Employment Litigation

Employers occasionally find themselves in litigation with current or former employees.  Sometimes an employer-defendant will uncover communications between the plaintiff-employee and her personal attorney or spouse on an employer-owned email or computer system.

These communications might ordinarily be privileged, but inadvertent disclosure to a third party–in this case, the employer–could waive the privilege if the employee failed to take reasonable precautions to maintain confidentiality.  Many employers maintain policies informing employees that communications on work systems are not private and may be monitored.  Employers seeking to use otherwise-privileged communications in litigation have argued that any asserted employee privilege is misplaced or waived, because the employee had no reasonable expectation of privacy on company systems.

But courts have not always agreed.  The existence of a computer use policy only begins the analysis.  Employers might therefore seek a court’s permission before reviewing or using potentially-privileged communications.  The chances of a favorable ruling improve if some or all of the following occur:
Continue Reading How Email and Computer Use Policies Can Help (or Hurt) an Employer in Litigation

Corporate lawyers negotiating asset purchase agreements believe strongly in the concept of freedom of contract.  Asset purchase agreements invariably have carefully crafted provisions dictating which assets and liabilities transfer to the buyer and which assets and liabilities remain with the seller.

Unfortunately, when it comes to employee and employee benefit liabilities, courts don’t always respect these carefully written contracts.  Courts are loathe to rule against employees or retirees who have lost certain rights or benefits as a result of a transaction, and an unsuspecting buyer can easily find itself responsible for employee-related liabilities that the buyer thought it had avoided.

In a recent example of this “buyer beware” phenomenon, the 7th Circuit held in Teed v. Thomas & Betts Power Solutions that an asset buyer was on the hook for a $500,000 settlement award for violations of the Fair Labor Standards Act (“FLSA”), even though the buyer expressly disclaimed the liability in the asset purchase agreement.
Continue Reading Buyer Beware: Asset Purchaser Liable for Predecessor’s FLSA Liability

Many companies increasingly allow employees to access work networks on their personal mobile devices. Our colleagues at the InsidePrivacy blog recently described a case in which an employer was not entitled to access a former employee’s personal iPhone during discovery in an employment litigation — and what companies might do to avoid this situation. The