Hiring & Classification

Interview / Application
Background Checks
Arbitration Agreements
Apprenticeship Programs
Flexible and Predictive Scheduling
Non-Compete Agreements
Non-Disclosure Agreements (NDA’s)
Salary History Disclosure
Independent Contractors
Temporary / Leased Employees
Day Laborers
Probationary Employees
Contracts
Worker Classifications
Federal Contractors
Undocumented Workers

 

Interview / Application


If I meet the qualifications of the job, do they have to offer me an interview?

No. Employers may legally choose whom they extend an interview offer to; however, it is illegal for employers to refuse to interview based on forms of discrimination that are prohibited by law. Thus, it is illegal for an employer to refuse to interview you because of your religion, race, national origin, sex, age, or disability. Nonetheless, employers do not have to tell you why they are choosing not to interview you.

How long should the hiring process take?

According to a recent study by Glassdoor Economic Research, the time it takes to get a job is increasing. On average, in the United States, it took 22.9 days in 2014 to complete the hiring process of an employee. The study notes that the length of the hiring process is most likely affected by additional screening methods being used by employers. These screening methods include phone interviews, one-on-one interviews, group panel interviews, presentations, IQ tests, job skills tests, personality tests, drug tests, and background checks.

In general, what kind of questions can an employer ask me on an employment application or interview?

In general, employers should only ask you questions about bona fide occupational qualifications (BFOQ) – or questions related to whether you would be able to perform the job and how you will handle certain employment challenges.

Can the potential employer ask me about my age?

Employers cannot base hiring decisions on age. However, if there are laws on youth employment, the employer may ask questions to ensure compliance with those laws, such as “are you at least 18 years old?” Generally, though, employers should not ask questions about your age.

For more information on age discrimination in employment see our age discrimination page.

Can the potential employer ask me about my medications?

Following the BFOQ standard, the potential employer should only ask if you are taking any medications that could affect your ability to perform the job. Therefore, the only medication information you must disclose in the hiring process is information on such medications.

After you accept a job, the employer will have more rights to access your medical record, but once again, only medications or medical conditions that can affect your ability to perform your job can be used as a reason to fire you.

For more information on medical information in employment see our medical privacy page.

Can the potential employer ask me if I’m in a union?

Employers should not ask you whether you are in a union or your opinion on unions. It is considered an “unfair labor practice by [the] employer” to discriminate in hiring decisions, continued employment or “any term or condition of employment” based on whether an employee is or is not in a union. Ultimately the employees decide whether there is a union and whether they want to be part of it – the employer has no control over this.

For information on your union rights once employed see our unions and collective action page.

Can the potential employer ask me about my religion?

Asking about your religion could be a sign of illegal discrimination by the employer. You may choose not to answer such a question. However, an employer can ask questions regarding scheduling when it is a bona fide occupational qualification – such as “This job requires you to work weekends, is this a problem?”

For more information about religious discrimination in employment see our religious discrimination page.

Can the potential employer ask me to demonstrate that I can do the main parts of the job?

Yes. The employer can both ask you whether you can perform each of the job requirements and ask that you demonstrate your ability. Generally, everyone applying for the job should be asked to demonstrate the same job functions. However, if you have a visible disability or have told the potential employer about your disability, they can ask just you to demonstrate your ability to do essential job functions.

Can the potential employer ask me about my childcare arrangements or family plans?

Generally, questions such as: “Are you pregnant?” “Are you married or do you plan to marry?” “How many children do you have?” “Do you have childcare arrangements?” “Does your spouse work?” – Are seen as discriminatory in that they are generally used to discriminate against women. Thus, you do not have to answer these questions – and if you think you were denied the job because of your answers you may have a case for employment discrimination. Remember that questions about scheduling – such as: “This job may require you to work a shift on short notice, is that a problem?” are legal as they relate to an essential part of the job. However, as a practical matter, if you really want the position you are applying for, you may want to answer the interviewer’s questions.  In that case, try to look past the sexist nature of the questions and look to see what the employer is really worried about- ie: possible work conflicts.  Thus, instead of simply answering these questions with facts about your personal life, also provide evidence of your commitment to your career. For more information on discrimination in this context see our pregnancy discrimination page, sex and gender discrimination page, and family responsibilities discrimination page.

Can the potential employer ask me about my citizenship status?

Potential employers should not ask you about your citizenship status because it tends to show the intent to discriminate. However, remember that asking this question is not itself illegal, but rather discriminating against you based on your answer is. The Immigration Reform and Control Act of 12986 (IRCA) makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status. Additionally, the Immigration Nationality Act (INA) forbids employment discrimination based on citizenship status or national origin.

Violations of the INA or IRCA can mean fines and oversight for employers. Recently, the U.S. Justice Department investigated a beef production plant’s hiring practices as to whether the plant was requiring non-citizen employees to show proof of their immigration status, but was not requiring the same of citizen employees. The production plant agreed to a $200,000 settlement before findings were made. Other conditions of the settlement include providing back pay to individuals who lost wages due to the hiring practice, and two years of compliance monitoring.

After an employment offer has been made, an employer can require that you prove your employment eligibility to work in the United States. Once again, this practice should be applied to all employees to truly be free from discrimination.

For more information on citizenship status discrimination in employment see our immigration status discrimination page.

Can the potential employer ask me about my criminal history?

Generally, potential employers should not ask whether you have been arrested but may ask about whether you have ever been convicted of a crime. However, some states limit these questions to certain types of crimes and recent convictions.

The Equal Employment Opportunity Commission notes that Title VII of the Civil Rights Act of 1964 prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion). Furthermore, Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:

  • They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
  • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

For more information on ways that employers can use your criminal history see our criminal records page.

Can a potential employer for a religious institution ask me about my past sexual history?

This issue is heavily debated. Legally, a religious institution is able to ask you about your past sexual history, ethically speaking is another question. The Ministerial Exception is the governing law on this issue which allows religious institutions to violate employment discrimination laws when hiring and firing their ministers. The exemption does not make every religious employee a minister, but it applies to employees with significant religious responsibilities including clergy and religious-school teachers. Thus, these questions are usually justified so long as the job is for a religious position. Religious institutions justify questions about sexual history by arguing that while there is not a direct correlation, there is a strong relationship between child molesters and those who were abused when they were children. Therefore, the religious employers are protecting themselves from potential liability related to potential abuse by employees. The case of Broderick v. King’s Way Assembly of God held the church liable for sexual abuse of a minor child by one of their employees. Thus, to protect themselves from potential liability, religious institutions argue that these questions must be taken into consideration when making hiring decisions.

Can the potential employer require a background check as part of the application process?

Yes. Most employers will use an outside agency to run background checks on applicants, and to do so, they must have your permission as the applicant. However, if you want the job you will likely need to consent to the background check. If an employer does not get your permission before running a background check, you can file a complaint with the Federal Trade Commission (FTC).

If an employer uses information from your background check as a reason not to hire you, you have a right to receive a copy of the background check and an opportunity to address the information and contact the agency to correct any mistakes on the report.

Can the potential employer require a credit check as part of the application process?

If a credit check is relevant to the job, the employer may legally require it. The Fair Credit Reporting Act (FCRA) requires that the potential employer gets your consent before checking your credit.

For more information on credit checks in employment see our credit checks page.

Can the potential employer use my credit report as a reason not to hire me?

Yes, if your credit is relevant to the job. If the employer decides not to hire you based on your credit report, they must give you the name, address, and phone number of the company that supplied the credit report or background information; give you a statement that the company that supplied the information didn’t make the decision to take the adverse action and can’t give you any specific reasons for it; and give you a notice of your right to dispute the accuracy or completeness of any information in your report and to get an additional free report from the company that supplied the credit or other background information if you ask for it within 60 days.

For more information on credit checks in employment see our credit checks page.

Can the potential employer require a physical medical examination during the application/interview process?

No. The ADA (Americans with Disabilities Act) limits when employers can require physical medical examinations to post-offer situations when the physical examination results are related to the employee’s ability to perform the job.

For more information on medical information in employment see our medical privacy page.

Can the potential employer require me to take a lie detector test?

The Employee Polygraph Protection Act of 1988 (EPPA) limits the use of lie detector tests in private employment to security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers. If you are interviewing with a private employer outside of these exceptions, they may not ask you to take a lie detector test.

Can the potential employer require me to complete a personality and/or honesty test?

Yes, if the tests don’t ask intrusive personal questions — such as questions about your sex life. Additionally, these tests should be given to all applicants instead of a selected few.

Can the potential employer require me to take a drug test?

Most private employers may require pre-employment drug tests; however, they may only be given post job offer. Thus, if you are just applying for a job and they have extended no offer of employment yet, the employer cannot require a drug test at that time.

For more information on drug tests in employment see our drug testing page.

Can the potential employer require me to be fingerprinted as part of the application/interview process?

Generally no. Employers may only require finger printing if they fall into a special legal category such as hospitals, public schools, a job involving firearms, pharmaceuticals, and some public jobs.

Can a potential employer use my presence on social media in the hiring process?

Yes, as long as they are not using the information they find out about you on social media to discriminate on an illegal basis such as age, race, disability, religion, national origin, or gender.

Additionally, depending on your area of employment, a lack of a presence on social media may concern your employer. If you are applying for a job where your duties may include maintaining a social media presence for the company, or one of their products or services, you should explain why you do not engage in social media privately. Perhaps specify that you understand how social media works and are capable of using it as a tool for the company, but simply choose not to maintain a social media presence for your private life.

For more information on social media in employment see our social networking and computer privacy page.

Can the potential employer ask me my height and weight?

Unless the employee’s height and weight is directly job-related, an employer should not ask you your height and weight. This inquiry tends to disqualify applicants from protected groups so it should not be used unless job-related.

Can the potential employer ask me about my financial information?

Yes. Employers can ask you about personal finances as long as the employer is using the information to help accurately identify responsible and reliable employees, and the same financial information is asked of all applicants of the same position. However, if the use of financial information tends to most often disqualify people of a particular race, color, national origin, religion, or sex it can be deemed illegal by the EEOC. Lastly, if someone’s disability affects his or her personal financial situation, the employer may have to make an exception for the applicant.

Can the potential employer ask me about periods of unemployment?

Yes. Employers can ask you about periods of unemployment if the employer is using the information to help accurately identify responsible and reliable employees, and the effect of screening out applicants based on periods of unemployment is applied to all applicants equally. Additionally, if screening out potential employees based on periods of unemployment tends to most often disqualify people of a particular race, color, national origin, religion, or sex it can be deemed illegal by the EEOC. As with financial information, if the reason for periods of unemployment is related to the applicant’s disability, the employer may have to make an exception for the applicant.

For more information about addressing how periods of unemployment can affect the hiring process see our unemployment discrimination page.

Additionally, if your employment history may give the potential employer the impression that you are a “job-hopper” or often accept a position, just to find a different one, you should explain the reasons for varied employment or perhaps tell them why this position would be different.

What happens if the employer finds out something on my resume wasn't true?

If the employer finds out that you lied on your resume you will likely be fired. You should not misrepresent yourself when applying for a job. Besides embarrassment and job loss, in some cases, employee misrepresentation can even lead to criminal charges.

What if the employer’s policies and practices tend to disqualify applicants or employees of a particular race, color, national origin, religion, sex, age, employees who are pregnant, or employees who are disabled?

If a policy or practice that seems neutral or legal on its face tends to disqualify applicants or employees of a particular race, color, national origin, religion, sex, age, employees who are pregnant, or employees who are disabled, the practice may be illegal. The EEOC prohibits the use of such practices when they are not job-related or necessary to the operation of the business.

For example, the EEOC recently found that employment assessments used by Target – designed to be a type of pre-employment personality and honesty test as in question 18 above – tended to screen out applicants for professional positions based on race and gender. Thus, while the test may have seemed neutral on its face, it had an illegal discriminatory result. Target settled the case at $2.8 million dollars.

Where can I get more information about applying and interviewing for jobs?

For more information on this topic see the EEOC page on prohibited practices.

 

Background Checks


My potential employer wants to do a background check before hiring me. Can they do this? What are they looking for?

While the laws vary between states, typically an employer can perform a background check. In fact, for some jobs, like any job that involves working with children, employers are required to perform background checks. Some of the most common information an employers check is:

  • Credit history
  • Driving record
  • Criminal record
  • Court records
  • References
  • Drug tests
  • Past employers
  • Sex offender lists
  • School records
  • Medical records


But that’s my private information. Does an employer need permission before performing a background check?

For a lot of information, like your school transcripts or medical records, your employer needs permission first. An employer also needs your permission if they use an outside agency to gather any background information.

However, employers can find out a lot about you without needing your permission just by typing your name into Google. When applying for a job, make sure to Google yourself so you know what shows up and can attempt to fix any wrong or unfortunate information.


So the laws vary between states, but what are the federal laws about background checks?

The main federal law is the Fair Credit Reporting Act (FCRA). The FCRA regulates outside reporting agencies, consumer reporting agencies. If an employer wants a background check from a consumer reporting agency, the employer needs your written permission first. If an employer then takes any adverse action against you because of the report, like refusing to hire you or firing you, you are entitled to a copy of the background check used and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” as well as an opportunity to respond to the allegations and correct any incorrect information.


It’s nice that I get an opportunity to respond, but I would rather know what’s on my credit report beforehand and correct it before it becomes an issue. Is there any way to see my credit report?

Yes, you can get your credit report whenever you want, but you may have to pay for it. However, you can get the information for free if:

  • a person has taken adverse action against you because of information in your credit report;
  • you are the victim of identity theft and place a fraud alert in your file;
  • your file contains inaccurate information because of fraud;
  • you are on public assistance; or
  • you are unemployed but expect to apply for employment within 60 days.

You are also entitled to one free credit report every 12 months, which you can request at annualcreditreport.com or one of many other credit reporting websites.

For more information about credit checks, you can read our Credit Checks page.


Great, but what if the information in my credit report is wrong? Or what if the information is correct, but it’s old?

If the information in your credit report is wrong, the FTC, which enforces the FCRA, suggests you write to the credit reporting company as well as the information provider for the credit reporting company. The FTC has more information, as well as sample dispute letters, on the FTC consumer webpage.

As for old information, a credit report company typically cannot report on any negative information that is seven-years-old or older, or ten-years-old or older in the case of bankruptcies.


My credit is flawless, but my criminal record is not. How much will a past criminal conviction hurt my chances at getting a job?

Maybe not as much as you would expect. There is a growing campaign known as Ban the Box that is convincing states to pass laws that push back background checks into later in the hiring process and remove the question about past criminal convictions on job applications. You can read more about Ban the Box and criminal records in general at our Criminal Records page.


Can my employer perform a drug test? That seems personal, like a background check on my body.

Like background checks in general, while the laws vary between states, employers generally can perform drug tests, and in some cases are required to do so. You can read more on this topic at our Drug Testing.


What does an employer want with my medical records? Why do they care about my broken arm in sixth grade?

An employer could have several reasons to want to view your medical records. There could be a legitimate business reason, like the job requiring a lot of physical activity. Or an employer may need to provide information to the company healthcare provider. No matter what the reason, you have rights in this area, including the federal Health Insurance Portability and Accountability Act (HIPPA). To learn more about the HIPPA and medical privacy in general, you can read our Medical Privacy page.


This is a lot of information an employer can find out about me. What if they go too far? Don’t I have a right to privacy?

You do have a right to privacy. If you feel as though your employer has violated your privacy, you should contact a lawyer. Workplace Fairness can help you find an employment lawyer.

As for whether or not an employer has violated your privacy, courts use a balancing test. First, a court will look at your reasonable expectation of privacy in the area of the background check. For example, you have a higher reasonable expectation of privacy for your medical records than for what you post on social media. Second, a court will look at the reason the employer conducted the background check. Those two are then weighed against each other to determine whether or not an employer has crossed the line.


I feel as though my employer is using background checks in discriminatory ways. Only some groups of people seem to be affected by the background checks. What can I do?

In a situation like this, the more relevant law may be discrimination law as opposed to the laws about background checks. The Equal Employment Opportunity Commission is the federal agency responsible for enforcement in this area. For more information, review Workplace Fairness’ in depth section on employment discrimination.

 

Arbitration Agreements


What is arbitration?

Arbitration is a commonly used form of alternative dispute resolution (ADR). ADR is a process for resolving disputes outside of the public court system. Arbitration usually involves the submission of claims, which might otherwise have been brought to the public court system, for resolution by a private arbitrator. The arbitrator is paid by one or both of the parties involved in the dispute. Discovery (the ability to obtain relevant information from the other side) is generally limited. Although some arbitrators are experts in their fields, arbitrators are not required to be judges or attorneys, and are not required to know and/or follow the law that is the subject of the dispute.


What is forced arbitration?

Forced arbitration is arbitration that is imposed as a condition of employment or required for the receipt of a benefit related to employment. Although it is called “forced” arbitration, there is no legal requirement that any employee accept arbitration as a method of resolving claims that could otherwise be presented to the public court system. However, employers often condition valuable benefits – such as getting or keeping a job – on your “agreement” to submit claims to arbitration which otherwise could have been presented to the public court system. Usually such agreements provide that you have no right to go outside the arbitration system and present your claims to the public courts. In forced arbitration situations, your job may depend on accepting such a provision: your only other choice is to not take the job.


Is arbitration bad?

No. Voluntary arbitration has been used for years in the context of commercial disputes. Companies have employed panels of arbitrators experienced in the industry or field to settle matters quickly and relatively inexpensively when disputes arise between them.

This has also been true in the situation of organized workplaces where workers are represented by unions. Union/management arbitration is often the end of the grievance process for employees covered by a collective bargaining agreement.

In general, this process has worked well for parties to commercial disputes and union disputes in part because the arbitrators are familiar with and well versed in the business and workplace that they are asked to deal with in the arbitration proceedings. Generally, the matters before the arbitrator involve issues of interpreting the contract, and involve repeat users of the system. The parties have equal bargaining power and equal access to evidence necessary to prove their case.

However, in these types of arbitrations, arbitration is a voluntary agreement between the parties. The arbitration process is affected by the fact that the parties have agreed to arbitration and could – with some limitations – decline to participate in arbitration in the future. This distinguishes arbitration generally from “forced” arbitration, which is becoming more prevalent.


Is forced arbitration bad?

Yes. For a variety of reasons, forced arbitration is generally bad for employees. Forced arbitration deprives you of your right to access the public court system. The denial of that access – without you being able to make a meaningful voluntary choice to surrender that right – is a significant loss.

The public court system provides the protection of a system relatively free from the influence of the employer – a protection often not provided in forced arbitration. Additionally, the court system is open to public scrutiny and its decisions are subject to appeal. In employment cases, access to discovery is critical, since so much of the information you need to prove your case is in your employer’s hands. Unlike arbitration in labor or commercial disputes, instead of having a contract govern the relationship between the parties, there are laws that must be interpreted and enforced as they apply to the employment relationship, which make these cases more complex and require judges well-versed in the law. These and many other valuable features of the public court system are either limited or not available in the forced arbitration system.

Lastly, not only are there often much higher costs associated with forced arbitration than with use of the public court system, but recent evidence shows that employees who are governed by forced arbitration rarely file claims. This allows employers who violate employee protection laws to continue to do so without being held accountable for their actions.


Is arbitration legal?

Yes. The Federal Arbitration Act, or FAA, was passed in 1925 in response to a variety of court decisions that held arbitration agreements unenforceable. This law provides that arbitration agreements are generally valid and enforceable. The major exception to this provision is that the arbitration agreement is not enforceable if it violates the general law of contracts – which applies to all contracts under the law of the state that governs the agreement.


Is forced arbitration legal?

Generally, yes. The United States Supreme Court decided in 2001 that the FAA applies broadly to employment contracts. Most decisions before this limited the ability of employers to force employees to agree to arbitration provisions under the FAA. Since the US Supreme Court’s decision in 2001, the use of forced arbitration agreements by employers has increased greatly, as have the decisions enforcing such agreements against employees. However, even this general policy enforcing forced arbitration has limits.

It is important to remember that state contract law governs whether an arbitration agreement is enforceable. So while arbitration agreements are generally ok, a state’s specific contract laws may make a particular arbitration agreement unenforceable depending on the facts of that case or contract. A good example of how this works is on the issue of consideration in contract law. One important concept in contract law is that a valid contract must be based on adequate “consideration. This means that in order for a contract to be enforceable the benefit of the contract must be bargained for, in other words each party gets something of value in exchange for something else of value. In the context of arbitration, you are conferring a benefit on the employer by agreeing to arbitrate any future claims, and thus you should receive something of value in return. For instance, if an arbitration agreement is signed as part of the initial employment contract, your employment can be valid consideration – You give up your rights to potential legal action in exchange for a job. However, what constitutes valid consideration in the employment context varies from state to state. For instance, in Baker v. Bristol Care, Inc., the Supreme Court of Missouri held that an arbitration agreement lacked consideration where the agreement was based on continued employment (after the employee had already been hired). So, the Missouri court held that the employee’s continued employment was not valuable enough to constitute consideration for the benefit gained by the employer (the agreement to arbitrate) – therefore, the agreement was unenforceable for lack of consideration. Courts in a different state might have a different outcome under the same facts based on the contract law of that state.

One major exception to the general rule that forced arbitration agreements are legal also exists in the context of Federal contracting. Federal Acquisition Regulation (FAR) 22.2006, implementing Section 6 of the 2014 executive order, Fair Pay and Safe Work Places, requires that in contracts estimated to exceed $1,000,000, that are not contracts for commercial goods, the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964, or any tort related to or arising out of sexual harassment, shall only be made with the voluntary consent of employees or independent contractors after such disputes arise. This means that parties engaged in federal contracting cannot require arbitration of all potential claims as a condition of employment.

However, FAR 22.2006 does not apply to (1) Employees covered by a collective bargaining agreement negotiated between the Contractor and a labor organization representing the employees [union]; or (2) Employees or independent contractors who entered into a valid contract to arbitrate prior to the Contractor bidding on a contract containing this clause[.] Furthermore, [t]his exception does not apply: (i) If the contractor is permitted to change the terms of the contract with the employee or independent contractor; or (ii) When the contract with the employee or independent contractor is renegotiated or replaced.


What are the legal limits of forced arbitration?

The legal limits of forced arbitration are still being defined. The limits depend to a degree on the state court system in which the agreement will be tested, as well as the area of the country in which your case might be heard. Different federal circuit courts of appeal have taken very different positions on forced arbitration in general. Some courts have been skeptical of enforcing forced arbitration against unwilling employees, whereas others have embraced the practice. The issues and factors that the courts use to determine whether an “agreement” violates the limits of forced arbitration vary somewhat from state to state and from one federal court to another.

Broadly speaking, the questions that courts will ask about an arbitration agreement fall into two categories – substantive unconscionability and procedural unconscionability. Each of these are discussed in more detail below. It is unlikely that an agreement will be struck down unless a court determines that it is both substantively and procedurally unconscionable.

For example, in Arnold v. Burger King, where an employee alleged she was raped by a supervisor while at work, the Ohio State court struck down a forced arbitration agreement signed by the employee. The court held that the arbitration agreement was procedurally unconscionable given the disparity in bargaining power between the parties, and substantively unconscionable as it sought to include a claim of rape within its broad scope. Thus, the combination of procedural and substantive unconscionability rendered the agreement unenforceable.


My employer is requiring me to sign an arbitration agreement giving up my right to sue in a class action. Is this legal?

Yes. In a 5-4 ruling in the case Epic Systems Corp. v. Lewis the Supreme Court upheld employers’ use of class-action waivers in arbitration agreements. Justice Neil Gorsuch said that the 1925 Federal Arbitration Act trumps the National Labor Relations Act. Therefore, If you sign the agreement, you give up your right to band together with your coworkers to sue in court over workplace issues, and are instead forced to handle your dispute individually through arbitration.


Who gets to decide whether the agreement to arbitrate is enforceable?

It might seem obvious that the public court system would get to decide whether the agreement denying an employee access to the public court system is enforceable. However, in 2010, the Supreme Court of the United States held in Rent-a-Center, West, Inc. v. Jackson, that where an agreement to arbitrate includes a provision that the arbitrator will determine the enforceability of the agreement as a whole, if a party challenges that particular provision, then a district court may consider the enforceability of that provision, but if a party challenges the enforceability of the whole agreement, then the provision controls and the arbitrator decides whether the agreement as a whole is enforceable. Thus, effectively, you may be prevented access to the courts even to decide whether you should have access to the courts.


What is 'procedural unconscionability?

Procedural unconscionability deals with how the arbitration agreement was formed. What was the bargaining power of the parties? There are limits that courts have imposed on the manner in which the employee is made to “agree” to arbitration. Factors which courts have considered in determining whether an arbitration agreement is procedurally unconscionable include:

 the time an employee was given to review and consider the agreement

 whether an employee was permitted to speak to a lawyer about the rights that he or she was giving up by agreeing to such a provision,

 whether the employer threatened the employee with the loss of his or her job or other important employment benefit if he or she did not accept the arbitration provision,

 whether an employee was told that the agreement was termed ‘just a form,’ or ‘not important,’ and/or that it was not necessary to read the agreement before signing it,

 whether the agreement was snuck in to fine print inconspicuously located at the bottom of documents or on the back side of documents.


What is substantive unconscionability?

Substantive unconscionability looks at the fairness of the process under the agreement versus what an employee would otherwise have in the public court system. Does the arbitration provision eliminate some claims that could have been made in a courtsuch as a claim for a penalty which might be available under the law for late payment of wages? Or, do the arbitration proision eliminate remedies which might otherwise be available? These and other similar issues are a limitation on the employee’s substantive rights and may be substantively unconscionable.

In 2013, the Supreme Court of the United States noted in American Express Co. Et. Al. v. Italian Colors Restaurant et al., that the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy. Thus, the waiver of class arbitration was upheld even where the cost of arbitrating an individual claim exceeded the potential recovery. Employers will likely rely on this to support their incorporation of waivers of class action claims within employee arbitration agreements.

Nonetheless, in 2014 the National Labor Relations Board held in Murphy Oil that a forced arbitration agreement in which employees waived their right to participate in collective legal claims constituted an unfair labor practice on the part of the employer and was thus unenforceable. It is important to note that when cases are heard by an NLRB judge, the losing party has the right to appeal the decision for review by the full five-member board, and finally may appeal the decision to a federal court. So it is important to remember that a decision at the NLRB level, whether positive or negative, may not survive the appeals process. Federal courts have varied by jurisdiction on their decisions to enforce forced arbitration agreements.

Factors courts often look to in determining whether an agreement is substantively unconscionable include:

 the cost of arbitration to the employee,

 limitations on the relief the employee can get in arbitration versus public court,

 mutuality – that is, whether the employer and employee are both bound to arbitrate their claims,

 limits on methods used to get evidence which would otherwise be available in a public court to the employee,

 justifications for one-sided results,

 overall imbalance in the obligations imposed.


What costs are too high to be enforced?

Imposing high costs on an employee who wishes to enforce his or her rights under the law may, depending on the circumstances, render an arbitration agreement unenforceable. It is important for an employee to realize that these costs are at times not obvious. Arbitrators may require a very high fee even for getting involved in the case – sometimes thousands of dollars – in addition to charging an hourly rate for their services. Proof of the costs of arbitration is sometimes hard to come by and is sometimes required by courts to use this ground as a basis to strike down an agreement. No fixed dollar amount is set in law as too high to force an employee to pay.

All that can be fairly said in general is that the higher the cost imposed on the employee to engage in arbitration the greater the likelihood that the court will strike the arbitration provision down as unenforceable. The trend is moving in the direction of not enforcing agreements that require employees to incur any costs that are higher than the employee would otherwise have to pay in court.


What is the standard for arbitrator bias?

An area of unconscionability which courts are very sensitive to in general is any biased method of selecting the arbitrator. For instance, if the employer maintains complete control over selection of the arbitrator, most courts have found the agreement unenforceable. Unfortunately, this is a situation that is still somewhat difficult to discover, as employers often use what appear to be neutral or independent agencies to supply arbitrators. However, in many situations, these agencies actually advertise their services exclusively to employers and emphasize that they are a means of controlling the cost of employee claims. Also, there are times when arbitrators do regular business with an employer and depend upon the income from that employer’s business. All of these are factors that can influence a court in deciding whether an arbitration “agreement” is unenforceable because it does not protect the employee’s right to a neutral party as an arbitrator.


What limitations on relief are too much?

Generally, courts have looked very critically at any limitation on the relief that, absent the arbitration agreement, would otherwise be available in public court.. As a result, most forced arbitration agreements now specifically provide that there is no limitation on the claims or damages that the employee canreceive. Any restriction on remedies that the employee would have had available in court greatly increases the chance that the agreement will be struck down as unenforceable by the courts.

For example, in Iskanian v. CLS Transportation Los Angeles LLC, the California Supreme Court said that while forced arbitration agreements class action waivers are generally enforceable, a PAGA (Private Attorneys General Act) claim is unwaiveable. It is important to look to the law of the state that governs your employment contract to see if there are unique claims available to you as an employee.


Is a mutual agreement required?

Courts vary in requiring “mutuality” of agreement to submit claims to arbitration. That is, some courts require, as a condition of enforcement, that the employer agree to submit any clams it has against the employee to arbitration as well as requiring the employee to do so with claims against the employer. The idea that a contract must have reciprocal promises and not be completely one-sided is basic to contract law. However, not all courts enforce this rule in the arbitration area, as many have said there is no “mutuality” requirement for arbitration agreements.


What procedural limitations are too restrictive?

Many discrimination claims and other employment claims are difficult if not impossible to prove without getting information from the employer. This can include information about you – the wronged employee – and about other employees. It may include information about employer policies, investigations, pay and benefits. In public court systems such information is usually available through a process known as discovery. The availability of discovery is often very limited in arbitration proceedings. This is a major disadvantage to arbitration for many employees. Courts are becoming more sensitive to limitations on discovery, and are becoming more likely to strike down discovery limitations, such as those that prohibit depositions.


After working at my company for several years, I've been asked to sign a forced arbitration agreement at work. What should I do?

You have a difficult decision to make, although it may not matter whether you sign the “agreement” or not. If you continue to work after you are informed that a forced arbitration agreement governs your employment, you may be bound by it, even if you refuse to sign it. If you quit – or if you are fired for refusing to sign the “agreement”- you may not have any grounds to sue. This depends on the facts of your job, how the “agreement” is presented, and the court jurisdiction that controls your situation. If you do sign it, you will probably be stuck with arbitration as the only method of legal redress for any job related problems.

Here are some potential responses that may help better protect you in this situation:

 Ask your employer whether you have a choice to sign the agreement.

 Have it reviewed by legal counsel to determine whether it’s enforceable in your jurisdiction.

 Make careful notes of any conversations you have with your employer about modifying or not signing the agreement.

 Let your employer know, and document, that you are concerned about the additional costs of arbitration.

If there is a way, without jeopardizing your employment, to indicate that you’re only signing the document to keep your job, rather than voluntarily consenting to arbitration, then do so. However, you must carefully balance your interest in challenging the policy with your interest in keeping your job, so you may wish to consult with an attorney before taking this step.


I was just offered a new job, and noticed a forced arbitration agreement in the paperwork that I was asked to sign. Should I sign it?

No. But you may have to in order to get the job. What then? As stated in the previous question, you have a difficult decision to make, although it may not matter whether you actually sign the “agreement” or not, you could still be bound by it.


If I think I have grounds to sue my employer, but am subject to a forced arbitration agreement, what do I do?

In this situation, it is important to consult with an attorney to determine what rights you may have. Depending on the issue involved and the provisions of the agreement, you may need to quickly make a strategic decision about whether to proceed under the forced arbitration process that is in place, or to challenge the process in court. There may be fast-approaching deadlines that will affect your legal strategy, so it is important to consult with an attorney immediately in order to preserve the widest range of options for yourself.

 

Apprenticeship Programs


What are registered apprenticeships?

Registered Apprenticeships are apprenticeship programs that meet the national apprenticeship standards for registration with the U.S. Department of Labor (DOL) or federally recognized State Apprenticeship Agencies.

During the registered apprenticeship program, the apprentice will earn paychecks. Upon completion of the program, the apprentice receives a nationally recognized credential from the DOL and is elevated to journey-worker status. The new status leads to increased pay and advanced career opportunities.

Every registered apprenticeship program has a sponsor who is responsible for the overall operation of the program. Registered apprenticeship programs include structured on the job training and related instruction either through a community college, technical school, apprenticeship training school, or by the sponsoring business.


How do I apply for apprenticeship programs?

The hiring process for apprenticeships varies based on the employer.

The DOL has an interactive map that shows apprenticeship openings by city

http://www.dol.gov/featured/apprenticeship/find-opportunities

The DOL also provides a database with all apprentice sponsors in your state and county. This can be helpful in seeing what types of apprenticeships are offered in your area.

http://oa.doleta.gov/bat.cfm

Once you find an apprenticeship program, you are interested in you can apply online through the sponsor’s website.


Are there any applicable laws about apprenticeship?

The National Apprenticeship Act (Fitzgerald Act) governs apprenticeship programs and gives the Department of Labor authority to formulate and promote standards of apprenticeship in connection with the Department of Education.


Is an apprenticeship a job?

Yes, an apprenticeship is a job. The average beginning wage for an apprentice is approximately $15 per hour. Wages can increase over time based on knowledge and performance advancements.


Does my apprentice status differ from the status of an employee?

Yes, most employees in the United States are employees “at-will” employees and work for without an employment contract. Employees “at-will” may be fired without any warning and without cause. Apprentices are not employees “at-will.” Apprentices’ employment status depends on their apprentice agreement. Most apprentice agreements are term agreements that stipulate that an apprentice can only be terminated for good cause with due notice.


Does the Fair Labor Standards Act apply to apprentices?

Yes, the Fair Labor Standards Act (FLSA), sets out the federal minimum wage and requirements for calculating hours worked. These provisions apply to apprentices as followed:

The time apprentices spend working on the job are hours worked. The time apprentices spend on classroom instruction outside of working hours may or may not be hours worked depending on the terms of the apprenticeship agreement.

For time spent on training to be hours worked, the apprentice must be employed under a written apprenticeship agreement or program that meets the standards of the Office of Apprenticeship of the U.S. Department of Labor (OA) and the training must involve productive work or performance of the apprentice’s regular duties. An agreement stating that training will be classified as hours worked must be in writing.


Who regulates apprenticeship programs?

The U.S. Department of Labor’s Office of Apprenticeship (OA), works with State apprenticeship agencies to administer national apprenticeship programs. The OA along with state agencies work to ensure programs meet federal and state standards. The Office of Apprenticeship seeks to protect the safety and welfare of apprentices. OA issues nationally recognized and portable Certificates of Completion of Apprenticeship, and promotes the development of new programs.


How do I qualify for an apprenticeship?

Each registered apprenticeship program will have its own qualifications tailored to the apprenticeship. The apprentice sponsor will identify the minimum qualifications needed to apply for that program. All applicants are required minimally to meet the qualifications set out by the apprenticeship sponsor to be considered for the program. Apprenticeship programs require that the starting age be no less than 16 years of age. Programs in hazardous occupations usually require the starting age to be 18.


How long do apprenticeships last?

The length of an apprenticeship program depends on the occupation and type of program the apprentice enters. Most programs run from one to six years. For each year of the apprenticeship, the apprentice will normally receive 2,000 hours of on the job training and a recommended minimum of 144 hours of related classroom instruction.


What are some of the benefits of apprenticeship?

Apprenticeship programs benefit both employers and apprentice employees. Companies can invest in talent by training apprentices in the latest advancements in a particular industry.

Apprentices can benefit by starting a career and earning a wage while continuing an educational program. Apprentices become highly skilled within an industry and can increase earnings and advance their careers


What sectors of the workforce offer apprenticeship programs?

Over 150,000 businesses have registered apprenticeship programs with the DOL offering over 1,000 career areas. Here are a few examples of fields that provide apprentice careers:

  • carpentry
  • electrical work
  • telecommunications
  • childcare
  • construction labor
  • plumbing
  • healthcare
  • manufacturing

 

Flexible and Predictive Scheduling


What is flexible scheduling?

Flexible scheduling is an alternative to the traditional 9 to 5, 40-hour work week. It allows an employee to work hours that differ from the normal start and stop time. Flexible scheduling gives employees stability in their schedule as well as opportunities to balance other commitments.


What is predictive scheduling?

Predictive or Predictable scheduling refers to employers providing employees advance notice of their work schedule, and minimizing alterations to an employee’s schedule once it is posted. Predictive scheduling operates to protect hourly workers, typically food service, retail, and hospitality employees, from unpredictable schedules, which can pose difficulties for employees trying to maintain a work-life balance.


What are the different types of flex-time scheduling?

Traditionally, there are different types of flexible scheduling that companies may consider for their workers to use. Common types include:

-Flex/Alternative Work Schedule: A flex or alternative work schedule allows employees to vary start and end times on a weekly or daily basis. This, however, does not alter the total number of hours worked per week.

Compressed Work Week: A compressed work week allows for an employee to work a 40-hour workweek but in less than the typical five workdays. For example, this can be four ten-hour work days.

Flexplace/Telecommute: A flexplace or telecommute arrangement allows an employee to work remotely.


Does the Fair Labor Standards Act (FLSA) address flexible work schedules?

No, the FLSA is the act that governs American employment. However, the FLSA does not address flexible work schedules.

The Department of Labor has stated that “allowing employees to vary their arrival and/or departure time is a matter of agreement between the employer and the employee.”


What federal law covers flexible schedules for federal employees?

The Federal Employees Flexible and Compressed Work Schedules Act (FEFCWA) removes traditional scheduling requirements for government employees. Generally, federal law requires agencies to set traditional work hours over a Monday through Friday schedule. FEFCWA authorizes – but does not require – agencies to establish alternative work schedules. This can either be a flexible work schedule or a compressed work schedule.

Under a flexible work schedule, an agency still has the discretion to establish core hours that all employees must be at work. Employees are then allowed to vary their arrival and departure time around those core hours.


What is “Just-In-Time” scheduling?

“Just-in-time” scheduling involves a tentative work schedule where employers analyze factors, including weather conditions and customer traffic, to schedule employees, often at the last minute.  This type of scheduling is used to maximize revenue but requires that employees always be available at a moment’s notice.


What are the effects of unpredictable scheduling practices?

The lack of stability and predictability in scheduling for employees in occupations like retail, food service, and hospitality makes it difficult to balance other commitments, like providing child care, getting or keeping a second job, and accessing and receiving needed medical care, among others responsibilities.


Does the Fair Labor Standards Act (FLSA) address predictable scheduling?

No, the FLSA does not regulate employee scheduling, with the exception of certain child labor provisions.

According to the Department of Labor “…an employer may change an employee’s work hours without giving prior notice or obtaining the employee’s consent (unless otherwise subject to a prior agreement between the employer and employee or the employee’s representative).”


Are there any federal laws that mandate predictable employee scheduling?

Currently, there are no federal laws that cover predictive scheduling. However, that could soon change. Recently, Congress introduced a bill called the Schedules That Work Act, which would allow employees to “request changes to their work schedule without fear of retaliation and ensure that employers consider these requests.”


Are there any state laws that mandate predictable employee scheduling?

Yes, the state of Oregon is the first state to pass a predictable scheduling law. Some cities, such as San Jose, San Francisco, Seattle, New York City, and Washington, D.C. have also enacted laws related to predictive scheduling, which have added stability and predictability to worker’s income and schedules. Predictive scheduling laws are an emerging trend and employees should monitor local ordinances and state predictable scheduling enactments.


What is “clopening”?

“Clopening” is the scheduling practice of requiring employees who close the business at night to return and reopen in the morning.

This practice has come under increasing scrutiny. It does not offer enough rest time between shifts and makes it difficult for employees to fulfill responsibilities outside of work.


Are there scheduling protections to ensure that workers don’t have to do “clopening” shifts?

Currently, there are no federal or state labor laws that govern the intervals between shifts. However, certain unions have advocated that their members be off a minimum amount of time between shifts.

On the state level, bills have been introduced in Maryland, Massachusetts, and Minnesota, which would require employers to give workers at least 11 hours between shifts. These bills would also require compensation if employees are called in before 11 hours have passed between shifts.

 

Non-Compete Agreements


What is a non-compete agreement?

Non-compete agreements, also known as covenants not to compete or restrictive covenants, are quite common in employment agreements, employment applications, and in contracts for the sale of businesses. The general purpose of these agreements is to restrict the ability of employees who sign the agreement to go into business against the employer within a certain geographic area for a certain period of time. If you sign it, typically you are agreeing that you will not compete with your employer by engaging in any business of a similar nature, as an employee, independent contractor, owner, part owner, significant investor, and whatever other forms of competition your employer identifies to cover its bases.


Am I required to agree to a non-compete agreement?

No. However, not agreeing to a non-compete agreement, may cost you your potential job (or your current job, if your current employer now wants you to sign an agreement that did not apply to your employment before.) If the employer is unwilling to give up on the agreement or alter the form or content to better suit you, you may be not be hired, or you may be fired if you are already employed.


What factors do courts look at to determine whether a non-compete agreement is reasonable?

While non-compete agreements are analyzed under state law, and each state is different, there are some common factors that courts look at to determine whether a non-compete agreement is reasonable:

 Does the employer have some legitimate interest it is protecting with the non-compete agreement?

 What is the geographic scope of the restriction? Will it keep you from making a living?

 How long is the non-compete agreement in force?

 Does the agreement keep you from doing a type of work very different from what you had been doing?

 Did the employer provide you with additional compensation or benefits in return for getting your agreement to sign the non-compete?

Each state has its own standards with respect to the validity of non-compete clauses. For specific information on your state’s non-compete laws and pending legislation, please check with an attorney in your state. At the federal level, the White House published a 2016 report on non-compete contracts in employment, holding that they “can impose substantial costs on workers, consumers and the economy more generally.”

In a New York case against the sandwich chain Jimmy Johns, the court held that the company’s non-compete preventing employees from working in a similar industry that worked primarily with sandwiches for two years was invalid. In response to this case, there is legislation currently proposed that would prohibit the use of non-compete agreements for employees earning less than $15/hour ($31,200 a year) or the applicable minimum wage in the employee’s municipality. Keep checking back to determine the status of this legislation.


What are considered legitimate business reasons that will justify an employer's enforcement of a non-compete agreement?

It is not enough that your employer simply doesn’t want you to take your skills and abilities to a competitor. There needs to be some good reason for the non-compete. For example, if the employer introduced you to all its best customers, it may have a legitimate interest in keeping you from going to a competitor and luring those customers away. The goodwill developed in terms of customer relations, gives the employer a competitive advantage. They may want to prevent you from capitalizing on it, thus they are entitled to protection.

Or, if you gained certain confidential knowledge that you would inevitably use in the course of working for your new employer, a court may find that to be a legitimate reason to uphold a non-compete agreement.


What is considered a reasonable geographic scope?

It depends. Courts often consider these factors: geographic scope, length of time, nature of duties restricted and consideration – in relation to one another. For instance, a broad geographic scope – say an entire state – may be more likely to be enforceable if the duration of the restriction is short – say a month. On the other hand, a broad geographic scope coupled with a long time period of prohibition is more likely to be held unenforceable by a court. When looking at geographic scope courts examine the services provided by the employer. The court generally will not permit a non-compete that prevents an employee from working in a region where the employer does not do business.


What is considered a reasonable duration of time?

As discussed in the previous question, what length of time is considered reasonable will generally be analyzed in conjunction with the other factors. For example, if the non-compete agreement is designed to protect valuable information the reasonable duration is for the time the information has value.

Lifetime bans on a particular area of work have been upheld in unique circumstances, but, generally, courts analyze the “protectable interest” the employer has and will not uphold time restrictions which go far beyond the employer’s “protectable interest.” For more information about the employer’s protectable interest, see the next question.


What is considered a reasonable restriction on the nature of duties performed?

To answer this it is important to define the employer’s “protectable interest.” This is analyzed by courts using tests which vary from state to state. In general, courts look to the following factors

 the nature of the work performed,

 the length of time the employee was employed by the employer,

 whether the employer conferred special training or education as a benefit of employment,

 whether the employer shared trade secrets with the employee which could substantially affect the employer if used by a competitor,

 whether the information the employee possesses is really kept confidential by the employer, and

 whether the knowledge the employee has is unique to the employer, or of a general nature, such as general sales experience.

There may be are restrictions which are so broad that they eliminate the ability to work at all in a given field or profession. Because in some states constitutions protect the right to earn a living, some courts have held there are state constitutional rights to be able to earn a living, some courts have held that these restrictions should are to be scrutinized very closely.


Does my employer have to pay me additional money in exchange for a non-compete agreement?

The employer seeking a non-compete agreement may, in some cases, pay what is called “consideration”: additional compensation in exchange for the employee or seller agreeing to this provision, or some other non-monetary benefit, such as a change in job duties or responsibilities. However, whether this is required may depend on the law of your state. Generally, your employer does not have to give you additional financial compensation, but not doing so may have consequences when the employer tries to enforce the agreement. Some states require the payment of consideration, while others merely consider it as an important factor for courts to consider when determining whether to enforce the agreement.


I was asked to sign a non-compete agreement after I had already started working for the employer. Is this legal?

Yes. However, whether it is legal for the employer to take adverse action against you – such as firing you or writing you up — for refusing to sign will depend on the circumstances of your case and may depend on whether the agreement the employer wants you to sign is enforceable under the law of your state. Contract law issues in your state may also be a factor in whether an agreement you are coerced or threatened into signing is enforceable. One is whether your employer is required to pay you additional money or give you other consideration as discussed in the previous question.

For example in Ohio, the Ohio Supreme Court held that in the case of an at will employee, continued employment was enough consideration to make the agreement enforceable.


If I have already agreed to a covenant not to compete, can I get out of it?

It depends. The approach of courts to non-compete agreement clauses varies greatly from state to state. Some states are very eager to enforce covenants not to compete and will actively rewrite those which are too broad in geography or time to make them more readily enforceable. Other state courts have taken a very negative view of covenants not to compete and have enforced only those which very clearly were reasonable in geography and in time and which are supported by substantial consideration (the payment of money in return for the agreement.) This approach varies state to state and often depends on the facts of the individual case.

For example in Florida the law supports non-competes, so the facts of your situation, and the state you live in determine where the agreement will be enforced against you.


I had a non-compete in my job, but I was fired. Can they enforce it against me even though they decided to fire me?

It depends. First look at the terms of the non-compete itself. Does it address termination? Assuming it does — and that it says the non-compete still applies even if you are terminated — the next question is: is that legal? Again, the answer is: it depends. If the reason for your termination is employer misconduct – discrimination, illegal activity by the employer or similar misconduct – then most courts have held that a non-compete is no longer enforceable. That is because illegal conduct by the employer was not part of the employee’s expectation at the time he or she agreed to the non-compete. If the reason for your termination is employee fault – attendance, poor performance or similar problems – then the fact that you were terminated will probably not be as significant. Nonetheless, courts may be less eager to enforce a non-compete agreement where it was the employer’s decision to terminate the relationship, not yours.


I had a non-compete in my job, but I quit after they asked me to engage in illegal activity. Can they enforce it against me even though they were doing something wrong?

Probably not. Most courts have held that an employer who is engaged in illegal activity which results in an employee quitting cannot enforce a non-compete agreement against the employee who left for that reason.


If the non-compete agreement I signed is enforced, that means I can't earn a living at all. What do I do?

Courts are very reluctant to enforce a non-compete that is so broad it keeps an employee from working at all. Also, there are courts which have relied on state constitutions to limit the ability of employers to restrict an employee from working at all.


I left my old company to take a job with a new company. The new company didn't tell me that I had a non-compete agreement until I had already left the old job. Does this mean I'm stuck with it?

It depends. There may be claims you can make against the new employer for not telling you up front that this was a requirement. These claims will vary from state to state and may depend on the enforceability of the non-compete.


All of us here at work have non-compete agreements, but the company has never enforced them when someone leaves. Does that mean I can just ignore it?

Legally no, but it may give you a hint that the employer does not see the cost and risk of trying to enforce the agreement as worth it. It may also be that the employer has decided the agreement is probably not enforceable anyway. That is no guarantee the employer will not try and enforce it in your case, unfortunately. Before you deliberately choose to violate a non-compete agreement to which you are subject, consult a lawyer who can go over the agreement with you and help you assess an appropriate course of action.


Our company was bought out by another company, and now we're told that we're subject to non-compete agreements. Can the new employer enforce the agreement against us?

Probably not. Most courts require that you affirmatively agree to the terms of a non-compete – such as by reading and signing it. It is usually not enough for that the employer to just tell you it is there for you to be bound by its terms.


If I violate the non-compete agreement by leaving my employer to go work in the same industry, what can happen to me?

If you choose to leave an employer with whom you have a covenant not to compete, the employer may do nothing. In this case be sure to come to some kind of agreement with the employer so you can do what you want. Additionally be sure to get the employer to release you from your non-compete agreement with a signed document.

On the other hand, the employer may sue you and go to court seeking what is called an “injunction” or restraining order to prevent you from violating your agreement. Because a violation of a non-compete agreement can cause an employer immediate harm, the court will often use expedited procedures in these cases. Once your employer requests an injunction or restraining order it may only be a matter of days or weeks before you have a hearing scheduled before a judge. You may have very little time to retain an attorney and discuss your case with that person, so make sure that you enlist the help of an experienced employment lawyer as soon as you know that your employer is challenging your actions.


What happens at the hearing?

At the first hearing the court may make a temporary decision to stop you from doing to challenged activity or decide that what you are doing is ok for the time being. A temporary order will only be effective until you come back to court for a more complete, and usually more lengthy trial to decide the matter finally. Alternatively, depending on the facts of your case and your state’s procedures, your first hearing may be the final hearing. The court will hear evidence from you and from your employer and decide whether to issue an order stopping you from engaging in the challenged activity or to deny your employers request and leave you free to continue the challenged activity.


What happens if the court grants the injunction requested by my employer?

If an injunction is granted by the court, this is a legal remedy which can stop you as an employee from working. It can cause you to lose your ability to be employed in violation of the covenant not to compete for whatever period of time the court sets. This can last for months or years until the court reaches a resolution of the final decision on whether the covenant not to compete which the employee signed is actually enforceable or not. Of course, practically speaking, most employees can’t wait months or years without the ability to earn a living, so the T.R.O. hearing is effectively the trial in most cases.


Will I have to pay any money to my employer if I lose?

Probably. Your employer can also seek what is called “liquidated damages” if those are set forth in the non-compete agreement. Liquidated damages are a set sum that the employer and employee agree to as damages if the employee breaches the covenant not to compete. Not all liquidated damages are enforceable under the law, however. This too depends on the facts of each case and the law of each state.

Additionally, the employer can seek any actual damages or losses which they claim have occurred because the employee left in violation of the covenant not to compete – this could include lost profits from customers, the loss of secret employer information and similar losses.


Is there any other way to find out if the agreement is enforceable?

In most states the answer is yes. Most states provide a mechanism for testing the enforceability of a contract. This mechanism is called declaratory judgment. Depending on the availability of this remedy in your state and the tactics involved in each individual situation, it may make sense for the employee to bring a declaratory judgment action asking the court to determine whether the agreement is enforceable. There are many practical and tactical considerations involved in deciding whether or not you as an employee should initiate a declaratory judgment action challenging a covenant not to compete. No one-size-fits-all answer applies to this issue.

In the sale of a business, it is typical for a purchaser to include in a contract for sale the requirement that the seller does not engage in the same type of business within a certain geographic area for a certain period of time. Whether these types of non-compete agreements are enforceable or not and the degree to which courts will enforce them varies greatly from state to state.


I'm in the process of negotiating a non-compete agreement. Are there certain things that I should be asking for?

The best thing would be to not have a non-compete agreement at all. Failing that, you should try and limit it as much as possible in geographic scope and in duration. Limit it narrowly to the area the employer is really concerned about you working in – not the whole industry or line of work. For instance, you might ask that the limitation is to the area of clothing retail if you work in a clothes store, versus retail generally, which would cover a very broad range of possible jobs that are truly unrelated. The goal is to limit the agreement to what is necessary to protect the employer. You should also consider asking for severance pay in the event of an involuntary termination.

Whether an agreement is likely to be valid depends greatly on the analysis of state law as applied to the specific facts of you and your employer’s situation. With so much potentially at stake, if you have any concerns at all about an agreement, it would be wise to consult with a lawyer who is familiar with these types of agreements. Guessing wrong about the validity of the agreement could seriously affect your ability to work and could cost you a lot of money, so you want to proceed carefully.

Non-Disclosure Agreements (NDA’s)


What is a non-compete agreement?

Non-compete agreements, also known as covenants not to compete or restrictive covenants, are quite common in employment agreements, employment applications, and in contracts for the sale of businesses. The general purpose of these agreements is to restrict the ability of employees who sign the agreement to go into business against the employer within a certain geographic area for a certain period of time. If you sign it, typically you are agreeing that you will not compete with your employer by engaging in any business of a similar nature, as an employee, independent contractor, owner, part owner, significant investor, and whatever other forms of competition your employer identifies to cover its bases.


When may I be asked to sign an NDAs?

There are typically three points during your employment relationship when you may be asked to sign an NDA.

  • You may be asked when you are hired to sign an NDA, to keep the company’s trade secrets or business strategies confidential. An NDA and a non-compete agreement [link] limiting who you can work for in your next job may be contained together in the agreement you sign when you are hired.
  • If you are terminated, you may be asked to sign an NDA in exchange for a severance payment. Since employers are generally under no legal obligation to provide a severance agreement, this strategy is designed to prevent you from disclosing the terms of the severance and possibly that you received one at all. The severance agreement may also contain a release limiting the conditions under which you can file a lawsuit against the company.
  • Employers often use NDAs to keep the terms of settlement agreements confidential, which may also have the effect of preventing toxic practices within their workplace, including sexual harassment, from being exposed or known to other employees who may have similar experiences.


What am I agreeing to do when I sign an NDA?

The specific terms of an NDA will differ depending on the circumstances. The information that may be covered by an NDA is virtually unlimited. Generally, by signing an NDA, you promise to not release the confidential information shared with you by your employer.


Why are NDAs often used with victims of sexual harassment or sexual assault in the workplace?

NDAs are often used to stop the victims from speaking out. They are included in settlement agreements and prohibit victims of sexual harassment or assault from publicly discussing the settlement and what happened to them. Many victims fear the legal action that may be taken against them if they violate the terms of their agreements.

No survivor is obligated to share their story. Some survivors prefer to keep the harassment or assault private and willingly enter into an NDA. However, NDAs can have significant consequences. For example, the NDAs used in sexual harassment cases can enable the person or company to repeat the same harassment and assault for decades by silencing victims from warning other’s about the behavior.

Pending bills in state legislatures across the country, currently including in California, New York, and Pennsylvania, would prohibit employers from requiring employees to sign agreements that block them from exposing alleged workplace sexual harassment.

If you are a victim of sexual assault or harassment in the workplace and you have signed an NDA, you may still be able to break your silence. Because NDAs can differ, you should consult with an attorney to discuss whether you will be vulnerable to legal action for violating settlement terms or for defamation.


What if I break the terms of my NDA?

What may happen after you break the terms of an NDA may depend on what’s in your agreement. Take a look at the agreement you signed, what information it relates to, and what the consequences of breaking the agreement are. Quite often, in practice, many companies do not go after NDA violators, because doing so risks bringing even more attention to an often egregious workplace issue. However, it is also a likely scenario that your employer may be able to claim breach of contract and take legal action against you.

You should consult a lawyer before breaking the terms of an NDA. If you’re bound by an agreement not to disclose trade secrets, there is a chance that the language could be construed to cover any public statements about what happens in the workplace, although it’s not yet clear whether that argument would hold up in court.


When would I be asked as an employee to sign an NDA?

As an employee, you may be asked to sign an NDA as a condition of employment, as part of a severance package, as part of a settlement agreement or in a personal context.


What terms should I look out for in an NDA?

· Be cautious of an overbroad agreement that seems to be less about protecting confidential company information and more about forcing employees to be silent about everything regarding the company.

· Check for liquidated damages provisions which specify a cash amount an employee must pay per breach of an NDA. If the number is very high, it may create a dynamic where employees are terrified to come forward even about illegal company behavior because they are afraid of being sued. Courts may throw out a provision where the damages/penalties for violating the agreement are much greater than the harm caused to the company when the agreement is violated.

· Time limits that go on for your entire lifetime are overreaching and should raise a red flag. They may be considered reasonable by a court if they are for a shorter period of time, but that will vary by state.

· Forced arbitration clauses or clauses requiring private and confidential arbitration rather than in a public court of law. While those clauses may be legal to include, you should be aware of what they mean.

If what you are told is different from what you see in the written agreement, you need to clarify before signing because the written agreement is binding. Additionally, if the NDA prevents you from bringing discrimination or harassment claims to the proper authority than the NDA is unenforceable.

If you are unsure about the terms of your agreement, you should speak with a lawyer for further clarification.


Can I negotiate the terms of an NDA?

Sometimes, yes. If you are asked to sign an NDA, you can ask to modify it, but an employer may or may not be receptive to this suggestion. If you can change the NDA, you may consider adding the following provision:

“Nothing prevents [Your Name] from using his/her own generalized skill, knowledge or expertise that he/she already had, or is publicly available.”

Including this clause in an NDA puts the burden on the employer to prove what you already knew in the case of an alleged breach.


What cannot be protected (required to be kept confidential) by a Non-Disclosure Agreement?

· Anything that is a matter of public record

· Any information that employee has prior knowledge of or gained from sources other than their employer

· Any information that is common knowledge in a field

Additionally, an NDA is not meant to protect a company from doing something illegal. If your company has unethical or illegitimate business practices, you still have a right to whistleblow (inform) to proper authorities.

An NDA also cannot prohibit an employee from filing a sexual harassment complaint with the Equal Employment Opportunity Commission.


Are there different types of NDA’s?

Yes, there are two types; unilateral and mutual.

A unilateral NDA is more commonly used. It is used when a business or employer discloses information to their employee, and the employee receives the information and agrees to keep the information confidential.

A mutual NDA is used when the two parties agree keep confidential each other’s information. The mutual NDA is generally used between businesses.


In addition to signing an NDA, my employer has included a nondisparagement clause. How is this different from an NDA?

A nondisparagement clause generally prevents an employee from saying anything negative about the company, even on social media. Nondisparagement clauses have gained popularity in the startup world where they are often used to hide the sexist culture in the tech industry. If you are subject to a nondisparagement clause, it is best not to publicly discuss your employer, and especially not online, where proof of your comments could be saved as evidence of a violation. Consult with an attorney to review the agreement before speaking out, even anonymously.


I have heard the new tax law could have negative consequences for victims of sexual harassment and assault who have settlements conditioned on NDAs. What are these negative consequences?

Section162(q) of the new tax bill was originally intended to stop businesses/employers from being able to deduct sexual misconduct settlements conditioned on NDAs, however it currently states, “no deduction shall be allowed under this chapter for—(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a non-disclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.”

Some have interpreted this statute to apply to both businesses and individuals. Therefore, under this language of this statute, victims of workplace sexual assault or harassment who settle their claims subject to an NDA, would be prohibited from deducting the portion of their settlement allocated for attorney’s fees, and would have to pay taxes on the entire amount they were given for the settlement.

As a result of this uncertainty, Sen. Robert Menendez has announced plans to introduce legislation clarifying that §162(q) is meant to apply only to businesses/employers. In the meantime, you should consult with a tax attorney or accountant knowledgeable in this area to determine what amounts of your settlement payment are deductible.

 

Salary History Disclosure


If I meet the qualifications of the job, do they have to offer me an interview?

No. Employers may legally choose whom they extend an interview offer to; however, it is illegal for employers to refuse to interview based on forms of discrimination that are prohibited by law. Thus, it is illegal for an employer to refuse to interview you because of your religion, race, national origin, sex, age, or disability. Nonetheless, employers do not have to tell you why they are choosing not to interview you.