Background Checks: The New Burden of Proof
September 27, 2006
Negligent hiring cases typically turn on whether a background check that was forgone would have helped to reveal an employee's propensity to erupt in violence or commit fraud. But a new burden of proof may be on the horizon.
Rethinking the Rule 68 'Offer of Judgment'
September 27, 2006
With the ever-increasing costs of litigation, litigants often take steps to try and control these expenditures. Settling cases early, while not always an attractive option, is nonetheless one way to control these costs. Limiting recovery of attorneys' fees is obviously an approach that may lead to a settlement. Along these lines, defendants, particularly in civil rights cases, have turned to the 'offer of judgment' provision set forth in Rule 68 of the Federal Rules of Civil Procedure.
Federal Tax Incentives for Small Business
September 27, 2006
The federal tax code targets small businesses with a social conscience in an effort to encourage compliance with federal disabilities rights laws. There are tax credits and deductions that promote the employment of, and accessibility for, disabled persons. It is through these tax incentives that small businesses are permitted to defray certain costs associated with: 1) the employment of persons with disabilities; and 2) the provision of accessibility to public accommodations for persons with disabilities. Irrespective of whether a small business is an independent business, a distributorship, or part of a franchise system, it cannot afford to ignore the tangible social and economic benefits these tax incentives provide.
Retaliation Under Title VII
September 27, 2006
What types of employer conduct can constitute retaliation under Title VII? The answer to that question has changed significantly with a recent U.S. Supreme Court decision.
Farmland Industries Creditors Paid in Full
September 27, 2006
Maximizing the recovery for unsecured creditors is the primary goal of every liquidating trustee. In proposing the Farmland Industries liquidating plan, the debtor estimated that the maximum recovery for unsecured creditors would not exceed 85% of their allowed claims and that it would take the liquidating trustee approximately 5 years to reach that payout. Instead, JPMorgan, the appointed liquidating trustee, paid unsecured creditors more than 100% of their allowed claims 3 years earlier than anticipated. Several factors played a crucial role in maximizing the payout for Farmland Industries' unsecured creditors; these are explained in this article.
Debtor Strategies for Avoiding Unfavorable Tax
September 27, 2006
The treatment of loans to a debtor's former employees can result in unforeseen and unfavorable tax consequences. An unwary trustee or administrator of a plan of reorganization (each a 'Responsible Individual') who employs the wrong approach can expose the estate to unanticipated payroll tax liability. Moreover, if the Responsible Individual fails to reserve sufficient funds for payment of such payroll tax liability, he may be forced to pay such liability out of his own pocket. As a result, it is critical that a Responsible Individual be familiar with the issues, and employ the strategies discussed herein.
Can a Workforce IP Training Program Limit Liability Under the Uniform Trade Secrets Act?
September 01, 2006
When a lower-level employee uses a former employer's trade secrets after taking a new job, the plaintiff often sues the new employer itself and demands exemplary damages under the Uniform Trade Secrets Act ('UTSA') — even if the new employer was unaware of, and disapproves of, the employee's conduct. Taking a page from the law of employment discrimination, we believe that companies that provide intellectual property training for their workforce can use the fact of such training during litigation to avoid exemplary damages for the solitary wrongdoing of non-executive-level employees and perhaps avoid vicarious liability altogether. Companies, especially technology startups, can reduce trade secret litigation and liability risks by implementing such programs — programs which today are very rare, even in Silicon Valley.
Employment Agreements and Severance
August 31, 2006
Section 409A of the Internal Revenue Code was enacted on Oct. 22, 2004 in an effort to regulate executive pay practices through the federal tax system. Failure to account for ' 409A's impact can seriously and adversely affect the economics of employment agreements, severance agreements, and other similar plans or other arrangements providing for a deferral of compensation. Consequently, this article details how ' 409A applies to these arrangements.
Social Security Mismatch Letters
August 31, 2006
On June 14 of this year, the Department of Homeland Security (DHS) published for comment in the Federal Register proposed rules outlining recommended procedures for employers to follow in response to receiving Social Security mismatch notices. In promulgating the proposed rules, DHS outlined a new enforcement position ' namely, that no-match letters are relevant evidence that can put employers on notice about the immigration status of employees.
