The fact that even members of the bar get themselves into trouble underscores just how arcane and complex employment law compliance can be.

Here's the latest lawsuit we've found.  It involves an Ohio firm that got caught failing to pay overtime to a secretary.  Their reason?  She was paid by "salary."  As we've said before, and doubtless will again, the fact that you call someone's compensation a salary doesn't make it so, and you may still be liable to pay time and a half for weekly hours worked over 40.

Here's the link to the Lawyer's Weekly article.

This post from the Blog of Legal Times lays out the basics.  Plaintiff sued in state court; the employer removed the case to federal court and filed an answer.  Six months later the plaintiff decided that she wanted to dismiss the complaint voluntarily and filed a motion to do so.  The court denied the motion, on the procedurally correct ground that that once an answer is filed a case cannot be dismissed unilaterally by the plaintiff.  Thus, the order forced the action to continue. 

Here the story gets fuzzy.  It's not clear whether the court denied plaintiff's motion to dismiss for some deficiency in her application, or because the defendant objected to the dismissal.  If the latter, why would a defendant turn down a "get out of jail free card" in the form of a voluntary dismissal?  They might, I suppose, just be trying to make the plaintiff or her attorney sweat a bit.  But another possibility is that, because an age discrimination case is a fee-shifting case, the defendant may think that  it will prevail on the merits and can force the plaintiff to pay their attorney's fees.  It's rare for courts to award counsel fees in favor of defendants, but it does happen occasionally.  If that is what's in play (and I admit that I'm speculating), the litigation could be financially catastrophic for the plaintiff.  Few individuals --- and especially those who have lost their jobs --- have the financial resources to reimburse the hundreds of thousands of dollars that defendants routinely spend to defend discrimination cases.  Talk about shooting yourself in the foot.

So for plaintiffs and their lawyers, it's important not to start a fight precipitously.  Once you start the boulder of litigation rolling down the mountain, you may not be able to stop it without getting crushed.

Max Kennerly in his Litigation & Trial blog takes a more scholarly look at the implications of the Hertz decision.  He notes, correctly, that there was an element of "administrative simplicity" inherent in the court's decision.  And there is, I suppose, a virtue in that.  There's now undeniably one rule that should not be difficult to apply in practice.

If you believe that federal courts should have more power to decide cases, you'll look at that one way.  If you think that state courts are the preferred forum, you'll probably think differently. Whatever your belief, it's what all litigators now must deal with.  And note, too, that even though the Court's decision was made in the context of an employment litigation, it will govern all business-related cases that involve the question whether the court can assert diversity jurisdiction, directly or through removal, over a corporation.

The crux of the decision is that the principal place of business will usually be its "nerve center," the place where is executives and managerial functions are located.  In a word, headquarters.  Here's how Justice Breyer explained it for the unanimous Court:

We conclude that  “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

There's more, but you get the idea.  So from now on, when you think about where a corporation's principal place of business, remember how "nervy" the Court was in making this decision.

Long story short, Chris Botticella was an employee of Bimbo Bakeries, which now owns Thomas', and one of a handful of people who know the secret formula for the nooks and crannies.  (I'm reminded of the crucial ingredient for the "secret rocket fuel" from Rocky and Bullwinkle, but that's just me.)  Botticella accepted an offer to work for rival baker Hostess.  I have some fond childhood memories involving their products, too.

Anyway, Bimbo sued for an injunction to stop Botticella from working for Hostess due to their concern that he would "inevitably disclose" to his new employer the recipe for the secret rocket fuel . . . er  . . . the nooks and crannies, and thus damage Bimbo's business. 

Inevitable disclosure is a doctrine of trade secret law that proceeds from the premise that an ex-employee of one company who knows trade secrets, and takes a job with a competitor, simply will not will not be able to keep his mouth shut in his new job.  It's not as easy to prove as it sounds, but in some cases it works.  Like this one.  The court granted a temporary restraining order and preliminary injunction.  Here's a copy of the order.

This is not my first legal exposure to the great nooks and crannies secret.  Although I've lost the details in the mists of time, I distinctly recall a nooks and crannies TRO application coming before the judge for whom I was clerking back in the late 1970's.

Well, all of this is fine, as long as no one starts stealing the recipe for Butterscotch Krimpets.  Of wait, they were made by Tastykake.  At least Bimbo and Hostess won't be at each other's throats over them.

City of Ontario v. Quon looks to be the decision with the most blockbuster potential.  The question presented is whether employees have a reasonable expectation of privacy in personal text messages transmitted over employer-supplied devices, against a background of a formal no-privacy policy in conflict with a practice that sanctioned personal use.  Although this case involves public employees --- police officers --- it may have implications for all employers, both public and private.

New Process Steel v. NLRB raises an issue of considerable import to labor lawyers and their clients.  The National Labor Relations Board has an authorized strength of five members, and three is generally considered to be a quorum to decide cases.  For the past couple of years, however, the NLRB has had only two sitting members.  During that time they have decided around 400 cases.  The question before the court is whether those two-members decisions were valid.  It's not a clear cut question, and there are good arguments on both sides.  The three circuit courts to have considered the question have split.  If this one goes against the NLRB, it could be a logistical nightmare.

Lewis v. City of Chicago presents the Court with another firefighter qualification test case, like last year's Ricci v. DeStefano.  Lewis deals with the more abstract question of whether the 300 day limit to file a claim with the EEOC runs from the date the test results were announced or the date that hires were made based upon those test results.

Our guess is that right now the Justices are more concerned with staying warm than worrying about employment law cases.  When we have more information on their status, we will let you know.

Actually, it's not that unusual a ruling.  I just couldn't resist the chance for the headline.

I would add to the article's list a few employment-specific reasons to get legal help at an early stage.  These include firing someone, offering severance benefits, and drafting or evaluating non-compete agreements.  My pet peeve is employee handbooks.  As I've ranted before, no matter what you may hear, no matter what "foolproof" generic forms you may find on the internet, in New Jersey drafting an employee handbook is not a game for do-it-yourselfers.  Just get help from the outset.  It's not expensive and you'll save yourself many headaches down the road.

One other point that the article makes deserves emphasis.  Law firms increasingly are moving away from hourly billing, so the days of open-ended legal expense are drawing to a close.  Most lawyers will be happy to work with you to find the most cost-effective way to solve your problem.  Most of us are interested in developing a long-term relationship with you, not maximizing our take on one project.  All kinds of alternatives to hourly billing are being used, and they will give you comfort about the price that you will pay for a service.  Don't be afraid to ask, and don't be afraid to walk away from a lawyer who won't discuss the subject with you.

The facts are simple.  JT's Tire Service is owned by Eileen Tortorello.  JT's sold industrial tires to the United Rental branch in Piscataway starting in 1998.  In 2005 Hinckes, who managed the Piscataway branch, began to pressure Tortorello for a sexual relationship.  She refused and United stopped buying tires from JT's.  Tortorello got United's work back when she agreed to have lunch with Hinckes, but he continued to threaten her with the loss of business.  His advances became physical.  Payments due to JT's from United were delayed, and eventually ceased altogether.

JT's sued under a section of the LAD which makes it unlawful to discriminatorily refuse to do business with another on the basis of sex (among other things).  

The trial court dismissed the complaint on the theory that United's refusal to do business with JT's was not "on the basis of sex."

The Appellate Division reversed and reinstated the complaint.  The court noted that sexual harassment is a form of sex discrimination and rejected the defendant's argument that Tortorello, as the owner of a business separate from United Rentals, did not need protection from sexual harassment.  The court found that quid pro quo sexual harassment violates the LAD even when the victim is not an employee but someone who is doing business with the harasser.

So the next time you get the idea that you can safely make advances to a supplier --- and threaten to withhold business if you don't get what you want --- think again.  At least in New Jersey, it's against the law.

Off-topic, years ago I did some canoeing in Minnesota's Boundary Waters Canoe Wilderness.  The graphic on Marylee's blog got me thinking that it would be fun to stage a return trip.  But I think I'll wait for the summer.

Link here to the Courier-News story on yesterday's annual meeting.

While you're at it, take a look at the Partnership's web site.  It's a terrific organization and one that I'm proud to be associated with.

So in preparing for this, my 300th post on this blog, I was glad to run across this post from Steve Tobak at The Corner Office blog.  I had never seen Steve's blog before, but I'll be back for more.  (Among other things, anyone who admits in public that he likes to drive his wife crazy is my kind of guy!)   Written from the life experience of a non-lawyer executive, Steve emphasizes the need to understand the legal system.  He begins with this provocative statement:

If your career or business is untouched by significant legal matters, then you probably don’t have much of a career or business. We are a nation of laws, and any senior executive or business leader who’s been around will tell you: turn a blind eye to the legal system and you risk everything. Like it or not, that’s the way it is.

Steve lists a dozen broad categories of legal involvement that he's had in his career, employment law among them. 

We lawyers sometimes feel like professional nags, always warning clients about things that may not even be problems --- yet.  It's nice to be validated by someone who's sat on the other side of the desk.  But more important, it's good advice to be prepared.  As Steve said so bluntly: "turn a blind eye to the legal system and you risk everything.  Like it or not, that's the way it is."

Take a minute to read the rest of Steve's thoughts on the subject.  They're short but valuable to anyone in business.