Employment

Expert Analysis

• FTC Continues To Zero In On Problematic M&A Noncompetes

  

  Although noncompete clauses often play a vital role in mergers and acquisitions, they are not immune from antitrust scrutiny — exemplified by three recent Federal Trade Commission challenges, say Joel Grosberg and Lisa Rumin at McDermott.

• Using The M&A Slowdown To Prepare A Portfolio Co. For Sale

  Excerpt from Lexis Practice Advisor

  

  Dealmakers can take advantage of COVID-19’s dampening effect on M&A activity to work through timing, pandemic considerations and sale process coordination for portfolio company sales so their deals will be ready when the market eventually picks back up, say Michael Gilligan and Caitlin Cornell at Schulte Roth.

• Preparing For A Deluge Of COVID-19 Whistleblower Claims

  

  Attorneys at Proskauer break down the kinds of COVID-19 whistleblower retaliation claims employers should anticipate, and explain key steps to minimize risks under the Occupational Safety and Health Act, National Labor Relations Act, Families First Coronavirus Response Act, and state laws.

• Opinion

  Credibility Concerns About Virtual Arbitration Are Unfounded

  

  Concerns that videoconferenced arbitration hearings compromise an arbitrator's ability to reliably resolve credibility contests are based on mistaken perceptions of how many cases actually turn on credibility, what credibility means in the legal world, and how arbitrators make credibility determinations, says Wayne Brazil at JAMS.

• A Texas Case Could Put Electronic Agreements In Jeopardy

  

  A dispute between staffing firm Aerotek and four former employees over enforceability of electronic arbitration agreements, currently being petitioned for review by the Texas Supreme Court, could signal a big problem not only for employers but all companies that transact business outside of their own locale, says Abby Brown at Moye White.

• New Risk Of Whistleblower, Retaliation Claims In Health Care

  

  Pandemic circumstances put health care facilities in a bind — they must continue to treat their patients, protect patient privacy, and ensure they have sufficient staff who are ready and willing to work, while also protecting themselves from the heightened threat of whistleblower and retaliation lawsuits, say attorneys at Pepper Hamilton.

• NY Ruling Highlights Limits To Employee Noncompetes

  

  Following a New York federal court’s recent decision in Flatiron Health v. Carson, employers should limit restrictive covenants to client relationships developed at the company's expense, and reject the expectation that overreaching agreements may be partially enforced, says Ihsan Dogramaci at Pavia & Harcourt.

• Human Rights Are Becoming A Compliance Issue

  

  A recent commitment from the European Union's commissioner for justice to introduce rules for mandatory corporate human rights due diligence next year may signal the arrival of this issue as a global business imperative, making it as fundamental as anti-corruption diligence, say attorneys at Paul Hastings.

• How CFTC's Agricultural Enforcement May Evolve Amid Crisis

  

  The U.S. Commodity Futures Trading Commission recently singled out agricultural commodities market manipulation as an area of focus, potentially representing a return to the agency’s core mission that could shape enforcement during the current crisis, say attorneys at Latham.

• A Lawyer's Guide To Client Service Continuity Planning

  

  Ensuring uninterrupted client service and compliance with ethical obligations in a time when attorneys are more likely to fall ill means taking six basic — yet often ignored — steps to build some redundancy and internal communication into legal practice, say attorneys at Axinn.

• Employee Virus Testing Could Spark Class Action Claims

  

  While employee COVID-19 testing may enhance safety and reassure a nervous workforce, its potential to generate Americans with Disabilities Act, wage and hour, discrimination, and privacy class actions should not be ignored, say attorneys at Epstein Becker.

• Key Tax Factors To Consider Before Accepting PPP Loans

  

  Taxpayers should weigh the costs and benefits of Paycheck Protection Program loans, as they affect the deductibility of certain costs of doing business and invalidate employee retention tax credits, also available under the Coronavirus Aid, Relief, and Economic Security Act, say Libin Zhang and Xenia Garofalo at Fried Frank.

• Lessons On Trade Secret Claims From Possessor, Not Owner

  

  The Third Circuit's recent trade secrets decision in Advanced Fluid Systems v. Huber is particularly important for companies in relationships whereby vendors create, use or apply confidential information and trade secrets to develop solutions or manufacture products for other entities pursuant to a contract, say attorneys at Proskauer.

• Virtual Meetings Could Be Fertile Ground For Legal Discovery

  

  Many remote meeting technologies include recording features as default settings, raising three primary concerns from a legal discovery and data retention perspective, and possibly bringing unintended consequences for companies in future litigation, says Courtney Murphy at Clark Hill.

• Opinion

  9 Ways To Improve The Paycheck Protection Program

  

  The CARES Act's well-intentioned Paycheck Protection Program has problems, and Congress should take steps to better protect small businesses and define several terms that continue to cause confusion, says Samantha Block, a judicial clerk at the U.S. Court of Federal Claims.