Edward Sharkey's blog

Is My Social Media Policy Legal?

Posted by Edward Sharkey on Thu, 02/09/2017 - 05:00

Even small employers are getting wise to the prudence of solid employment policies. This includes implementing policies concerning social media. Businesses are trying to be practical about protecting valuable assets, like their brand and confidential information. At the same time, government regulators are acting aggressively in challenging efforts to restrict employee use of social media.

Have You Ever Waived “Consequential Damages” in a Vendor Contract?

Posted by Edward Sharkey on Wed, 02/08/2017 - 05:00

One thing we see all the time when reviewing clients’ vendor service contracts is a “waiver of consequential damages” for breach of the contract. I have never met a client who knows what this means. Most lawyers do not know. Buyers rarely think about it because it is boilerplate and common. A recent lawsuit involving a service contract highlights the substantial risks of waiving consequential damages.

Can the Government Restrict the Confidentiality Term in My Settlement Agreement?

Posted by Edward Sharkey on Wed, 12/07/2016 - 05:00

Confidentiality is key when resolving claims in the employment context. In fact, sometimes it is the most important part of a settlement or severance agreement. Recently, federal regulators have decided the business world needs feedback on how much confidentiality is reasonable. The government is concerned that some confidentiality provisions may discourage employees from participating in certain protected activity - like whistleblowing.

Small Businesses Struggle With Pending Changes to Overtime Law

Posted by Edward Sharkey on Wed, 10/05/2016 - 04:00

Small businesses are running out of time to become compliant with the new overtime rule announced by the Obama administration last summer. The Department of Labor has confirmed the rule, making it final, and it will go into effect on December 1. The National Federation of Independent Business (NFIB) is pushing for a delay, contending that many small businesses are not ready.

The Most Common Way Employers Get in Trouble with the EEOC

Posted by Edward Sharkey on Mon, 03/28/2016 - 04:00

The EEOC recently released its annual report detailing enforcement and litigation data for 2015. Employer retaliation topped the list of most common charges, representing 44.5% of all charges filed. The EEOC is currently working on new guidance for employers on the topic of retaliation.

Whatever You Say Can, And Will, Be Used Against You

Posted by Edward Sharkey on Fri, 03/04/2016 - 05:00

What tops my list of most useful legal advice for business owners? Other people record you a lot more than you know. This includes customers, employees, and counter-parties. And a recent verdict from Fairfax County, VA illustrates the potential cost. A patient who was ridiculed by his doctors while under anesthesia was awarded $500,000 by a jury.

Would the EEOC Like Your Employment Test?

Posted by Edward Sharkey on Wed, 02/10/2016 - 05:00

A lot of businesses test prospective employees. Pre-employment tests typically assess cognitive skills, personality traits, and language proficiency - all sorts of information that a reasonable business would want to know before adding a person to their team. Intuition or common sense, however, is not the legal standard. The EEOC looks at such tests pretty closely. They are interested in whether a test could have an outsize impact on any group protected by Title VII of the Civil Rights Act.

What Does the DOJ Say About Responding to Data Breach?

Posted by Edward Sharkey on Thu, 01/28/2016 - 05:00

We previously posted about the importance of developing cybersecurity policies that include early detection mechanisms and thorough response plans. That post highlighted the potential damages that a business could be liable for if it is the victim of a data breach. These damages range from the expense of notifying affected individuals to the intangible harm done to its reputation.

Can a business weed out convicted felons when hiring?

Posted by Edward Sharkey on Thu, 10/22/2015 - 15:33

We frequently post about the EEOC’s campaign against employers who use criminal background checks during hiring. Apple recently came in for national criticism for their policy prohibiting convicted felons from working on the construction of the company’s new 2.8 million square foot campus. Prior felony convictions cost several construction workers their jobs on the project. Is there a prohibition against weeding convicted felons out of your hiring pool?

The Perils of Hiring for "Fit" or "Culture"

Posted by Edward Sharkey on Mon, 09/07/2015 - 04:00

Did you ever make an employment decision based on a candidate's "fit" with your culture? Did you ever ask yourself, "Can I see this person here?" Or rely on a gut feeling? Did you ever assess an employee for promotion by thinking, "How well does this person get along with the team? Will they fit with the rest of the leadership?"

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