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New York

Can we enforce noncompetes against staff we’ve laid off?

05/01/2008
Q. Due to the competitive nature of our business, our sales force signs restrictive covenant agreements that prohibit them from working for a competitor for a six- month period. We are about to lay off some of these employees for lack of business. Is the covenant enforceable? …

What to do when employee claims the 5th

05/01/2008
Q. We are a private corporation. Recently, we discovered some theft in our operation. We called an employee in for an investigatory interview. He claimed to have consulted with an attorney and refused to answer our questions on the grounds that he could not be forced to incriminate himself under the 5th Amendment of the U.S. Constitution. What are our choices under such circumstances?…

Responding to background checks

05/01/2008
Q. Our HR department recently received an inquiry from another employer concerning one of our former employees who was applying for a job. The inquiry contained an authorization and release signed by the employee indicating we could share the information without liability. Should we share it? …

When weighing soft skills, document decisions

04/22/2008
Employers can ask questions about candidates’ subjective qualities, especially when many applicants are objectively qualified. But don’t risk a discrimination lawsuit by carelessly documenting how you arrived at ways to distinguish applicants … 

Rites of spring: The hidden dangers of hiring unpaid interns

04/08/2008

The calendar turns to spring, and you know what’s coming. It’s that time of year when employers are swamped with requests from college students for unpaid internships. The benefits of the symbiotic relationship are obvious. But the legal risks are not …

Track performance improvement plans by protected category

04/01/2008
Employers frequently design performance improvement plans (PIPs) for underperforming employees. But the way managers choose which employees to place on PIPs can have serious consequences. Here’s how to make sure your PIP system is fair—and legal …

You can fire high performers just because of poor attitude

04/01/2008
We’ve all encountered the type: employees who are smart—and know it. They work hard and produce results. But they are so arrogant, so abrasive and so insistent that their way is the right way that they kill morale. You don’t have to keep them on just because they meet or even exceed business goals …

Title VII may apply to some independent contractors

04/01/2008
Title VII of the Civil Rights Act (the legal basis of many discrimination lawsuits) applies to anyone over whom an employer exercises control—that is, dictating the “manner and means” by which the individual performs the job. That means the law may cover even an otherwise independent contractor …

Getting legal advice? Be prepared to show court the details

04/01/2008
Sometimes, despite uncertainty about whether or not discrimination has occurred, you still may have to fire an employee. But what if you turn out to be wrong? Will that mean a huge punitive damages award? Not if you can show that before the decision was made, you consulted an attorney. That’s right: Calling in the lawyers is the best insurance—if you do it right …

Not a close call: Claustrophobia isn’t an ADA disability

04/01/2008
Not every mental or physical condition is a disability under the ADA. Consider claustrophobia. Though the condition, which involves the inability to remain in a confined space such as an elevator, may be a legitimate psychiatric condition, it does not necessarily prevent those who suffer from it from living a relatively normal life …