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EEOC Attacks Common Severance Agreement Language

By Bryan E. Pieper The U.S. Equal Employment Opportunities Commission (“EEOC”) has filed a lawsuit against CVS Pharmacy, Inc., claiming that a severance agreement CVS has employees sign violates the employees' rights to communicate with the EEOC and to participate in EEOC investigations. Click here for the full lawsuit. Many of the provisions targeted by the EEOC are considered fairly typical in employee severance agreements. As is common in severance agreements, the employer, CVS, agrees to give the employee severance benefits, conditioned on the employee making certain promises in exchange. The EEOC takes issues with those required promises, specifically identifying the following provisions:

    • The employee releases any and all claims he or she may have against CVS;
    • The employee agrees not to file any claims again CVS in any court or agency;
    • The employee agrees not to make any statements that disparage CVS or its business;
    • The employee agrees not to disclose to any third party any of CVS's confidential information, which is defined to include personnel information;
    • The employee agrees to cooperate with CVS by notifying CVS promptly if the employee is contacted regarding any lawsuit or administrative proceeding against CVS; and
    • If the employee breaches the severance agreement, CVS will be entitled to an immediate injunction, and the employee will reimburse CVS for any attorneys’ fees incurred enforcing the agreement.

In its Complaint, the EEOC asserts that the combination of the above provisions deprives an employee of his Title VII right to participate in and cooperate with an EEOC investigation and enables an employer to conceal a pattern of discrimination by thwarting the EEOC's ability to learn about and investigate employment discrimination. The EEOC alleges that in 2012, more than 650 individuals signed the CVS severance agreement. "Charges and communication with employees play a critical role in the EEOC's enforcement process because they inform the agency of employer practices that might violate the law," explained the EEOC’s lead attorney on the case. "For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make." Click here to read the EEOC's full press release. The EEOC asked the court to do the following:

    • • Enjoin CVS from continuing to use the current version of the severance agreement;
    • • Reform the agreement to comply with Title VII, both for individuals who have already signed it and for those who sign it in the future;
    • • Require CVS to issue a corrective communication informing its workforce of its right to file an EEOC charge and to initiate and respond to communication with the EEOC;
    • • Require CVS to provide its management with additional training regarding an employee's Title VII right to file charges and participate in EEOC investigations; and
    • • Provide a window of 300 days for any former employee who has signed the severance agreement to file a charge of discrimination with the EEOC.

Because employers typically enter into severance agreements and pay severance pay in order to get the peace of mind that they have made a clean break with an employee, the agreement provisions discussed above are rather common. This clean break is often essential to an employer’s willingness to provide non-mandatory severance benefits in the first place. However, the EEOC contends this lawsuit is part of its new emphasis on attacking systemic patterns of discrimination and the methods employers use to protect and hide them. This is consistent with the EEOC's practice of using investigation of an individual charge of discrimination as an opportunity to look for class or group claims, which would be difficult if all former employees are bound to silence. Employers are encouraged to have their current severance agreements reviewed by counsel and to keep an eye on this case as it progresses through the courts.

EEOC Attacks Common Severance Agreement Language

By Bryan E. Pieper The U.S. Equal Employment Opportunities Commission (“EEOC”) has filed a lawsuit against CVS Pharmacy, Inc., claiming that a severance agreement CVS has employees sign violates the employees' rights to communicate with the EEOC and to participate in EEOC investigations. Click here for the full lawsuit. Many of the provisions targeted by the EEOC are considered fairly typical in employee severance agreements. As is common in severance agreements, the employer, CVS, agrees to give the employee severance benefits, conditioned on the employee making certain promises in exchange. The EEOC takes issues with those required promises, specifically identifying the following provisions:
  • The employee releases any and all claims he or she may have against CVS;
  • The employee agrees not to file any claims again CVS in any court or agency;
  • The employee agrees not to make any statements that disparage CVS or its business;
  • The employee agrees not to disclose to any third party any of CVS's confidential information, which is defined to include personnel information;
  • The employee agrees to cooperate with CVS by notifying CVS promptly if the employee is contacted regarding any lawsuit or administrative proceeding against CVS; and
  • If the employee breaches the severance agreement, CVS will be entitled to an immediate injunction, and the employee will reimburse CVS for any attorneys’ fees incurred enforcing the agreement.
In its Complaint, the EEOC asserts that the combination of the above provisions deprives an employee of his Title VII right to participate in and cooperate with an EEOC investigation and enables an employer to conceal a pattern of discrimination by thwarting the EEOC's ability to learn about and investigate employment discrimination. The EEOC alleges that in 2012, more than 650 individuals signed the CVS severance agreement. "Charges and communication with employees play a critical role in the EEOC's enforcement process because they inform the agency of employer practices that might violate the law," explained the EEOC’s lead attorney on the case. "For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make." Click here to read the EEOC's full press release. The EEOC asked the court to do the following:
  • • Enjoin CVS from continuing to use the current version of the severance agreement;
  • • Reform the agreement to comply with Title VII, both for individuals who have already signed it and for those who sign it in the future;
  • • Require CVS to issue a corrective communication informing its workforce of its right to file an EEOC charge and to initiate and respond to communication with the EEOC;
  • • Require CVS to provide its management with additional training regarding an employee's Title VII right to file charges and participate in EEOC investigations; and
  • • Provide a window of 300 days for any former employee who has signed the severance agreement to file a charge of discrimination with the EEOC.
Because employers typically enter into severance agreements and pay severance pay in order to get the peace of mind that they have made a clean break with an employee, the agreement provisions discussed above are rather common. This clean break is often essential to an employer’s willingness to provide non-mandatory severance benefits in the first place. However, the EEOC contends this lawsuit is part of its new emphasis on attacking systemic patterns of discrimination and the methods employers use to protect and hide them. This is consistent with the EEOC's practice of using investigation of an individual charge of discrimination as an opportunity to look for class or group claims, which would be difficult if all former employees are bound to silence. Employers are encouraged to have their current severance agreements reviewed by counsel and to keep an eye on this case as it progresses through the courts.

James Crumlin and Alex Little will Address Mobile Device Policies in the Workplace During Conference

Bone McAllester Norton attorneys James A. Crumlin, Jr. and Alex Little will serve as the faculty during an audio conference presented by Center for Competitive Management. The conference,“BYOD, CYOD, MBYOD or COPE? Advantages, Disadvantages and Compliance Complexities,” will address workforce policies regarding mobile devices and what new measures corporations will take to mitigate challenges posed by new media. The attorneys will address data security, usage rules, privacy issues, technical and administrative strategies and employee exit challenges. The conference is approved for 1.25 recertification credit hours toward PHR and SPHR recertification.

A well-known employment lawyer, James has represented management on issues arising from the employment relationship, including union and on-union arbitration and all forms of employment discrimination litigation. Alex, a former Assistant U.S. Attorney for the Middle District of Tennessee, has a particular passion for solving problems at the intersection of criminal law and technology.

The audio conference will take place from 1 to 2:15 p.m. on Wednesday, March 5. For more information and to register, click here.

 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment, environmental matters, criminal defense and government investigations and labor and employment. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, call 615-238-6300 or visit www.bonelaw.com.

Anne Martin Honored by 2013 Mid-South Super Lawyers

Congratulations to Bone McAllester Norton attorney Anne C. Martin, who was honored in the top 100 Tennessee attorneys and the top 50 women attorneys in the mid-south in the 2013 Mid-South Super Lawyers list.

Mid-South Super Lawyers are selected through a multi-phased process, which includes independent research, peer nominations and peer evaluations. The list is produced by Super Lawyers, a national rating service that includes more than 70 practice areas.

Anne concentrates her practice in the areas of commercial litigation and employment law, representing both employers and employees. She represents many different companies and individuals with a variety of business problems.

 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment, environmental matters, criminal defense and government investigations and labor and employment. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, call 615-238-6300 or visit http://www.bonelaw.com

Anne Martin Slated as Presenter at Rural Healthcare Summit

Bone McAllester Norton attorney Anne C. Martin will speak at HealthTech Management Service’s Rural Healthcare Summit this fall. Anne will join a human resources manager and two other attorneys for the human resources forum, where she will present practical advice about not only how to technically ensure you are in compliance with legal requirements but also ensure you are communicating most effectively and appropriately with employees. Rural Healthcare Summit is scheduled for September 8-10 at the Doubletree by Hilton Nashville Downtown.

For more information on the summit, click here.

 

Bone McAllester Norton PLLC is a full-service law firm with 35 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Anne Martin Talks to the Tennessean about Paid Sick Time in the Workplace

Bone McAllester Norton attorney Anne C. Martin discussed the issue of whether employers should provide paid sick time to employees with the Tennessean. In the July 5 article, Martin noted, “Most employers are trying to do the right thing and recognize that people need sick time.” For more on this story, click here.   Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Risks When Employees Bring Their Own Devices to Work with James Crumlin

Bone McAllester Norton attorney James A. Crumlin authored an article for the Nashville Chamber of Commerce that was included in their “HR Notes” enewsletter, sent out today. “In today’s bring-your-own-device (BYOD) era, employees’ use of their cell phones, on or off the clock, can make the company potentially liable for any laws broken using the device.”

Read more about the risks and what companies can do to safeguard themselves here.

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.  Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

 

James Crumlin: 4 Risks When Employees Bring Their Own Devices to Work

Inc.com interviewed Bone McAllester Norton attorney James A. Crumlin on the risks companies face when employees bring their own devices to work. Once a device is used to perform work, employers have the right to the information on it—and they can be held accountable for any laws broken through its use.

What are the four risks companies may be susceptible to as a result of employees using their own mobile devices? Read the article here.

 

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.  Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Paz Haynes to Discuss “Keys to Contractual Agreements” at the Metro Nashville Office of Minority and Women Business Assistance

Bone McAllester Norton attorney William J. (Paz) Haynes III is slated to deliver a course about contractual agreements to the Office of Minority and Women Business Assistance (BAO), part of Metropolitan Nashville Davidson County Government, at 10 a.m. on Wednesday, May 22, 2013. This course will provide suppliers with a basic understanding of contractual agreements and will assist small, minority and women-owned business owners the importance of what items to look for and include when negotiating contracts with prospective clients.

Paz concentrates his practice in the areas of labor law, litigation and dispute resolution. In the course of his practice, Paz has represented manufacturers, insurers, lending institutions, small businesses and individuals in a variety of matters.

The course will be held at the Howard Office Building on 2nd Avenue North in Nashville. For more, click here.

 

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.  Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

James Crumlin Discusses How to Keep Employees’ Smartphone Use Out of Legal Jeopardy

Bone McAllester Norton attorney James A. Crumlin recently spoke with Visage Mobile on the relationship employers have with their employees’ smartphones. Because of the rise in court cases involving companies being sued when employees misbehave on mobile devices, attention on the topic is hot. As James explains, “. . .it might be your [the employee’s] device, but there is company information that is going to it and, because of that, the company is entitled to look at the device.”

 

 

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Larry Bridgesmith Joins Bonelaw as Of Counsel

We welcome attorney Larry Bridgesmith to Bonelaw. Larry will serve as Of Counsel in the area of Labor and Employment.  Before joining Bone McAllester Norton, Larry was Of Counsel at Miller & Martin, PLLC.

“I have known Larry for years. We are pleased to have him join us with his experience in Labor and Employment law, as well as conflict resolution and legal project management,” Mr. Bone said.  “He will be a great asset to our clients and our other attorneys, and we welcome him and his clients to the firm.”

Larry is also the Founding Executive Director, Senior Fellow and Associate Professor at the Institute of Conflict Management at Lipscomb University. He recently co-founded a technology company called ERM Legal Solutions that provides legal project management solutions to law firms and legal departments.  Larry’s expertise in dispute resolution processes has led to appointments by the American Bar Association Dispute Resolution Section as co-chair of task forces in Health Law and International Dispute Resolution.

He earned his juris doctorate degree in 1978 from Wayne State University Law School and his Bachelor’s degree and Master’s degree from Oakland University in Rochester, Michigan. Larry and his wife, Linda have been married 44 years and have 2 children, Lara and Lance and 5 grandchildren.