Eight unconventional reference-check questions
July 8, 2008
The Business Pundit blog suggests eight questions, going beyond the usual ones, for hiring managers to ask when they check a candidate’s references.
On a related subject, here’s a list of legal and illegal interview questions by the University of Albany Office of Human Resources Management. I don’t know how current or accurate it is, but it looks like it might be a useful guide.
Signed Google’s non-competition clause, then got laid off
April 12, 2008
According to a Valleywag report, Google asked employees of its recent acquisition DoubleClick to sign a new employment agreement. The employment agreement contained a non-competition clause and a non-solicitation clause. A week later, the lay-offs began.
Question: Will Google be able to prevent the laid-off DoubleClickers from going into competition? The comments to the Valleywag piece add up to a great general overview of some key legal issues, such as:
- in California, non-competition clauses for employees as such are pretty much unenforceable per se (but many of the DoubleClick employees were based in New York);
- in some states (such as Texas), non-compete clauses require separate consideration;
- even if a non-competition clause turns out to be unenforceable, a non-solicitation clause, prohibiting the former employee from trying to hire people away from the former employer, might be another story.
Keep your legal bills down when changing jobs: Leave your former employer’s files behind
April 1, 2008
If you’re leaving a job, you can keep your legal bills down by not taking copies of your former employer’s non-public business information with you.
If you take files, it might not be clear
that you’ve done nothing wrong
You might not have any intention of using the former employer’s information for an improper purpose. You might swear up and down that you never even looked at the copies you took with you — or that you did look at the copies, but not for anything the former employer might object to.
Your former employer might not believe you. In fact, if there’s any bad blood at all between you, your former employer probably won’t believe you.
The mere fact that you took the copies might be deemed evidence of possible wrongdoing. It might be enough evidence to entitle your former employer to a trial.
A case study
For an interesting case study, read the court’s opinion in L-3 Communications Westwood Corp. v. Robichaux, No. 06-279 (E.D. La. Feb. 29, 2008) (granting in part but denying in part defendants’ motion for partial summary judgment).
In the L-3 case, two former employees (a husband and wife) some months before being fired, had backed up the entire contents of their laptops to an external hard disk. They admitted looking at source code on the backup after they were fired. The husband had also provided his father (himself a former employee) with company documents.
All three denied doing anything improper with the information. But the court held that there was sufficient evidence of possible wrongdoing to require a trial. See id., slip op. at 11-12.
Trial preparation legal bills can be killers
Trials are expensive enough for the parties, but trial preparation is what really runs up the legal bills. (The vast majority of cases settle before trial anyway.) During pre-trial prep, the lawyers for both sides will spend a lot of time reviewing documents; interviewing potential witnesses; figuring out how to present it all to the judge and jury; and arguing to the judge about what the jury should be allowed to hear and see.
You probably aren’t keen on spending that kind of money on legal fees. That being the case, you’re usually better off making it a point not to take anything with you that’s even arguably confidential to your former employer.
(It’s another story if the business information is publicly available, but that in itself can be another fight.)
In the L-3 case mentioned above, the three defendants are likely to settle the case, possibly on unfavorable terms. If they don’t settle, their legal bills, for trial preparation and the actual trial, could be devastating.
The lesson: When leaving a job, it’s usually best not to take anything with you that you’re not indisputably entitled to keep.
Layoffs - advice for GCs on how to manage them
March 24, 2008
Dallas lawyer Michael Maslanka writes in Texas Lawyer about how to manage layoffs, including suggestions for drafting litigatable releases (hint: simpler is better, and no release is better than a spurned one).
Here’s the drill: If offering two weeks severance only, forget the release, and just give the money. A release offered and refused is admissible as evidence of consciousness of guilt. …
A more fundamental release challenge is that lawyers assume one size fits all; they believe a release used 10 years ago is good to go for today, and they try to sound smart by drafting densely written, 20-page releases. It’s as if there was one release drafted in the misty past, handed down from generation to generation, and used again and again without question.
Here’s the deal:
- Make it simple with bullet points and check marks, and boil it down to a few pages. The goal is to get the employee to sign it, not show legal virtuosity.
- Write in active voice, not passive. Releases saying that the employee has been advised to consult an attorney are invalid; the release must say that the company advises the employee to consult.
- Think ahead: Extinguish any outstanding issues on reimbursements owed and commissions due; but don’t extinguish all obligations, such as an existing covenant not-to-compete, with a merger clause.
(Extra paragraphing and bullets added.)