Author Archives: Gabrielle Wirth

Gabrielle Wirth

About Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

Quirky Question #212, Montana Non-Competes

Question:

We are an accounting firm and recently fired an employee at will.  We have always understood that Montana law disfavors non-competition agreements, therefore, our employment agreement provides that if the accountant provides services to our clients within six months of leaving, he will pay us the profits from such an engagement which are stipulated to be 75% of gross revenues.   Since our former accountant is not completely prohibited from competing, isn’t this agreement enforceable? Answer→

Quirky Question #211, Marijuana Use

Question :

One day during the lunch break, as I was heading to my car in the parking lot, I discovered two employees smoking what smelled like pot.  I approached the employees and reprimanded them for engaging in illegal activities on the job, and told them that I would have them terminated.  One of the employees, whose mother works at a plaintiff side employment firm and whom I knew suffered from chronic low back pain, said that I could not terminate them because their activities were legal.  They both brought in a “recommendation” for marijuana from a physician and left it on my desk.  When I called them in to investigate, they stated that they would have claims for disability discrimination and failure to reasonably accommodate if I disciplined or terminated them.  Is this true?  Do I have to allow my employees to use pot? Answer→

Quirky Question #210, Employee Meals – Vegan Beliefs as a Religion

Question:

We subsidize a different meal in our employee cafeteria each week.  For example, last week hamburgers were only $2.00 instead of $5.00.  Usually we subsidize meat dishes.  A vegan employee has protested we do not similarly subsidize vegan dishes and has stated that our failure to do so constitutes religious discrimination.  This can’t be correct – right? Answer→

Quirky Question #209, Obesity as a Disability under MT Law

Question:

We are in Montana and a very obese woman recently applied for a manager position.  The position is more physical than most in that there is significant walking between facilities, and the candidate must climb ladders to view the product line in the manufacturing facility.   We declined to hire this candidate because we did not think she could safely perform the job.  She has threatened to sue us.  Is there any risk? Answer→

Quirky Question #206, NLRB

 Question:

I discovered one of my employees announced on Facebook that our company is a horrible place to work and she is just “coasting” and waiting to be fired.  Normally, I would just fire her, but our CFO is worried that internet communications between employees in social media can be “protected.”    What is the recent law? Answer→

Quirky Question #205, Pregnancy CA, Washington and Utah

Question:

We have employees in California, Washington and Utah where I understand there may be separate statutes protecting pregnancy disability leave and requiring up to sixteen (16) weeks of protected leave (as opposed to twelve (12) under FMLA).  We terminated an employee in California for not returning after her sixteen (16) week leave and she is threatening to sue.  Aren’t we on safe ground since we gave her the full amount (sixteen (16) weeks) of leave? Answer→

Quirky Question #204, Unpaid Internships

Question:

I am a Human Resources representative of an independent for-profit company that publishes multiple travel and vacation magazines.  Some of my company’s executives have expressed an interest in hiring interns for next summer and for a possible year-round program, if the program is successful.  Currently, we aren’t sure what we would like our interns to do exactly but one thing is clear – the company wants to save costs by having an unpaid internship program.  I am generally aware of recent litigation involving unpaid internships, but I am not sure what this means for my company and our potential unpaid internship program.  Can you provide some guidance? Answer→

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