Here at the Suits by Suits World Last-Minute Gift-Buying-Wrapping-And-Shipping Center, we’re scrambling to finish preparations for our big holiday celebration, but as always, employment-related disputes are filling our time:  The eight maids-a-milking are whispering about Title VII violations, the nine ladies dancing are insisting on an ERISA-type plan for future health costs stemming from dancing-related injuries, the ten lords-a-leaping and eleven pipers piping are just getting in everyone’s way, and the twelve drummers drumming claim that putting them last on the list is our way of retaliating against them for blowing the whistle on harsh working conditions in an offshore toy factory owned by this jolly red friend of ours. 

And all of them wonder how it is that they were gifted to us without violating slavery and human trafficking laws.  Bah humbug! No, that’s too strong – it is our favorite holiday. f

In any event, here are the most interesting news items that came across our transom in the past week: 

• For those of us who write about executive employment disputes, the case of Missouri anchorman Larry Connors has been the gift that kept giving all year, raising interesting issues – now, he’s filed a discrimination suit against the TV station that fired him.
• A fired real estate executive received a holiday gift this week when the Second Circuit Court of Appeals reinstated her retaliation claim against her former employer, real estate manager Andalex.  Andalex didn’t walk away without a stocking-stuffer, though: the appellate court affirmed a trial court’s dismissal of the executive’s hostile work environment claim and her claims for gender and national origin discrimination. 
• In a drama that seems like it’s gone on as long as Masterpiece Theater but could use a little Law & Order: UK to move things along, the fallout from the BBC’s executive pay scandal continues to rock the United Kingdom. 
• Speaking of overseas developments, here’s a thoughtful article on things to consider when you send employees overseas.
• Internet-based travel company Expedia is facing an investor’s derivative lawsuit arising out of its award of stock to CEO Dara Khosrowshahi.  The investor alleges the board couldn’t give Khosrowshahi the stock as a bonus because the company hasn’t met the required targets to authorize it.   
• Add Vermont to the list of states looking at tightening their whistleblower protections.
• The Wall Street Journal has this interesting piece on how non-competes can hamper second and third act careers for talented folks.    

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• A federal court is allowing to go forward a claim against Continental Airlines brought under New Jersey law by a gay flight attendant for discrimination on the basis of sexual orientation.  The flight attendant claims that the airlines forced him to cut his mohawk and created a hostile work environment.
• In other news from the not-always-so-friendly-skies, following the airlines merger on Monday, the new American Airlines Group disclosed in an SEC filing that – if certain post-merger milestones are met – CEO Doug Parker will receive a retention bonus that includes shares worth about $15 million.  The new airline also described the latest version of a severance package for Tom Horton, the former CEO of the pre-merger airline, whose earlier version of severance package was considered and then rejected by a bankruptcy court – a saga that we followed closely here at Suits by Suits.
• In other New Jersey news, the disability discrimination claim of a dealer who once worked at Trump Plaza Hotel & Casino in Atlantic City has been dismissed after a court found that the dealer was barred from claiming in the case that she was qualified to work, which was at odds with her sworn statement to the Social Security Administration that she could not use her right hand that she made when she sought (and eventually received) disability benefits.
• In news having nothing to do with airlines or New Jersey, the dean of engineering of Sacramento State recently was put on leave by the school after he was accused in a federal lawsuit brought by a career counselor at the school of creating a hostile work environment – allegedly as retaliation for her investigating claims of sexual harassment by an engineering professor.

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Here at the Suits by Suits Western Hemisphere Nerve Center, we’re anxiously preparing for our Thanksgiving Day celebration.  Our planned parade down Constitution Avenue celebrating all things executive-employment-related has, however, had to be cancelled in the wake of many battles with former participants.  We’re still fighting an employment discrimination claim from this guy, although we keep telling him we didn’t fire him because he was green – that’s not a protected class, anyway – but because he was moving too slow on the parade route.  This weird critter demands severance pay, and that’s just ridiculous.  Also, Mr. Dough-guy here wants reinstatement, even though business reasons required us to give him the (buttered?) knife in the wake of the Nation’s growing carb-consciousness. 

And don’t even get us started on the personal injury litigation that followed this fellow running into a light post.   Bah-humbug to all of it, and pass the turkey and trimmings --

But let’s start with the cheese plate: A Wisconsin company that makes dairy processing equipment is “looking to reach a settlement” with a Minnesota company that won a $22.8 million judgment against it; the jury found that the Wisconsin company hired employees from the Minnesota one who brought with them confidential design information and other trade secrets. 

In two whistleblower suits involving government entities: 1) a state employee wasn’t a protected whistleblower when she was fired after it was determined her job wasn’t in line with the federal funding that paid for it, the First Circuit Court of Appeals holds; but 2) Georgia’s whistleblower statute expressly waives the defense of sovereign immunity – so Fulton County, Georgia can’t use that defense against two whistleblowers, says the Georgia Supreme Court. 

A dispute over stock redemption goes to arbitration instead of litigation, based on a non-compete: A former executive of Valerus will have to arbitrate his claim that the company forced him to liquidate his stock under a severance agreement, because a prior partnership agreement included an arbitration clause, a Texas appellate court held.

Forbes on whistleblowers: An interesting analysis of the SEC’s whistleblower report from the financial services media company here.  Key line: “a lack of clarity concerning the scope of the Dodd-Frank anti-retaliation provisions raises questions as to whether the SEC will continue to see the increase in tips it has experienced to date.”   

Whatever it is, there’s a whistle blowing inside: We’re not sure what a “vitrification plant” does – sounds scary or kinky, or both – but a manager at one in Washington State says that the plant’s operator is retaliating against her again, two years after she filed a whistleblower complaint.     

If you are interested in more information about legal issues involving executives and their employers, on December 10, 2013, Zuckerman Spaeder LLP partners and Suits by Suits contributing editors Ellen D. Marcus and Jason M. Knott will present a webinar titled “Whistleblower Watch: Big Issues in the Latest Whistleblower Cases Under Dodd-Frank, Sarbanes-Oxley, and the Internal Revenue Code.”  In the session, Ms. Marcus and Mr. Knott will discuss the basics of these whistleblower and anti-retaliation provisions and address new developments in the law, including the Sarbanes-Oxley case currently pending before the U.S. Supreme Court.  To register, click here.

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• Partners of the company that owns the Philadelphia Inquirer testified this week at a preliminary injunction hearing in a state court in Philly in a case that they brought against their other partners alleging that having editor Bill Marimow fired violated the company’s operating agreement. They seek a court order directing that Marimow be reinstated.
• On Wednesday, a federal appeals court (also in Philly) affirmed a trial court’s summary judgment ruling against Janis Stacy, an engineer and transgender person, in her case against her former employer LSI Corp. for gender identity discrimination. Stacy was let go by the company after transitioning from male to female. The appeals court agreed with the trial court that Stacy did not have evidence of discriminatory intent to overcome the company’s evidence that she was terminated as part of a larger reduction-in-force due to the declining economy. You can find the opinion in Stacy v. LSI Corp. here.
• Film director Lynn Ramsay reported this week that she has not been served with the lawsuit recently filed against her in New Mexico for breach of contract by the producers of Jane Got a Gun – a Western movie in the making starring Natalie Portman.  Ramsay had been the original director on the project. The producers allege that she accepted a large chunk of her salary under the agreement but didn’t show for the first day of production and behaved badly on the set.
• A trial court in Atlanta ruled on Tuesday that the former Compliance Manager of BlueLinx Holdings, Inc. does not have a right to a jury trial in his case against BlueLinx for allegedly retaliating against him in violation of the Dodd-Frank Act after he blew the whistle on the company to the SEC and the PCAOB for allegedly excessive stock-based compensation for the company’s CEO. The whistleblower provisions of the Dodd-Frank Act are a frequent topic on Suits by Suits and will be examined closely in this upcoming webinar.

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Although Halloween has come and gone, you can continue to celebrate Dia De Los Muertos with us here at Suits By Suits; we recommend sipping a nice anejo tequila while catching up on this week's news.  (Hey, it beats legions of candy-seekers dressed as "Angry Birds," no?)

• The biggest news of the week comes from yesterday's news that the Senate Judiciary Committee approved a bill to protect antitrust whistleblowers; the full text of the proposed bill can be found here.  We'll analyze the provisions of the proposed legislation in the coming days, but in the meanwhile, you might brush up by reading our past library of posts on whistleblowers.
• Scott Norris, former executive vice president for San Diego County Credit Union, has filed a wrongful termination claim against his former employer, alleging that he was retaliatorily discharged after blowing the whistle on the bank's alleged failure to correct thousands of errors in the processing of loan payments.  SDCCU denied the allegations without further comment.  We'll be watching, of course.
• Way back in March of this year, our colleague Bill Schreiner wrote two excellent articles (part one, part two) on the unfortunate situation involving Jerry Sandusky and Penn State.  This week, we learned that Penn State has agreed to pay nearly $60 million to the 26 known victims of Sandusky's sexual abuse.
• Fallout continues in the forthcoming merger between #2-ranked office-supply company Office Depot with #3-ranked OfficeMax; this week, we learned that neither company's incumbent CEOs -- Office Depot's Neil Austrian and OfficeMax's Ravi Saligram -- intend to submit their names for consideration to helm the combined company.  Instead, both will collect lucrative (and already-controversial) golden parachutes; $15 to $16 million for Austrian and $13.5 million for Saligram, according to the Orlando Sun-Sentinel.
• Presumably in light of the ongoing controversy over such packages, SunPower's CEO, Thomas H. Werner, has requested that the company amend his Employment Agreement to reduce his severance benefit package in the event of termination.  Under the terms of the amended agreement, Werner would receive two years' base salary (reduced from three), two times his annual bonus (reduced from three) and two years' worth of subsidized health care benefits (also reduced from three).  Might this be the wave of the future as executives try to tamp down on potential outrage over golden parachutes?  Only time will tell.

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We’re getting over the withdrawal symptoms we suffered on Tuesday, which was National Snark-Free Day – something we learned from this article in the venerable Washington Post.  Yes, many thanks, Washington Post, for filling your pages with only the most important information. 

In the meantime, several items of interest came over our transom – some with their own built-in snark; others waiting, Ikea-furniture-like, to be brought to life with your snark – but all noteworthy in our area of expertise:

• To hell with this unpaid labor – it’s just too expensive, says Devil Wearing Prada: Magazine publisher Conde Nast – famous for being sued by its interns last year for labor law violations and for a fictional profile that purports to reflect life at one of its leading publications, among other things – has announced it is discontinuing its internship program.
• End your career in 140 characters or less: We’ve written “B4” about social media and the problems they can create for employers and employees but – sigh – some people just haven’t read our cautions yet.  Including, apparently, this now-former National Security Council staffer who was tweeting snarky tweets from his workplace just across an alley from the White House that really annoyed his colleagues – often the subject of the anonymous barbs – to no end.  Fun fact: Jofi Joseph was fired after he tweeted false information planted as part of an internal “sting” operation to smoke him out. 
• Insert your own snarky comment for this one: Pop star Lady Gaga has settled a suit brought by her former personal assistant, seeking overtime for being on call 24/7. 
• Night Of The Living…er, well, whatever: Just in time for Halloween, the Wall Street Journal has this piece on the “security horror” caused by departing employees.  Maybe that’s a strong way to put it – this or this, frankly, is much more horrifying to us, but we admit it’s a subjective call.  In any event, we’ve written about these issues before, but the WSJ piece is an informative (if hyperbolic) read.
• Also, Law360 has republished this great article about the perils of marriage between executives of competing businesses and whether or not firing one (or both) spouses is prohibited discrimination, written by our good friend and colleague John Connolly (and which first appeared at your favorite blog).  

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• James Whitney, the former CEO of Illinois-based Tallgrass Beef Company has sued the company and its owner Bill Curtis for unpaid wages.  Whitney claims that he was not paid his regular wages starting in 2011 and was never paid his final compensation, and seeks to hold Curtis personally liable.  The Illinois Wage Payment and Collection Act is not unusual in providing that an officer of a corporation can be found personally liable to an employee for violating the Act if the officer knowingly permitted the corporation to violate the Act.
• Dan Allen and the defense contractor CACI, where Allen had been CEO, agreed to modify Allen’s separation agreement to reduce his lump-sum cash severance from $1.6 million to $1 million, and, in return, his non-compete agreement has been made less restrictive.  The company’s SEC filing describing the modification can be found here.
• Amicus (or friend of the court) briefs are pouring into the Supreme Court in the case of Lawson v. FMR, which is set for oral argument in November (see our own Jason Knott’s most recent post on the case) and raises the question of whether the Sarbanes-Oxley Act protects employees of privately-held contractors and subcontractors of public companies from retaliation when they blow the whistle on suspected fraud.  The WSJ reports that business groups and a group of former SEC officials (including former SEC Chairman Christopher Cox) are lining up on the side of the court finding that the employees are not protected, while the National Whistleblowers Center and other pro-whistleblower groups are lining up on the other side.
• We found interesting this commentary in Corporate Counsel earlier this week about reasons that companies with employees who blog at work should be mindful when considering whether to fire those employees for their blogging – including laws in some states that make it illegal to fire an employee for expressing political views, and federal and state laws protecting whistleblowers (including “whistlebloggers”) from retaliation for raising concerns about unlawful conduct in the workplace.

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In honor of both our Tampa- and Baltimore-based colleagues (including yours truly), this week's Suits by Suits Inbox is rooting for the Tampa Bay Rays to defeat the Boston Red Sox in the American League Division Series; game 1 starts tonight.  Alternatively, if you're not into baseball, perhaps you'd prefer a tasty beverage?  Here's a link to 31 days of Disney-themed craft cocktails, one for each day of October.  With that in mind -- or perhaps in hand, depending on when you read this -- on with our weekly recap:

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Here at the Suits by Suits Global Operations Center, we’re a bit bummed that our beloved Washington Nationals Baseball Club has now exhausted any chance it ever had of making the playoffs, as have the almost-local Baltimore Orioles.  All is not lost, however, because now we can turn our undivided focus to our Washington football team – the one with the name that is something of a point of dispute.  The football season here will be exciting, even if it is off to a rough start. 

Glum as our sporting life may be, it’s a worthwhile distraction from the possibility of a government shutdown, although perhaps not as fun as our other new Washington fad: debating the merits of green eggs and ham. 

In any event, news of disputes between employers and executives – and news in related areas – continues to come in over our electronic transom.  Here are the highlights:

• Here’s a story related to the Affordable Care Act that you may not have expected: a whistleblower suit arising out of the District of Columbia’s work to establish one of the exchanges called for by the new law.  This week, a federal judge in D.C. allowed Jennifer Campbell’s suit against the District to proceed.  Campbell, who seeks $5 million, alleges she was fired after she spoke out publicly about problems with a contract to set up the insurance exchange. 
• We’ve written about former TV anchorman Larry Connors’ suit against his employer and the non-compete clauses at the heart of it.  But non-competes are apparently common in the radio business too: this interesting article looks at a few different ones being used in the Atlanta market. 
• Not sure how well this translates (sorry), but language education company Rosetta Stone is trying to dismiss a Florida lawsuit brought against it by competitor Open English.  Open English alleges two employees violated non-compete clauses and stole trade secrets when they joined Rosetta Stone.   Shortly after Open English sued Rosetta Stone in Florida, Rosetta Stone filed its own case against Open English in California; Rosetta Stone argues that the Florida case should be thrown out to allow the California case to go forward.  The parties disagree over whether Florida or California law would apply to the dispute, as well – what’s Californian for “conflict of laws?”
• Esteemed colleague P. Andrew Torrez wrote last year about this suit against Abercrombie & Fitch, alleging the clothing retailer violated Title VII by discriminating against employees who wore hijabs; now, the case is apparently settled for just over $70,000 – details here and here.   

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• A former U.S. Tennis Association umpire and referee has sued the Association’s Pacific Northwest Section for allegedly retaliating against her for complaining about men being selected over women to officiate at higher-ranked matches. 
• Motorola Solutions, Inc. (which makes police radios and other public-safety equipment) has sued one of its former senior executives in Illinois state court to stop him from heading up the public-safety business at Harris Corp.  Motorola claims that the former executive has violated his non-compete by taking the new job and that he could use Motorola’s trade secrets (such as pricing strategies) in the new job. 
• The Virginia Supreme Court (see Schuiling v. Harris) has ruled that an employment dispute between the owner of a car dealership and his housekeeper will have to be arbitrated even though their 2007 agreement to arbitrate specified that the arbitration would be administered by an organization that no longer exists.  The VSC said that the provision that specified the organization could be severed while leaving the rest of the agreement to arbitrate intact and that, under Virginia law, that means that the trial court can appoint an arbitrator.
• The SEC is seeking comment on proposed rules (see them here) that would require public companies to disclose comparisons between the total compensation of their chief executive officers and the median compensation of all of their other employees.  The rules would not apply to companies with less than $1 billion in annual revenue or less than $75 million in securities held by the public.
• Finally, as we tweeted yesterday, the Fourth Circuit Court of Appeals has held that a deputy sheriff in Hampton, Virginia had a First Amendment right to “like” his boss’s political opponent on Facebook without being fired for it.

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