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Garden Leave Clauses In Lieu of Non-Competes

The Spring 2009 issue of Weil, Gotshal & Manges’ Employer Update is now available.

The issue contains articles on the following topics:

  • The proposed Employee Free Choice Act, introduced in both houses of Congress on March 10, 2009, which would constitute the most significant change to federal labor law since 1935;
  • An analysis of the Lilly Ledbetter Fair Pay Act of 2009, including a review of the key legislative history, implications of the law to employers, and some suggested steps employers may wish to take to mitigate new litigation risks created by the law;
  • The Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville & Davidson County, clarifying the scope of Title VII's anti-retaliation provision to include protection of those employees who speak out about discrimination not on their own initiative, but in answering questions during an internal investigation, in addition to an analysis of certain issues this decision raises for employers in preparing for and conducting internal investigations;
  • The "cat's paw" theory of employment discrimination liability, where a biased subordinate employee causes his or her superiors unwittingly to carry out his or her own discriminatory plan, and the unique risks for employers posed by this theory in a time marked by widespread workforce reductions;
  • The New York Appellate Division First Department's decision in Williams v. New York City Housing Authority, which created a standard more favorable to plaintiffs asserting claims of sexual harassment under the New York City Human Rights Law than exists under federal anti-discrimination law;
  • The impact of an employer’s insolvency on employment law in Germany, including reduced obligations on employers with respect to notice periods for terminations and severance payments;
  • The newly amended regulations under the Family and Medical Leave Act, which went into effect in January 2009, including revisions to the existing regulations with respect to notice, eligibility, and the recently enacted Military Family Leave provisions;
  • "Garden leave" clauses in employment agreements, an alternative to non-competition agreements for employers who wish to protect against both competition and misappropriation of confidential business information;
  • The Seventh Circuit’s decision in Hecker v. Deere & Co., which is the first appellate decision to address the duties of ERISA plan fiduciaries to control mutual funds fees charged to plan participants, and which rejected several theories commonly advanced by plaintiffs concerning allegedly improper "revenue sharing" and "excessive fees" under ERISA; and
  • New York's enactment of four new statutes, three of which impose notice requirements on employers regarding the rights of applicants or employees with criminal conviction histories, and one of which encourages employers to employ or retain such individuals by granting employers additional protection against negligent hiring and retention claims.

As always, please contact the author of an article or your contact at Weil Gotshal for more information.

The Spring 2009 issue of the Employer Update is available here.

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