Category Archives: Litigation Issues

Quirky Question # 167; Who Has the Burden of Proof When Terminating an Executive For Cause?


Our company is considering terminating a C-level executive for cause pursuant to a provision in his employment agreement. I mentioned this to a friend of mine who is an attorney and she said the company will be obligated to prove our actions were justified. This does not make sense to me. I thought that, like nearly all plaintiffs, if our executive sued, he would have to prove his claims. Can you enlighten me? Answer→

Quirky Question # 163, Accessing Mental Health Records in a Physical Disability Case


One of our employees recently claimed that he is entitled to a reasonable accommodation of his physical disability (a serious back problem). We were unable to work out an accommodation for the employee (we probably did not do as much as we should have during the negotiation phase) and we terminated his employment. He then sued us under the Americans With Disabilities Act.

We’re now involved in discovery. We’ve asked for all of his medical records – both physical and mental. His lawyers have authorized us to obtain access to all the medical records relating to his physical infirmities but have refused to provide us access to his mental health records.

Aren’t we entitled to this information? What if the mental health records demonstrated that he is not really capable of performing the essential functions of the job? Moreover, given the close relationship between physical and mental health, shouldn’t we be able to get access to this information? What if his maladies really are psychosomatic? Answer→

Quirky Question # 159, Non-Competes and Choice of Law Provisions


Our company’s headquarters is located in Seattle, Washington.  We want to hire someone to start up our company’s new location in another state.  Because of the competitiveness of our industry, we would like our new employee to sign a non-compete agreement applying Washington law.  Although we are familiar with the non-compete laws in Washington, we are unsure what the law is regarding non-compete agreements in the new location.  We are concerned that we will enter into a non-compete agreement with this employee and it will turn out to be unenforceable in the new location.  Is there anything we can do to make the Washington law focused non-compete agreement enforceable outside of Washington state? Answer→

Deposing a Company’s CEO, Quirky Question # 157


An employee recently filed a Charge of Sex Discrimination against our company, with both the EEOC and the parallel state agency. Her lawyers want to depose our company’s CEO. This seems to be little more than a tactical ploy to force our company to expend undue time and resources on this dispute. We have more than 10,000 employees. Will our CEO have to sit for depositions any time a disgruntled employee sues our firm? Answer→

Forcing Employees to Litigate in One State, Quirky Question # 153

Quirky Question #153

Our company has independent-contractor consultants in many states. Our headquarters is in Minnesota. We know that we could be sued in any of the states where we have independent contractors, and that many of those states apply their own legal tests to determine whether an individual is an independent contractor or employee. To get a little predictability, and hopefully, minimize our liability, we’d like to include a choice of law provision in our independent contractor agreements designating Minnesota as the controlling law. Will that provision be enforceable if we get sued in a state other than Minnesota?


U.S. Supreme Court Finds Disparate Impact Claims Timely

U.S. Supreme Court Finds Disparate Impact Claims Timely Years After City Adopts Original Employment Practice

By: Sarah Evans

The U.S. Supreme Court has issued a ruling that may create additional liability for employers whose policies have a disparate impact upon minorities.  On May 24, 2010, in Lewis v. City of Chicago, 560 U.S. _____ (2010), the Court held that a disparate impact discrimination claim may arise not only from the adoption of an employer policy which has a disparate impact upon individuals in a protected class, but also in all future implementations of the practice covered by the policy.  With recent studies exposing the potential disparate impact of common employer policies, such as using social media for background checks and recruiting, this case may have a far-reaching effect.