The Washington Post Online ran a story this week on the increase for the first time in four years in federal job discrimination complaints filed by workers against private employers.
Some noteworthy statistics:
* Discrimination charges filed with the Equal Employment Opportunity Commission increased to 75,768 during the 2006 budget year from 75,428 the previous year.
* Allegations of race discrimination, with 27,238 charges, accounted for 35.9% of all filings last year.
* Sex discrimination accounted for 23,247 complaints, or 30.7% of all filings last year.
* Charges based on retaliation rose to 22,555, or 29.8% of all complaints.
* Discrimination complaints based on disability rose to 15,625, or 20.6% of all filings.
* Age discrimination came to 13,569 or 17.9% of all complaints filed in 2006.
* National origin complaints came to 8,327, or 11% of the total.
* Religious discrimination complaints totaled 2,541, or 3.4% of all filings.
* Equal pay complaints were 663, or 0.9% of all filings.
Link to Washington Post article
N. DeWayne Pope, DeWayne Pope LLC
Tampilkan postingan dengan label General. Tampilkan semua postingan
Tampilkan postingan dengan label General. Tampilkan semua postingan
Minggu, 04 Februari 2007
Family Businesses and the Harbert Family Conflict
I do not know anything about the Harbert scandal other than what is reported in the papers. (See article linked to below.) But as I read the stories, I think myself and every corporate lawyer in the city gets a little nervous. Knowing the large-scale amounts of money involved, I have no doubt that the best lawyers assisted in the negotiation of this transaction. Yet even with all the legal firepower brought to the table, the transaction still ended in two factions of the family going to war with one another.
There are several points that I can take away from this ugly episode:
First, even the best laid plans and most well documented transaction can end in litigation.
Second, family situations always complicate matters. Family businesses are a tough nut to crack, and books have been written about how to manage a family business. This is a classic example of a transition from the first generation to the second generation, and given the financial success of Harbert currently it is somewhat unique in that the transition happened as well as it did. However, a conflict always exists between family members who were working in the business and family members who are out of the business. To what extent should the family member working in the business bring value to the family members who are out of the business. There is no easy answer to this question, and perhaps each situation is different.
Finally, always consider getting a lawyer. These documents that we ask you to sign do have consequences. I have had people sign documents in all sorts of situations, as apparently the documents were signed by the sister. Quite frankly as a transactional attorney when I get to the table while you are free to read the document, it is my hope and expectation that you have already familiarize yourself with the documents, had questions answered, and prepare to sign them. Otherwise, I'm going to be at the table for very long time, and this usually is not the best and most efficient use of my time. Often I perform a transaction “for the deal". I can do this (see rule below), but the ethical obligations make such representation difficult. A lot of times you need to do it, otherwise you are going to over burden what should be a simple deal. Nonetheless, I think people – particularly business people – bear some of the burden of realizing the competing loyalties in any transaction.
I expect the clients to know what they're signing. If they do not understand that I do expect that they will take up their disclaimer and get their own lawyer. If I'm working with a lawyer on the other side of the transaction, I have much more confidence that their representation in the transaction will help complete the deal in a much more professional manner and frankly much more enforceable as there is no discussion about whether the parties understood what they were signing. In short, I always encourage people (assuming that they are not going to charge my client) to get their own lawyer.
From a lawyer's perspective, I think we as a profession need to do a better job to get the knowledge of the representation down, understand this fundamental deal points in the transaction, and review the deal in an efficient manner which does not cause undue cost, but also adequately represent the interest of the client. I think that is the challenge for me, but also think it is a challenge that our profession (if we want to remain relevant in the business world) needs to address.
Mike Goodrich, Goodrich Law Firm, LLC
LINKS:
"Harbert Heiress Sues Brother Over Family Cash," Birmingnam Business Journal (12/22/06)
There are several points that I can take away from this ugly episode:
First, even the best laid plans and most well documented transaction can end in litigation.
Second, family situations always complicate matters. Family businesses are a tough nut to crack, and books have been written about how to manage a family business. This is a classic example of a transition from the first generation to the second generation, and given the financial success of Harbert currently it is somewhat unique in that the transition happened as well as it did. However, a conflict always exists between family members who were working in the business and family members who are out of the business. To what extent should the family member working in the business bring value to the family members who are out of the business. There is no easy answer to this question, and perhaps each situation is different.
Finally, always consider getting a lawyer. These documents that we ask you to sign do have consequences. I have had people sign documents in all sorts of situations, as apparently the documents were signed by the sister. Quite frankly as a transactional attorney when I get to the table while you are free to read the document, it is my hope and expectation that you have already familiarize yourself with the documents, had questions answered, and prepare to sign them. Otherwise, I'm going to be at the table for very long time, and this usually is not the best and most efficient use of my time. Often I perform a transaction “for the deal". I can do this (see rule below), but the ethical obligations make such representation difficult. A lot of times you need to do it, otherwise you are going to over burden what should be a simple deal. Nonetheless, I think people – particularly business people – bear some of the burden of realizing the competing loyalties in any transaction.
I expect the clients to know what they're signing. If they do not understand that I do expect that they will take up their disclaimer and get their own lawyer. If I'm working with a lawyer on the other side of the transaction, I have much more confidence that their representation in the transaction will help complete the deal in a much more professional manner and frankly much more enforceable as there is no discussion about whether the parties understood what they were signing. In short, I always encourage people (assuming that they are not going to charge my client) to get their own lawyer.
From a lawyer's perspective, I think we as a profession need to do a better job to get the knowledge of the representation down, understand this fundamental deal points in the transaction, and review the deal in an efficient manner which does not cause undue cost, but also adequately represent the interest of the client. I think that is the challenge for me, but also think it is a challenge that our profession (if we want to remain relevant in the business world) needs to address.
Mike Goodrich, Goodrich Law Firm, LLC
LINKS:
"Harbert Heiress Sues Brother Over Family Cash," Birmingnam Business Journal (12/22/06)
Review of Restrictive Covenants of Employers' Employees
Not long ago I posted a blog about a recent Alabama Supreme Court case concerning restrictive covenants. Since that time, I've come across two articles that reflect the dynamic and conflict between employers concerned and employees concern. First in the employee context is an article in the New York Times (see below) that details how the employee in has to handle being asked to sign a non-compete clause and shows how little bargaining power employee has.
But on the other hand is a recent lawsuit by the University of Alabama Birmingham against a former professor who allegedly stole a certain goal of property rights developed at wall being a professor at the University. If the allegations are true, then this professor took an asset that is now valued at $24.3 million and used it for her own personal gain.
LINKS:
The Noncompete Clause: Balk at Your Own Risk, New York Times Online (1/21/07)
But on the other hand is a recent lawsuit by the University of Alabama Birmingham against a former professor who allegedly stole a certain goal of property rights developed at wall being a professor at the University. If the allegations are true, then this professor took an asset that is now valued at $24.3 million and used it for her own personal gain.
LINKS:
The Noncompete Clause: Balk at Your Own Risk, New York Times Online (1/21/07)
"Ex-professor's Company Sued," The Birmingham News (1/21/07)
Mike Goodrich, Goodrich Law Firm, LLC
Kamis, 25 Januari 2007
SBA Provides Free Small Business Podcasts
The U.S. Small Business Administration is offering a series of podcasts free on its website. Podcast feeds deliver audio broadcasts to your desktop. You can also listen to these files on your computer or download them to your MP3 player. Current topics include: Check List for Starting a Business, SBA Programs Support Entrepreneurial Veterans, Is Entrepreneurship for You?, The SBA Small Business Training Network—Log On!, Selecting a Business That Fits, Disaster Preparedness for Business Owners, Financing a Small Business, Creating a Business Plan, and Making Your Business Plan Work for You. If you would rather read than listen, the site also offers Word-formatted transcripts of the podcasts. The SBA will be adding additional feeds every month on small business topics.
N. DeWayne Pope, DeWayne Pope LLC
N. DeWayne Pope, DeWayne Pope LLC
Selasa, 26 Desember 2006
No Hire Provisions Upheld by Alabama Supreme Court
On December 15th, the Alabama Supreme Court in Ex Parte Howell Engineering and Surveying, Inc. upheld the enforceability of “no hire” clauses regardless of whether the employee involved in the situation has a non competition agreement. The no hire provision involved is a fairly typical no hire provision:
Contractor and Crown mutually agree not to solicit nor hire individuals actively employed by the other party’s respective organization during and for a period of one (1) year following termination of this Agreement, without the prior written consent if the other party, which consent will not be unreasonably withheld.
Previously, certain cases suggested that an underlying non compete agreement for the employee in question was required. However, the court in this case found the provision enforceable, regardless of such underlying agreement.
I have seen a number of instances where such a clause is effective and useful. Consulting companies often provide significant value to clients in locating and staffing projects. Without ‘no hire’ provisions in their contracts, a huge incentive arises to circumvent the original placement company in this context, and such acts are detrimental to the business.
However, I have concerns about this decision and the Alabama case law, which increasingly favors these restraints on alienation. First, the employee in this case is not a party to this contract. As the case law now stands, companies can make agreements concerning the livelihood of persons who have no say in the matter. From an employee’s perspective, your ability to move to another company is being restricted – without your consent. (See this article about this perspective and the antitrust concerns.)
Certainly in some situations the employee receives adequate consideration . All to often, however, the employer has a disproportionate bargaining position and often receives little to no consideration. (See this article)
Can continued employment really equate to adequate consideration? Often, employers give “test of loyalty”: requiring employees to sign non competes while at the same time continuing the employees to be ‘at will’.
My personal thought is that the pendulum has swung too far towards enforceability. Two thoughts: First, require real consideration- something more than just the right to continue to work here.
Second, require lawyers to live to the same standard. Currently, lawyers can not be restrained by non competes because these agreements restrict client choice. However, don’t all these agreements in some way limit the options of customers or clients? Why should lawyers get a free pass? Make these agreements applicable to all professions. I would surmise that is lawyers had to live with the same agreements they draft for their clients, more lawyers could persuade their clients against overbroad and unfettered use of these agreements. (See article about a recent New York case involving a non competition agreement.)
Mike Goodrich, Goodrich Law Firm, LLC
Contractor and Crown mutually agree not to solicit nor hire individuals actively employed by the other party’s respective organization during and for a period of one (1) year following termination of this Agreement, without the prior written consent if the other party, which consent will not be unreasonably withheld.
Previously, certain cases suggested that an underlying non compete agreement for the employee in question was required. However, the court in this case found the provision enforceable, regardless of such underlying agreement.
I have seen a number of instances where such a clause is effective and useful. Consulting companies often provide significant value to clients in locating and staffing projects. Without ‘no hire’ provisions in their contracts, a huge incentive arises to circumvent the original placement company in this context, and such acts are detrimental to the business.
However, I have concerns about this decision and the Alabama case law, which increasingly favors these restraints on alienation. First, the employee in this case is not a party to this contract. As the case law now stands, companies can make agreements concerning the livelihood of persons who have no say in the matter. From an employee’s perspective, your ability to move to another company is being restricted – without your consent. (See this article about this perspective and the antitrust concerns.)
Certainly in some situations the employee receives adequate consideration . All to often, however, the employer has a disproportionate bargaining position and often receives little to no consideration. (See this article)
Can continued employment really equate to adequate consideration? Often, employers give “test of loyalty”: requiring employees to sign non competes while at the same time continuing the employees to be ‘at will’.
My personal thought is that the pendulum has swung too far towards enforceability. Two thoughts: First, require real consideration- something more than just the right to continue to work here.
Second, require lawyers to live to the same standard. Currently, lawyers can not be restrained by non competes because these agreements restrict client choice. However, don’t all these agreements in some way limit the options of customers or clients? Why should lawyers get a free pass? Make these agreements applicable to all professions. I would surmise that is lawyers had to live with the same agreements they draft for their clients, more lawyers could persuade their clients against overbroad and unfettered use of these agreements. (See article about a recent New York case involving a non competition agreement.)
Mike Goodrich, Goodrich Law Firm, LLC
Senin, 11 Desember 2006
Welcome to Red Mountain Law's Birmingham Business Law Blog
Today is the launch of Red Mountain Law's Birmingham Business Law Blog. The blog is published by the member firms of Red Mountain Law -- Cunningham Law Firm, LLC; DeWayne Pope, LLC; Goodrich Law Firm, LLC; and Hahn Law Firm, PC. This blog is intended to provide tips and updates on issues affecting businesses and business people. Specifically, this blog will address corporate law, taxation, real estate, wills and estates and human resources. We hope that you find value in this blog and that your will visit often or subscribe to receive automatic notice of updates by entering your e-mail address in the "Subscribe to Blog" form in the sidebar. Should we be of assistance, please contact us at (205) 328-9445 or visit our website at www.redmountainlaw.com.
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