drill know, it is all consuming.  I just have not had time to write for the Blog, which I greatly enjoy.  But, I’ve come up for air, at least for a while, so next week I will resume my Blogging activities.  I have a couple of interesting Guest Articles to publish as well.  So, tune back in next week.

As far as my Trivia Game, after several weeks where readers were getting the answers almost instantly, my current question and its one word clue apparently has you stumped. Thus far, I’ve ignored the standard requests for more clues, but I’ll relent.

Think American author. Or, if you approach the question from the movie perspective, consider the link between Mission Impossible and the Ides of March. Good luck. Roy