I have been threatened with a non-compete lawsuit – what should I do?

OK, first of all, take a deep breath.  There is a huge difference between being threatened with a non-compete lawsuit and actually being sued. 

Nevertheless, every such threat compels a response. 

If you have been threatened with a non-compete lawsuit, the first step is to evaluate the threat.  Was the threat a passing remark during your termination?  Did you get a “cease and desist” letter?  Is the letter from an outside law firm?  Is a complaint (formal legal papers initiating litigation) attached?

Next, you need to consider whether the threat is credible.  In other words, do you really think that your former employer is going to follow through on their threat and actually bring an action against you to enforce the non-compete.  There are several specific factors to consider when evaluating this aspect of the threat:

  •   Is the agreement enforceable to begin with?

  •   Has your former employer sought to enforce the agreement before?

  •   Does it make sense for your former employer to seek to enforce the agreement against you?

Third, and finally, you need to decide whether and how to respond to this threat.  If the threat is not credible, sometimes it can be ignored.  If your former employer is clearly bluffing, you can call their bluff.  You can respond aggressively, or respond seeking a compromise.  The most important thing you need to do is to make a specific plan, based on the nature and credibility of the threat, before responding.

 

One important note:  if you get sued for breach of a non-compete, more often than not – even if you win the lawsuit – you lose.  You lose money, you lose focus, and you lose sleep.  Chances are, your company has a lot more money than you.  If they end up suing you for breach of non-compete, you will have to hire a lawyer, and spend countless days and nights working on your defense of this lawsuit.  And, even if you win that lawsuit and the non-compete turns out to be unenforceable, you will still be out thousands of dollars, along with countless opportunities and time.

 That is why our firm specializes in non-compete lawsuit avoidance.

 Granovsky & Sundaresh PLLC specializes in non-compete lawsuits and assisting employees who have been threatened with non-compete lawsuits.  We offer immediate assistance, and offer a flat-fee program where we do everything possible for you in order to avoid a lawsuit.  Call or e-mail for a free initial case evaluation.  You will speak to an attorney within 24 hours.

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Les Moonves & Severance Agreements

Severance agreements arise between employers and employees.  Occasionally, if an employee is terminated, he or she may be offered or entitled to a severance payment.  In return for that payment, the employer will usually negotiate for a release of claims, which generally prohibits the employee from suing the employer.  The severance payment may comprise a week’s pay for every year of employment the employee spent with the employer.  Sometimes, severance agreements are negotiated before employment begins and are contained within employment contracts.  These payouts can include huge sums for some executives.  But does the employer always have to pay the severance amount upon termination? 

The case of Les Moonves provides an interesting glimpse into the world of high-stakes severance litigation.

 The case of Les Moonves

 As many people know, Leslie Moonves ran CBS Corporation for approximately 15 years.  During that time, he was the subject of sexual misconduct allegations, allegations of which the company had been made aware.  In 2007, for instance, it is reported that a member of CBS’s Board of Trustees was informed of a sexual misconduct accusation. 

 As far as the public knows, however, CBS never took any action against Moonves.  He continued in his role of CEO, earned hundreds of millions of dollars in salary and bonuses and was offered multiple contract extensions.  It does not appear that, until more recently, CBS took the allegations against Moonves seriously. 

 Then, in the fall of 2017, the hashtag “MeToo” went viral, spurring silenced women everywhere to expose the sexual misconduct of others, including, in particular, high powered executives.  As the #MeToo exploded, and awareness grew of the epidemic of sexual misconduct, many companies and their executives faced a reckoning. 

 Within a year, 12 women had accused Moonves of sexual harassment or assault.  After CBS conducted an independent investigation, that number had grown to 17 women. 

 What changed between CBS’s first knowledge of Moonves’s alleged misconduct – in 2007 – and its decision (nearly a decade later) to publicly investigate Moonves?  Publicity.  #MeToo had publicized the epidemic of sexual misconduct and began a workplace culture that would no longer tolerate sexual predators.  Once that happened, CBS had a publicity problem on its hands.  Articles abounded with the terms “Les Moonves,” “CBS” and “Sexual Harassment” in the same sentence. 

 CBS was now facing, in addition to the sexual harassment problem it had apparently ignored for years, a bad publicity problem.  Only then did it deliberately and publicly act to remove Moonves from his post.  The timing of Moonves’s termination (after years of knowledge on CBS’s part of the misconduct allegations) leads to the inevitable conclusion that it was the bad publicity, not the sexual misconduct allegations, that began the termination of Les Moonves. 

 The next steps would be crucial for Moonves. According to his employment contract, he was entitled to his severance package if he were terminated without cause.  If he were terminated for any of seven delineated reasons,[1] he would lose that severance entitlement.  Bad publicity is not a listed reason.  If he were terminated for bad publicity, he should be entitled to his severance package.[2]

 Moonves should have taken his severance agreement payout and run (and hid under a rock somewhere).  Instead, he got aggressive.  He allegedly interfered with the investigation by destroying evidence and misleading those tasked to investigate.  He was accused of being “evasive and untruthful” and “to have deliberately lied about and minimized the extent of his sexual misconduct.”[3] 

 By doing this, he made it easy for CBS to deny him his severance because a “willful failure to cooperate fully” with a company investigation and a “willful destruction of or knowing and intentional failure to preserve documents or other material” were specifically included in his contract as “for cause” reasons for termination.[4]  

 Had Moonves cooperated with the investigation (perhaps even negotiating for the results to be kept confidential), he would still have been terminated.  But he would not have been terminated for interfering with an investigation and he could have argued that he was terminated for bad publicity only, thereby entitling him to his severance package.  CBS had known of sexual misconduct allegations against him for years; the corporation only took action once #MeToo made it bad publicity to ignore those allegations. 

 Yet now, Moonves finds himself in arbitration over whether or not he is entitled to his contractually obligated severance.  But he made it easy for CBS – because his interference with the investigation is a clear “for cause” reason to terminate his employment.  As is often the case, the cover-up (at least legally) is worse than the underlying crime. 

 Les Moonves won’t be missed.  At least not by the many women he is accused of harassing (and perhaps many more victims that have not come forward).  But I wonder if he will be missed by the CBS Board who stood by him through horrific allegations until the moment when it became inconvenient.  It would be nice to see CBS donate some (or all) of Moonves’s severance to some sort of charity for victims of abuse, but more than likely CBS will deny any culpability and just throw Moonves under the bus, ignoring the climate and culture that allowed him to survive and thrive at the head of the network while he committed these acts without any consequence, until the moment when it started to make the network look bad.

 

 

[1] Pages 22-23 of his 2017 employment contract list the reasons for which CBS could terminate Moonves “for cause.”

[2] While CBS could argue that bad publicity fell into one of the “for cause” reasons, it would be a difficult argument. 

[3] https://www.nytimes.com/2018/12/04/business/media/les-moonves-cbs-report.html

[4] Page 23 of the 2017 contract.

My former employer accused me of violating my non-compete - what should I do?

OK, so you got a “cease and desist” letter from a lawyer representing your former employer.  The letter threatens to sue you if you don’t turn your entire life upside down.

Oh No - You’ve Been Accused of Violating Your Non-Compete

Relax, your former employer is probably bluffing.  The fact is, non-compete agreements are really hard to enforce.  The trend in the law is against the strict enforcement of non-competes. This is because lawmakers and judges understand that people need to go out and make a living.  And overbroad non-compete agreements prevent people from doing just that. How the heck are you supposed to go out and be a contributing member of society, support your family, pay taxes, etc., if you cannot work?

Just Because You’ve Been Accused of Violating Your Non-Compete Does Not Mean the Non-Compete Is Enforceable

In order to be enforceable, a non-compete must be specific and not overly restrictive.  The broader, and more restrictive the agreement, the less likely it is to be enforced.  In addition, a non-compete agreement must protect the employer’s “legitimate business interests,” like (1) trade secrets or (2) the protection of valuable business relations. Keeping you from working because your former employer is an idiot is not a legitimate business interest.

And, on top of all of that, your non-compete is a contract, so if your former employer hasn’t dotted all of its “i’s” and crossed all of its “t’s”, you could get out on contractual grounds.

In any case, here’s what you should do.  Take a deep breath, dig out your old non-compete, and any employment documents thereafter (especially a severance agreement, if you signed one), and call a lawyer.  We can help you through this.

Call or email any time. We are here to help.

 

I think I'm being discriminated against because of my age - what should I do?

Age discrimination is illegal

Federal and state laws protect employees 40 years and older from being terminated (or suffering certain other adverse actions) because of their age.  The federal law, the Age Discrimination in Employment Act of 1967, states (in part) that it is “unlawful for an employer…to fail to refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age…”  As stated, it is also illegal for an employer to refuse to hire a potential employee because of that person’s age.

I think my employer is about to terminate me because of my age.  What should I do?

 If you feel you are about to be terminated illegally, you should document everything.  Legal cases can take a long time to get through the judicial system and memory fades over time.  While you still can, document evidence of age discrimination. 

 Comments

Evidence of age discrimination can include comments made about older age (including off-handed remarks or jokes).  It can also include comments that indicate a preference for younger employees.  Write down the name of the person who said it, her title, where the comment was said, when the comment was made and the names and contact information of any person who may have witnessed the comment.  Supervisors, managers and owners who make these comments are especially important to remember. 

 Comparable employees

Record the names and contact information of any other employees who may have suffered age discrimination or who may have witnessed age discrimination.  Write down the names and contact information of substantially younger employees who may have been treated more favorably.  Sometimes witnesses want to be helpful and tell their stories; sometimes they don’t want to cooperate and are hard to find, despite having important evidence of age discrimination.  Write down their information now, before you’re trying to find “Cathy something, who sat in the cubicle next to me” two years from now. 

 Written documents

It can be important to preserve documents, such as performance evaluations (particularly those which rate your performance positively), or even performance improvement plans (perhaps those which rate your performance unfairly or held you to higher standards compared to younger employees).  Track down and keep (or make a copy of) any documents that might contain a comment about age; for instance, is there a piece of paper tacked up in the staff room that is joking about an old man?  Take a photo of it; it may have seemed funny at one point but it could be evidence of age discrimination later. 

 Retaliation

Have you told your employer that you think you or a co-worker is being discriminated against because of age?  If so, document that information (for example, when you complained, to whom you complained, what the response to your complaint was).  Has your employer retaliated against you because of your complaint of age discrimination? 

 I think my employer terminated me because of my age.  What should I do?

Much like the steps above, document everything that you can remember right now: write down the comments, look up the contact information for potential witnesses and preserve written documents.  Gather the information you still have or that you can still obtain, such as performance evaluations.  There are allegations in other age discrimination cases that an employer altered an otherwise favorable performance evaluation; sometimes employers ‘can’t seem to find’ those great evaluations after the termination.  Whatever you can do now to preserve evidence of age discrimination, do it.

You should also be careful about signing any documents, such as severance agreements or exit interviews.  Do those documents contain a release of claims?  Are you giving up your right to file an age discrimination complaint?

Bringing an age discrimination claim

The legal process can be tricky.  Where will you file your age discrimination claim?  Can you file with the Equal Employment Opportunity Commission?  Should you?  Are you required to?  We can answer all your questions about age discrimination and the legal process.  Call or email any time; we’re here to help you. 

What is an Employee Arbitration Agreement?

When an employee starts a new job, his employer may ask him to sign multiple documents.  These documents can include an employee contract, a receipt of an employee handbook or even an acknowledgement of corporate policies.  Sometimes, an employer will include an employee arbitration agreement within those documents.  The employee arbitration agreement can be a stand-alone document or it can be buried within a document, such as the employee handbook.  Regardless of how the agreement is presented, if an employee signs that document, he is most likely agreeing to arbitrate most legal disputes.   

What is an employee arbitration agreement? 

Typically, an employee arbitration agreement is an agreement between the employer and the employee to bring any legal claims that may arise between the two parties to arbitration, rather than to court.  An employee arbitration is a legal proceeding; it is conducted by an arbitrator, a private citizen (i.e. not elected or appointed) who is often times a lawyer herself. 

A claim in arbitration proceeds much in the same way as if the claim were in the court system.  The parties can conduct discovery, take depositions and file motions.  The arbitrator decides any disputes between the parties, just as a judge would.  Should the case proceed to trial, that trial takes place in front of the arbitrator, in a neutral location.  The arbitrator’s decision after the trial is final and binding. 

Is employmee arbitration preferable to filing a court case? 

Currently, courts are strongly in favor of parties arbitrating their claims rather than pursuing them through the judicial system.  This is because arbitrations conserve judicial resources, are conducted more quickly and can be less costly to both parties.  The Federal Arbitration Act (9 U.S.C. Sec. 1, et seq.) requires that courts send parties to arbitration if a valid arbitration agreement exists; in other words, a judge cannot choose to keep the case in his courtroom.

Employers also tend to favor arbitrations as the arbitrations are usually a quicker, less costly way to resolve disputes.  The employers may also like to avoid emotional juries/peer-driven juries/the uncertainty of jury awards.  (first two maybe a bit controversially stated?) 

Employees, however, may resent being forced to skip their proverbial ‘day in court.’  They are deprived of their chance to tell their story to a jury, a jury which may be more generous with an employer’s coffers than a professional arbitrator might be.  (Again, controversial?).  More often than not, it is juries (comprised of an employee’s (perhaps more sympathetic) peers) that award large monetary verdicts.  (controversial?)

Are employee arbitration agreements enforceable? 

Because they may want their day in court, many employees try to avoid arbitration.  If they have signed an employee arbitration agreement, can their employer force them to arbitrate?  While the current caselaw does favor compelling employees to arbitrate, a court may strike an agreement if it does not comply with certain legal standards.  For instance, the arbitration agreement must cover the claims at issue (e.g. state that an employee agrees to arbitrate any wrongful termination claim).  Additionally, an agreement must be both procedurally and substantively conscionable (essentially, the bargaining position of both parties must be somewhat equal and the actual terms of the agreement must be reasonable).  If an arbitration agreement does not cover the employee’s claims, and/or if the agreement is substantially unfair, a judge could disregard the arbitration agreement and instead allow the employee to litigate his claims through the court. 

Do you have questions about employee arbitration agreements?  Contact us:  we can help.  Call or email any time. 

Standard Clauses in Physician Agreements - Patient Receipts

Patient Receipt Clauses – What do these look like?

Sample:

(a) You agree that any checks or funds made payable or received by you for professional services rendered on behalf of the Practice during the Term of your employment hereunder shall be the exclusive property of the Practice and shall be promptly paid over or endorsed to the Practice for deposit in its account.

(b) You further agree that the Practice, or its designee, shall have the exclusive right to bill patients for the professional services rendered by you on behalf of the Practice hereunder and to collect all such fees for its own account. You agree to execute such other documents which may be necessary to effectuate the foregoing.

(c) You hereby authorize the Practice to endorse and deposit to its account any checks made payable to you on account of professional services rendered on behalf of the Practice during the Term of this Agreement and grant the Practice a limited power of attorney to effectuate the foregoing.

Patient Receipt Clauses – What do they mean?

These are fairly self-explanatory:  the practice is in charge of the billing and collecting.  Your job is to provide the best medical service you possibly can.  The practice is in charge of all decisions related to billing and collecting.

What this means for you, practically speaking is that you cannot make side-deals with patients.  You treat the patient, and the practice deals with billing.  If the practice wants to give someone a discount, that is their decision, if they want to be totally ruthless about billing and collections, that is their decision too. 

When it comes to money, you get your compensation and the practice deals with the rest.

Patient Receipt Clauses – What should I do?

There is really not much to do.  If you want more ownership of billing, you need to take greater ownership of your practice (which, is becoming increasingly rare in this age of massive, hospital-owned practices).  Of course, if you disagree with your employer’s practices you can always tell them as much and, if appropriate, change jobs (easier said than done, I know).

Want Help with your Physician Employment Agreement?  Contact us – we can help.  Our attorneys have worked with hundreds of physicians from all across the country. Call or e-mail any time.

Standard Clauses in Physician Employment Agreements - Employment at Will

Physician Employment Agreements: Employment at Will Clauses – what do these look like?

Sample:  “Your employment with the Practice is for no specific period of time. Your employment with the Practice will be “at will,” meaning that either you or the Practice may terminate your employment at any time and for any reason, with or without cause. Any representations which are contrary to or conflict with the foregoing that may have been made to you are superseded by this letter agreement. Notwithstanding anything to the contrary, in keeping with the “at will” nature of your employment relationship with the Practice, the Practice reserves the right to review, on an annual basis or more frequently as determined by the Practice, and make changes to your job description/duties and title and your compensation and benefits. Although your job description/duties, title, compensation and benefits, as well as the Practice’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and a duly authorized officer of the Practice.”

Physician Employment Agreements: Employment at Will Clauses – what do they mean?

Basically, these “Employment at Will” clauses mean that you can quit any time you want and, conversely, the practice can fire you any time they want.  Either side can do this for good reason, bad reason, or no reason at all.  The only real limitations on the practice’s authority to terminate you, are based on protected categories like, race, age, gender, etc., as well as retaliation.  But this does not mean that the practice has to have a fair, or even defendable, reason to terminate.

Physician Employment Agreements: Employment at Will Clauses – what should I do?

Think about your job prospects.  The alternative to employment at will is a contract setting forth a term.  But this is a double-edged sword.  While you have more job security with a term contract, you are also locked in with a practice, perhaps for longer than you want to be.  The key is to think of your employment agreement like a pre-nuptial agreement, prepare for the worst, and you can cover yourself.  But to do so will require you to think hard about your career and future.

You do not have to be a genius to figure this stuff out on your own, but if you want to make sure, or just don’t have the time to put into it, you can also call an attorney who can walk you through every step of the process.

Want Help with your Physician Employment Agreement?  Contact us – we can help.  Our attorneys have worked with hundreds of physicians from all across the country.

We specialize in physician employment agreements

We specialize in physician employment agreements

Standard Clauses in Physician Employment Agreements – The Non-Solicit Clause

Physician Employment Agreements – Non-Solicit Clauses:  What Do These Look Like?

Typically, there are two kinds of non-solicit agreements for physicians:  (1) non-solicitation of practice patients, and (2) non-solicitation of practice employees.  Below is an example of each:

Non-Solicitation of Patients

During the term, and for 12 months thereafter, Physician may not solicit patients of the Practice.  However, following termination of employment, Practice will honor patients’ freedom of choice and upon a patient’s request will inform the patient of Physician’s new contact information.

Non-Solicitation of Employees

During the term, and for 12 months thereafter, Physician may not recruit, solicit, or induce to terminate their employment or other relationship with the Practice, any employee or independent contractor of the Practice.

Physician Employment Agreements – Non-Solicit Clauses:  What Do These Mean?

Physician non-solicitation clauses are designed to prevent the departing physician from poaching the practice’s patients and people.  Really, these clauses seek to prevent a departing physician from messing with the practice’s business.  Seems fair enough, right?

Physician Employment Agreements – Non-Solicit Clauses:  Are These Enforceable?

It depends on how broad the physician non-solicitation clause is.  Generally speaking, the more narrowly drawn (i.e. the less restrictive) the non-solicit clause, the more enforceable it is.  The examples above are more or less reasonable and would likely be enforceable.  But we’ve seen some really over-reaching agreements.

The more important issue, practically speaking, is not whether the physician non-solicit agreement is enforceable, what really matters is whether the practice will seek to enforce it.

Physician Employment Agreements – Non-Solicit Clauses:  What Should I Do?

Duh … call an employment lawyer.  First of all, we’re delightful! 

Second, we can help you analyze how enforceable your non-solicit agreement is, the likelihood of your former practice seeking to enforce it, and what you can do to protect yourself.

We have handled hundreds of physician employment agreements throughout the country.  If you need help reviewing, revising or negotiating your physician employment agreement, call or email us any time.  We are here to help.

Standard Clauses in Physician Agreements: The No Other Agreement Clause

Sample “No Other Agreements Clause”

You represent that you have not entered into any agreement with any other employer or party which would restrict your right to enter into this agreement or perform professional services as an employee of PRACTICE, and you understand that the PRACTICE has relied on this representation in offering you this agreement.

No Other Agreements Clauses – What Does it Mean?

Basically, these “No Other Agreement” clauses prohibit you from working for a practice when that work would violate another agreement - like a non-compete.

So, say you are a pediatrician and have a non-compete with Practice. Practice A’s non-compete says that you cannot practice pediatrics within a 5 mile radius of the primary location of Practice A.  You quit Practice A and move on to Practice B (congrats on the new job!).  Practice B hands you an employment agreement with a No Other Agreements clause.  If you were to sign Practice B’s employment agreement, not only would you be violating you non-compete with Practice A, you would also be violating your new agreement with Practice B, by certifying (incorrectly) that you are not prohibited from working for Practice B by any other agreement.

No Other Agreements Clauses – what should I do?

Before you move on to practice B, you need to make sure you understand your agreement(s) with practice A.  More often than not, you can do this yourself.  Just look out for things in your agreement(s) with Practice A that impact your future.  These are usually called “Restrictive Covenants,” which is a umbrella term that includes, among other things, non-competes, non-solicits and non-disclosures.  You do not have to be a genius to figure this stuff out on your own, but if you want to make sure, or just don’t have the time to put into it, you can also call an attorney who can walk you through every step of the process.

If your no prior agreements inhibit your ability to work for your potential employer, then this clause is fine. If there is a roadblock, it is definitely time to call an attorney and work out a plan.

Want Help with your Physician Employment Agreement?  Contact us – we can help.  Our attorneys have worked with hundreds of physicians from all across the country.

Email or Call any time.

Paid off the books? Your employers are (probably) crooks.

If you are being paid off the books, in cash or via personal check, your employer may be breaking the law. And you might be entitled to compensation.

Are you being paid off the books?  Chances are, your employer is breaking New York wage and hour law.  Just by failing to provide you with notifications regarding your wages and legally compliant pay stubs, your employer is breaking the law. 

If you are being paid off the books, you might be entitled to recover as much as $10,000 or more.

New York Labor Law requires employers to provide all employees with a wage notice when they start, spelling out the terms of their compensation.  The penalty for failure to do so can be as high as $5,000. 

New York Labor Law also requires employers to provide all employees with wage statements when they are paid, spelling out their rate of pay, deductions, and other wage-related matters.  The penalty for failure to do so can also be as high as $5,000.

The attorneys at Granovsky & Sundaresh can help you recoup this penalty - and maybe more.  We are experienced and aggressive wage and hour lawyers who fight to make our clients whole.  Not only will we examine whether we can recover these penalties for you, but we will also try to find other avenues to increase your recovery such as unpaid overtime, minimum wage or wrongful termination issues.

Call now. 646-524-6001. We have attorneys standing by to take your call. Or you can e-mail us - all e-mails receive a response within 24 hours.