Hurd recently resigned as CEO of HP, amid an ethical inquiry into whether he falsified expense reports to cover up an affair with a coworker (exam answer part 1) who filed a sexual harassment charge against him (part 2). His departure was lambasted by Larry Ellison, CEO of Oracle, who sent an email to reporters at the New York Times calling it “the worst personnel decision since the idiots on the Apple board fired Steve Jobs….” (part 3 – extra credit).

Yesterday, Oracle announced that it had hired Hurd as co-president and board member. Within hours, HP had sued Hurd and Oracle, claiming that Hurd’s severance agreement prohibited him from taking the job, because it would inevitably lead to disclosure of HP’s trade secrets (part 4). There seem to be some thorns in HP’s case, however, since Hurd never signed a noncompete agreement, and California – where the suit was filed – has sort of rejected the doctrine of “inevitable disclosure” (there’s the points that get you the A), upon which the case apparently relies.

There is, of course, nothing wrong with an employee competing against his former boss in most states, unless some agreement or legal doctrine affecting you and your employer says otherwise. Even with language in Hurd’s severance agreement prohibiting him from sharing trade secrets, without a noncompete agreement, he can theoretically work for a competitor as long as he stays mum. This is where the doctrine of “inevitable disclosure” comes in. Some courts have acknowledge that, even without evidence that a former employee is going to divulge trade secrets, there are some positions he or she can take that would so hinge on the sharing of confidential information that disclosure is inevitable and can be assumed.

Sadly, California has pretty much rejected that theory.

So what’s all this really about? Who knows. Speculation is that Oracle will give Hurd control over Sun Microsystems, which it recently acquired. While Oracle is a software company (which actually has a lucrative partnership with HP for the time being), Sun does hardware, in direct competition with HP.

So it’s not unbelievable that whatever Hurd did to double HP’s stock price will come up in conversation at his new office. What remains to be seen is whether, under California law, there’s anything HP can do about it.

And law students – I’m putting you on notice. Any employment law professor worth her salt is going to tweak this into a nasty exam question come December.

As my clerkship begins to wind down, I’m putting together a series of posts about what I’ve learned, as a way of helping young lawyers navigate court. Future posts will handle specific topics, including demeanor, motion practice, and dress (and will not be this long). In my first Clerk Status, though, I’m going to give some basic advice for anybody who’s going to a court call for the first time.

First, a caveat: I know my courtroom. There are a lot of different types of courts, and a lot of different places where court is held. Each one of them has its own nuances. I have tried to make the information here as universal as possible, and where my knowledge is limited to my experience, I’ll try to make that clear. Right off the bat, I will tell you that traffic court, criminal court and case-specific courts can be very different places than what I’m describing here.

So You’re Going to Court

Congratulations! Yes, you, peon. You, new graduate settling into life as a lawyer. You hungry, passionate young lawyer ready for action, ready for the thrill of adversarial contests in the vaunted halls of justice. You, the low-man-on-the-totem-pole. Your days and nights of researching, memo-ing, summarizing dep transcripts, have all paid off. You have just been handed a file folder from a more senior associate, who received said folder yesterday from a partner, who received it from his assistant.

You have been chosen to appear on behalf of a client. In court. Look out.

I’m glad you’re still excited – this will wear off around the 11th or 12th time you have to do this, probably. Or the first time you have to go to Macon County for a 9:00 a.m. status on discovery.

I can imagine you are a little anxious about the experience, and you should be. As a newly-minted attorney, going to court on a status call is not unlike being on stage as an understudy. You are expected to perform at equal level with experts, and afterward you’ll have to report to the guy who does this all the time. So here’s a couple of things to remember on your big day.

1. Get There Early (and Check In)

This is common advice. Most attorneys recommend you arrive early so you can sit back and see other lawyers in action, like it’s an educational exercise. Being early is good advice, but this explanation makes it sound like it’s for your edification, and therefore flexible. It’s not. And it’s not.

Plan to get to court twenty minutes early. If you’re lucky, you’ll walk in 5 minutes before the call. It’s Murphy’s Law: You will have to find parking. You will have to find your courtroom. You will have to find your case on the calendar.You will have to find another courtroom because whoever printed up your instructions or sent out the notice got the courtroom wrong. Case in point: in the Daley Center, between 8:45 and 10:00 (when all the calls are going on), it can take twenty minutes just to get an elevator.

In busy courtrooms, status calls are cattle calls. When you walk in on a busy call, the room is filled with lawyers. They are talking, laughing, roaming around looking for people, lining up at a counter. It’s a scene. It’s also a time-suck. Point being, assume everything will take longer than you expect, including finding a seat.

Also, while it hardly ever happens, you have to go to court assuming two things:

1. the Judge will enter the room at the exact time the call is supposed to start; and
2. your case will be the first one called.

If you are “on time”, and your case is first, you will have no time to check in, set your bag down, get your bearings, etc. If your case isn’t going to be called for twenty minutes, it’s still tough to do these things after the judge is on the bench. It’s like walking in late to church. You can’t make noise and everyone turns around when the door opens.

Also, in some courtrooms you have to check-in with the court clerk before the call. Getting there early gives you a chance to see if the other attorneys are doing so, without having to walk up to the clerk yourself and look like you’re lost. Even if you don’t have to check in, there’s usually a list of the cases on the call, and you’ll want to make sure yours is on it, so you know you’re in the right place.

One last reason to be early: a lot of lawyers will want to discuss the case before the judge comes out, and will be looking for you before the call. If something can be dealt with by agreement it’s best to take care of it before the call starts. Which brings me to my next point…

2. Be Prepared

It’s probably the most-repeated, least-followed piece of advice about a court call. Don’t walk into a courtroom with a pending motion or the last court order and no idea what the case is about.

If you’re like I was, you’ve heard this advice over and over, and even taken it to heart, but when it comes down to the day-to-day work of being a lawyer, and someone walks into your office at 5:15 with a folder for the next morning’s cases, it’s hard to justify spending unbillable time reviewing files for a 30-second motion call.

Make the time.

Aside from the cautionary-tale consequences of being unprepared, let me be the first to add an element to this oft-ignored advice: no matter how mundane you think appearing in court is, it is the height of your professional duty to represent your client before a judge. You owe some level of basic preparation to your client, to opposing counsel, and (maybe most of all) to the judge.

At some point before the call, your judge will have gone through every motion and every file that is on that call. They are prepared for you to apprise them of the case, and have recommendations for next steps. They are prepared to set briefing schedules and the like. They are prepared.

My judge can have anywhere from 3 to 30 cases on a call, and I’ve never seen him step onto the bench unprepared for a single case. You have one case on the call. Take 15 30 minutes and figure out what it’s about.

3. Wear a Suit

I’ll be doing a whole post on this, so I’m not going to belabor the details here. I will say this: For court purposes, no one cares if you look like Don Draper, but your reputation (not to mention your client’s and your bosses’) is going to be carried by the way you present yourself to the court and opposing counsel. That’s a big burden; it helps to have some shoulder pads.

4. Speak to the Judge (and Only to the Judge)

So you prepared the night before, you showed up on time, your case has been called, and there you are – at the bar. What do you do? Do not – I repeat do not – look wide-eyed at your opposing counsel, as if to ask “How did I get here? Who are all you people?”

This happens too often, and is totally unnecessary. You are there for a status of some kind. Either someone filed a motion, or the case is in the pretrial stages and the judge wants an update. Someone’s going to have to talk to the judge. But who?

If you’re there for a motion call, it’s easy: whomever filed the motion does the talking, followed by the opposing counsel. If you’re there for a general status, that’s easy, too – you do the talking. Why? If you talk, you guide the story. Whether you’re late on filing discovery, or neither side has gotten on top of scheduling depositions, if you talk, you get to present the picture you want the judge to see. If you let the other side talk, they get to paint the picture. And, you know, they’re called “opposing counsel” for a reason…

Like any proactive effort, being the first to talk opens you up to be the point man for incurring judicial wrath. So be it. Welcome to the practice of law. Trust me, being the talker is beneficial because you might get yelled at, not in spite of it. Experience comes in many forms.

One side note on this issue: When you are at the bar, you and your opposing counsel are both officers of the court. You should not talk to each other at the judge’s exclusion. Talk only to the judge. This rule keeps some very contentious issues civilized inside the courtroom, and when it breaks down, it can be very ugly for all involved.

5. Write the Order

In state court here in Illinois, attorneys generally hand-write an order summarizing the results of the call, and then the judge signs it. You want to write the order. Mostly for all the same reasons you want to be the one to talk to the judge, but there’s one other reason here:

Experienced attorneys will notice.

Writing an order is not something a lot of young lawyers think of as important. It takes time, and it involves ancient skills like long-hand writing. But an order must be approved by all sides, and so it carries something of a special place in courtroom practice, because it’s something that isn’t anyone’s responsibility, but has to be done. By writing the order, you’re indicating that – even as a young attorney – you understand some of the nuances of the practice. That can be a powerful thing.

6. Get Back to Work.

So, there you go. A little advice to get you started. Get back to your office and brief your superior on a job well done. And remember, it may not feel like much, but the experience you gain making court call appearances is invaluable, trust me.

If anything in this article differs where you practice, or you disagree with something, feel free to put it in the comments.

From the press release:

The decision … covers three Arizona cases in which union carpenters held 16-foot-long banners near establishments — two medical centers and a restaurant — to protest work being performed for the owners of the establishments by construction contractors that the union claimed paid substandard wages and benefits. Two banners declared “SHAME” while a third urged customers not to eat at the restaurant.

The section of the National Labor Relations Act in question here makes it illegal for unions to “threaten, coerce, or restrain” a secondary employer in order to get them to stop doing business with the primary employer.

Now that is definitely coercive...

When a union is trying to get consumers to boycott a secondary employer, the NLRB has previously drawn a line between picketing (mostly illegal) and passing out handbills in front of the business (totally fine).  With these three cases, the Board had to deal with giant banners, which when you think about it are kind of like a form of stationary picketing. Or one big mass handbill. You see the dilemma.

Well, the majority of the Board came down on the “big, mass handbill” side.

Quoting a Supreme Court opinion, the Board acknowledged that the anti-coercion section of the Act was “adopted…with the objective of ‘shielding unoffending employers’ from improper pressure intended to induce them to stop doing business with another employer with which a union has a dispute.”

However, the Board noted that the Supreme Court has required more action to fall under the “threaten, coerce or restrain” umbrella — something along the lines of blocking an entrance, violence, intimidation, etc. At any rate, trying to persuade the public is not enough for the majority.

As for the argument that bannering is really just stationary picketing, the Board said that there’s an important distinction – confrontation. Picketing, the Board says, is not merely holding a sign, but moving back and forth in front of a business, so that the workers or customers of the offending company must engage in some way with the picketers.

Finally, the Board majority points out that, if it found bannering to be a violation of the statute, it would raise a question about whether the statute was unconstitutionally limiting the union’s free speech rights. The Board said that, because there was another reasonable way to interpret the Act, it was “compelled” to find bannering acceptable because of the Constitutional Avoidance doctrine. Under the “Constitutional Avoidance” doctrine, if calling something a violation of the Act triggers a Constitutional question, the Board should only interpret the statute that way if such a finding is “unavoidable”.

The decision was 4-3, along party lines. No shocker there. No doubt this will be appealed; it is a matter of first impression, and will go through the 9th Circuit in California, so there’s a good chance it will worm its way to the Supreme Court in a year or so. Stay tuned.

One last note, all three charges were originally filed in 2003. They are being heard now, because of the longstanding vacancies at the NLRB. Just to give you some idea of how the backlog looks over there.

HT to John Hyman for tweeting the press release.

In addition to the recently-signed beef up of the Wage Payment & Collection Act, Governor Pat Quinn has signed a new law that prohibits most employers from using credit checks during the hiring process. Specifically, the Employee Credit Privacy Act (HB 4658) bars employers from basing employment decisions on an employee or candidate’s credit. The Act also prohibits employers from inquiring about an employee’s credit or obtaining a copy of their credit report.

The theory behind this law – some version of which is winding through a great number of state legislatures right now – is that laid-off workers and unemployed college grads have had their credit adversely affected by the downturn, but bad credit doesn’t mean they’re bad employees. To deny them employment would put them in a feedback loop: they can’t get a job because of their credit, and they can’t repair their credit because they can’t get a job.

Of course, this doesn’t mean there aren’t jobs where pre-employment credit checks are very good things, and thankfully, the law accounts for those circumstances. Insurance companies, banks, and law enforcement and other public-sector employers are exempt. The law also allows employers outside of those industries to use credit checks where the employee has access to personal financial information, or - in certain circumstances - access to company funds or trade secrets.

The law has broad support in the public. Arguments for it focus on the fact that, for most low- to mid-level jobs, an employee’s credit history just isn’t closely related enough to the work they will do, or their work ethic for that matter. It’s common knowledge that a lot of hard working people are not always the best with their personal affairs.

I know there’s been a lot of debate over this law, though public opinion seems to be in favor post-downturn. I’d be interested to know what you think. Leave your take in the comments.

Under the beefed-up IWPCA, employers that violate the wage laws will have to pay employees back with interest, and a $250 fine. If they’re caught more than once in a two-year period, they will be charged with a felony, and could face up to three years in jail.

While I’m not holding my breath waiting for the first imprisonment under the new law, there is another provision that could make for some real change: beginning next year, the Illinois Department of Labor will have the authority to adjudicate wage claims under $3,000,  instead of issuing demands to employers that inevitably get ignored and then passing the case onto the Attorney General to prosecute.

Besides the growing pains that will inevitably come with this new authority, I am interested in what affect this will have on wage-and-hour lawsuits, which have been steamrolling through Illinois courts for years. My understanding is that the courts have allowed people to file private lawsuits for Wage Act violations without going through the DOL because the department couldn’t enforce its findings. Now that the DOL has adjudication powers, it will be interesting to see if lawsuits get thrown out for failure to exhaust administrative remedies first.

The DOL enforcement is supposed to be paid for through interest collected by the state for certain violations.

HT – WBEZ

The Plaintiff had sought class certification in a wage-and-hour suit against her employer, Giordano’s Enterprises, over a $0.25-per-hour deduction used to cover employee meals. The Plaintiff wanted two separate classes certified – employees who were paid below minimum wage after the deduction, and employees who still received more than minimum wage after the deduction. The Defendant asked the court for additional time to respond, claiming they wanted to negotiate settlement.

During the court’s extension, the Defendant executed some 350 settlement and release agreements with individual employees. The settlements released the company from the wage claims in exchange for $10. When the Plaintiff learned of the releases, she moved the court to enjoin the Defendant from executing any additional settlements, and to void the already-obtained agreements as against public policy. The court granted the injunction, and certified the question of the settlements’ validity for interlocutory appeal.

On appeal, the court noted that the Wage Payment Act itself states that payment of minimum wage is a matter of public policy, and that any contract that results in less-than-minimum wages is void. The Act also requires employers to pay employees all wages not in dispute, and that acceptance of a paycheck can’t be tied to release of wage claims. Thus, the Act itself prohibited the settlements signed by any member of the putative “below-minimum” class.

As to the other class – those who still received more than minimum wage after the $0.25 deduction – the court looked to Federal courts’ interpretation of the FLSA for guidance. Though there are exceptions, the court noted a steady line of cases prohibiting private settlements of wage claims. The reasoning was transferrable to Illinois – the legislature’s determination of a public right to minimum wage payment meant that the right cannot be waived.

Finally, and most importantly, the court held that all the settlements were void because the Plaintiff had already petitioned for class certification. Illinois courts have long held that, where a class hasn’t been certified yet, the Defendant can execute settlements with individuals who would eventually be members of the class. However, no court in the state had ever dealt with settlements executed while a petition for class certification was pending. The court of appeals held that a trial court has a duty to protect the interests of a putative class, and the legitimacy of the judicial process, and that this duty was affected by the Defendant’s attempts to settle with members of the class. As a result, the court of appeals held that any releases signed by members of a putative class while a petition for certification is pending are void as a matter of law.

It will be interesting to see how the Defendant’s specific actions in this case – asking the trial court for an extension so it could “negotiate settlement”, not notifying either the Plaintiff or the court of its intentions, offering a blanket sum of $10 rather than negotiating individual claims, etc. – affect the trajectory of this decision’s precedent. Future courts could limit the holding to circumstances where the defendant tried to deceptively execute releases, or it could stand on the holding as it reads – that any release executed while a motion for class certification is pending is outright void.

Either way, for now the message is clear: In Illinois, everything changes when that petition to certify is filed.

On June 12, my 86-year-old grandfather died. We shared a birthday. He was one of the few living men I would call a hero. So last Monday, I set my office in order, giving the externs enough work to get them through the week and trying in vain to clear my desk. On Tuesday, I left with my brother, my wife and our 2-year-old son for Clinton, Mississippi, where my grandparents moved in 2005 following a suggestion from mother nature.

I wasn’t going to write about him. It’s obviously a personal thing, and I didn’t want to trivialize his life by making it a teaching tool or something. But the experience of the funeral and my family’s shared memory of him has been stuck in my mind ever since, so I feel compelled to share.

My Grandaddy James grew up in Mashulaville, Mississippi. He left college unfinished to serve in Patton’s Army in World War II, and came home to work as a mechanic. Not long thereafter, he went to work for the Postal Service as a letter carrier in Jefferson Parish, just outside of New Orleans.

He worked hard. At his funeral, someone said “Jim didn’t just know every street in Jefferson Parish, he knew how to pronounce them all…” (no small feat in the Nawlins suburbs). After some years working as a mailman, he moved into the mechanics department. He worked. By the time he retired, he’d been given a job working with architects to design the mechanics for future post office buildings.

When he wasn’t working, he worked. Someone else told a story that, when she was a kid, my mom bought a broken radio at a church fund raiser. When the seller pointed out the radio’s condition, my mom didn’t skip a beat. “Don’t worry about it,” she said. “My daddy can fix anything.”

And he did.

My grandparents’ minister said that, when he first started at the church, my grandaddy was introduced to him as “the one who knows how the whole building works.” He knew the light switches, speaker controls, doorkeys, kitchen appliances. When the church bought a bus, he went to the DMV to get certified to drive it. When it was suggested that the Bible/Hymnal holders be replaced, my grandaddy designed new ones – down to the color and head-style of the screws – and then manufactured over 100 of them. By himself. In his backyard.

After the Hurricane, the minister spent a few harried weeks nearly alone at the church, trying to get utilities and services restored. There was damage. When my grandaddy came home, he went to the church to see what he could do. The minister started rattling off a laundry list of problems and broken things. Mid-rant, without a word, my grandaddy just walked out on the exasperated pastor.

“Two hours later,” the minister said, “James Peters walked back into my office and every one of those problems had been fixed.”

Why am I writing about this? Well, for one, my Grandaddy James was a man of the best sort – happy, genuinely, in a way that made you happy to be around him. Hardworking. Loved his family. Had convictions. And there aren’t enough places where men – real, everyday men – can be celebrated. So I’m celebrating.

But there’s something else. That thing that’s been gnawing at me the past week or two. For my entire life, I have been inundated with the notion that “no one reaches the end of their lives and wishes they’d spent more time at work.” I’ve heard it from public speakers, blogs, blawgs, classmates, teachers, pretty much everyone who ever wanted to make a point about “balance”.

Well, I don’t know what my Grandaddy James is thinking about right now. I doubt he wishes he’d spent more time at work. But I know he doesn’t wish he’d spent less time there, either.

To my grandfather, his skill with building things, fixing things, knowing how they worked, it touched every part of his life. He used it when he felt called to, by his country, his church or his family. It fed his children and fixed their radios. It led him from the army to a mail route, to the truck, and then to the attention of learned men with degrees and money. It afforded him the respect of his pastor and his friends.

His work was not his job. His job was not his life. They didn’t balance – it didn’t work that way.

Before this trip, I didn’t know what exactly my grandaddy did. When I got to Mississippi, I asked my mom and dad and my grandma. You should’ve seen them talk. They were so proud of his ascension at the P.O., his military service. About where he was able to get to from a little house in Mississippi with no running water.

My Grandaddy James – grunt, mailman, mechanic, father, husband, artisan, bus driver – was a smashing success.

And it occurs to me, thinking of my grandfather’s life, that whatever abilities I’ve been able to develop are not supposed to just make me a better lawyer, or a better writer or public speaker, or even to make me a lot of money. They exist to make me a better man. No matter where I am – home, office, anywhere – I hope I am using what I’ve got to use. I hope I am at work.

And when I am gone, I hope my family is as proud of my work – writ large – as I and my family are of my grandfather. It is an essential part of a life so greatly lived.

Image © 2010, Franczek Radelet P.C.

I just wanted to write a quick note to welcome labor & employment attorneys Jeff Nowak and Bill Pokorny to the blawgosphere, and to point you to their new blog, FMLA Insights.

Jeff is a trusted source on labor and employment law in general, and a veritable expert on FMLA issues.

The blog already has posts up on the new Administrator’s Interpretation extending parental leave to gay partners, analysis of case law and pending legislation, and even podcasts.  There’s even some reassurance for employers about the new FMLA regs.

If you or your business ever have to deal with the the Family Medical Leave Act, you should add this site to your RSS list now. I have.

The interpretation focuses on language in the FMLA that allows eligible employees 12 weeks unpaid leave to bond with or care for “a son or daughter”. The Act defines “son or daughter” as a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis….”

That last little bit of Latin means anyone who has day-to-day responsibilities for a child, but hasn’t gone through a formal process to legalize a parental relationship. This definition exists regardless of the existence or presence of the child’s biological parents.

So, the Administrator says:

“an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”

It’s important to note that, while the granting of same-sex rights is clearly the lead story here, this interpretation has many more implications for those caring for children. Other examples the Administrator gives include:

• A grandparent that has assumed ongoing responsibility for a grandchild;
• An aunt assumes responsibility for raising neices and nephews following the death of the children’s parents;
• Any employee sharing responsibilities equally with the child’s biological parent (including live-in, long-term girlfriends/boyfriends, presumably).

The case is basically about arbitration agreements between employers and their employees. But that makes it sound way more sexy than it actually is; the case is really about whether a court can analyze an arbitration agreement where the agreement specifically grants the arbitrator the exclusive right to decide the legitimacy of or otherwise interpret the agreement’s terms.

The Court held that, where a party wants to assert a contract defense against an arbitration agreement’s delegation of specific rights to the arbitrator, the litigant must challenge that specific provision of the arbitration agreement, and not the agreement as a whole. Since Jackson challenged the arbitration agreement as a whole, the issue should have been left to the arbitrator under the terms of the agreement.

Still with me? Good. Now, that boring topic above is really interesting to me, and to many other labor and employment lawyers who get excited about the intricate procedural details of bringing employment claims. But I think we can all agree that it’s not the kind of SCOTUS opinion that makes the front page of the New York Times.

What’s interesting to me is how my fellow L&E blawgers have used the case to make very practical or helpful notes for their potential clients. To wit:

• The opinion is, arguably, very good news for employers who want air-tight arbitration agreements that will keep them out of court. But Jon Hyman at Ohio Employer’s Law Blog reminds employers that being able to do something doesn’t always mean you should. Recent studies have called into question whether mandatory arbitration is really saving businesses any money at all.
• At Jottings by an Employer’s Lawyer, Michael Fox puts the opinion in political perspective, and explains why it may not be such a great thing for employers after all. If his dead-on prediction of Sen. Leahy’s response to the opinion is any indication, this may lead to legislation that swings the pendulum much farther toward the employee than was the case yesterday.

Both these posts are worth reading, whether you’re into meta-analysis of arbitration agreements or not.