William A. Schreiner, Jr.

Maybe.  A California case is testing the idea that you can get in trouble at work – or even fired – for having an affair even if you’re not having an affair.  Even if, in fact, you’re not actually doing anything that would make someone think you were having an affair.  Can you recover damages if you’re fired under these circumstances?  We’ll have to see, as explained below. 

Let’s start at the beginning.  It’s generally considered good career advice to keep your love life and your work life separate.   For their part, companies often encourage their employees to do so.  Others ask coworkers in relationships to sign “love contracts,” which may or may not mitigate the ultimate impact if the relationship goes awry. 

But sometimes, an executive can get into trouble even if her boss just suspects she’s having an affair with another boss.  How can this come about, you ask?  The answer is in a complaint filed earlier this month in California, entitled Alexander v. The Original Footwear Company. 

• Breach of Contract

My colleague Ellen Marcus has written a great piece about Sergey Aleynikov, a vice president and computer programmer at Goldman Sachs who allegedly stole its proprietary computer code as he was heading out the door to work at a competitor.  Aleynikov was indicted and convicted for breaking Federal law when he did so – but a Federal appellate court overturned his conviction.  Now, though, he’s about to face New York State charges for the same alleged theft.  Aleynikov has sued Goldman Sachs, arguing the investment bank has an obligation to reimburse him for the legal fees he’s already incurred (indemnification) and pay his new legal bills as he fights the state charges (advancement).    

Ellen noted in her piece that the Aleynikov story “illustrates key concepts about indemnification and advancement.”  There is, though, another piece of this puzzle that the Aleynikov matter also illustrates.    

• Indemnification and Advancement
• Insurance

In September, Suits by Suits covered a wide array of disputes across many industries throughout many jurisdictions. Topics reported on include Lilly Ledbetter Fair Pay Act  and Eaton Corporation’s quest to sue six of its engineers. We revisited the UVA failed coup, we discussed common lessons from the “If You Can’t Say Something Nice,” department, and even told a story about two cases with lessons about Title VII and the Equal Pay Act. We also discussed Merrill Lynch and mandatory employee arbitration clauses, how saving money saved an employer from age discrimination, and the statutes of limitations. 

In case you missed anything the first time around, here’s a roundup of all our posts from September:

• Monthly Roundup

Timing is everything, they say.  That’s especially true when it comes to filing a lawsuit: if your timing is off and you file after the statute of limitations – the amount of time the law allows you to bring your suit – has expired, you can be out of luck.  It becomes more complicated because each state has its own set of these time limits.  Some states give you plenty of time to sue.  Others, not so much. 

In the employment context, the former general counsel of Martha Stewart Living Omnimedia learned that lesson this week the hard way.  Gregory Barton sued his former employer, alleging he was denied the right amount of severance pay after he was asked to leave the company.  Barton thought New York’s window of six years to bring his suit applied.  Wrong, held the New York judge as she dismissed his case: Delaware’s one year limit applied.

• Breach of Contract
• Statutes of limitation‎s

Via Law360 (subscription required), we learn of this interesting ruling from a California court, limiting Home Depot’s discovery requests seeking a former employee’s Facebook and LinkedIn posts. The court held Home Depot is only entitled to certain social media posts between the employee and other Home Depot employees, not posts with other people or that go to the former employee’s state of mind.   Social media raise many unique and interesting challenges for employment relationships -- we’ve dug deeper into these issues here, here, here, and here.

Those of us who write for Suits-by-Suits have had some contentious depositions (where a witness is asked questions in a pre-trial proceeding) in our day, but nothing like this one reported in the American Lawyer.  Two Manhattan lawyers were arguing at a deposition when one allegedly “accidently” spit on the other, and the spittee-lawyer then slapped the alleged spitter-lawyer.  Of course, one of them sued the other for slander and assault, seeking $1 million. A New York judge has now dismissed the case.   

Litigation as a way to settle disputes between companies and executives may at times get hot enough to boil away spit, but it sure beats at least one of the other alternatives. From our “How Not To Settle Executive Disputes” department, the lead sentence in this Courthouse News story says it all: “A disgruntled former partner in a law firm fire-bombed his former partners' house, the husband-and-wife legal managers claim in court.”  

• Discovery
• The Inbox

Perhaps the best ongoing show in the Washington area -- outside of Capitol Steps -- is the drama surrounding the Metropolitan Washington Airports Authority's governing board.  We wrote earlier about how MWAA's board was in the unique position of funding the legal costs of a board member, Dennis Martire, to fight his own removal from the board, because the story illustrates some important principles about how indemnification clauses between companies or organizations and executives can work.  Today, the Washington Post has reported that Mr. Martire is returning to the board (at least temporarily), thus putting an end to the litigation over his seat.  The Post also has an excellent article on a new addition to the agency: an ethics and accountability adviser sent to it by U.S. Transportation Secretary Ray LaHood. 

It’s very likely that your grandmother, an aunt or uncle, or some other wise and guiding figure in your life taught you the maxim we started in our headline: If you can’t say something nice, don’t say anything at all. 

That’s a saying that captures a theme that comes out of many of our posts here on Suits-by-Suits.  It’s not just a decent piece of advice for life, but in business relationships as well. 

Of course, there are times when you can’t follow it, and have to say something.  This is especially true when key employees leave a company, and the company is compelled to explain the departures.  But as genetic-analysis company Sequenom learned last Thursday in a ruling from a California appellate court, if you’re going to say something that’s not nice about a former employee, then follow another rule that we lawyers are especially fond of: get your agreement with the former employee in writing before you say anything about him.  Or, you can face long and protracted litigation over who did and said what. 

• Breach of Contract

Two quick news notes from the broader employment law world: Governor Jerry Brown of California has signed into law a bill that creates a higher bar for employers that would move employees wearing clothing or hairstyles based on religious beliefs – such as turbans or hijabs – out of public workspaces and into back rooms.  The new law will require employers to show an undue hardship, essentially a particular difficulty or expense, to accommodate those employees.   It's clearly a response to a lawsuit involving this exact issue and Disneyland --  which colleague Andrew Torrez covered here. 

And from the New York Times Magazine comes this great article with the fitting headline “How Not To Fire A College President,” about the attempted ouster of University of Virginia President Theresa Sullivan.  Perhaps the key takeaway from this cavalier move: when planning to remove a liked and respected C-level executive, try to get leaders of affected constituencies within the organization to buy in before the ouster. 

• Religious Discrimination‎

This story from law.com starts with a truism: “Litigation and anger can be a dangerous mix.”  The story explains why: it’s about how Eaton Corporation , which makes devices that manage energy, has spent eight years suing six of its engineers. Along the way, according to the story, Eaton and its counsel engaged in discovery violations, incurred sanctions, and may have hired an outside counsel who engaged in ex-parte (one-side-only) communications with a judge hearing the case.  In addition to damaging its reputation, the casualty list includes two outside law firms that were terminated and two in-house lawyers who lost their jobs.   The saga continues for Eaton: while one part of its suit against the engineers is still active, the engineers (who have had criminal charges against them dismissed), still have a counterclaim against the company, and shareholders have filed a suit against the company’s directors and officers, alleging they “bungled the case."

OK, that’s an old joke.  But Labor Day is about more than back-to-school sales and beaches.  This is a short post looking back at the history of Labor Day. 

But wait, you say: isn’t this a blog about disputes between high-level employees and their companies, often where there’s an employment contract at issue?  Yes, absolutely it is.  That’s the bullseye of our focus.  Look broadly at that target, though, and what you see is friction: friction in the relationship between an employer and its employees.  We are most intrigued when the friction involves a senior executive and a company.   We are also intrigued when disputes arise because an employer asked a job applicant about his religious beliefs or required him to disclose his Facebook password in order to apply, or a company fired an employee shortly after learning that she was pregnant, or a company claims that a former sales agent violated the non-compete provision in her contract by selling a competitor’s products in the company’s territory – even when that job applicant or employee is not at the C-level.  That’s because the same laws against discrimination apply to all of us, and courts apply the same principles of contract interpretation regardless of whether the employment contract is between a CEO and a Fortune 500 company, or a first-year sales associate and a family-owned business.

This weekend, the labor movement – involving employers, employees, and, ultimately, complicated and regulated contracts – is drawing our attention.  So, enough about why we’re writing about Labor Day: let’s get to it.