The arguments for and against non-compete agreements

President Obama’s final term is coming to a close, and we find an article in Fortune about his October pitch to ban non-compete agreements, which the author says would “make the rich richer.”

The author primarily focuses on low-wage workers:

“Low-wage workers are precisely the group that will benefit from signing agreements not to compete, because they are the ones most in need of the training and life skills that a first job can provide.”

The author’s case assumes a direct tie from training and life skills to the existence of non-compete clauses.

According to this logic, a worker is hired and then trained by his or her employer. After the training period , the worker quickly “jumps ship” to another employer for more pay. There’s no non-compete clause, so the employer is helpless to do anything about it. Therefore, that employer will simply choose not to train new employees.

The trouble with this logic, however, is that employers must train in all new employees for the job they were hired to do. Would employers suddenly forego training and opt instead not to hire? Would the lack of non-compete clauses in employment contracts be that competitively troublesome?

Perhaps.

But it is difficult to see how the absence of a non-compete clause alone would prevent employers from hiring unskilled workers, who must be trained either way.

Dealing with a non-compete clause?

What the author of the article fails to mention is that employment contracts often serve employer interests, not employee interests. This assertion applies to non-compete clauses as it does to other aspects of employment contracts. All too often, a non-compete clause actually unfairly limits the employee’s ability to work. Contact Alan Lescht and Associates today if you’re facing a dispute regarding a non-compete clause.

Settlement may be preferred in some wrongful termination claims

In Washington, DC, employees can sue their employers for wrongful termination. If the plaintiff wins his lawsuit, a court may order the employer to give the plaintiff his job back and to pay him monetary damages. However, there is always the chance that the employee’s lawsuit will not succeed, and he will end up with nothing, except for legal bills. Moreover, it is frequently difficult to prove wrongful termination. Therefore, settlement is an option employees should consider.

Many wrongful termination lawsuits never see a courtroom. In order to win a wrongful termination case, the plaintiff must prove that he was fired for an unlawful reason, such as discrimination or retaliation for whistleblowing. In most cases, it is very difficult to prove this to a jury. Therefore, settlement may be the best option, depending on the facts of the case and the plaintiff’s resources.

Wrongful termination plaintiffs must prove damages

Valuing a wrongful termination claim can depend on a number of factors. Lost wages are an important part of damages. Lost wages is the amount of money the plaintiff would have earned if he had not been fired.

However, the employee must prove that he tried to minimize his damages. For example, the employee may have to show he applied for other jobs and applied for unemployment. Any other wages earned and unemployment benefits will be subtracted from the amount a court could award.

Lost benefits are another factor in valuing a wrongful termination claim. For example, a plaintiff frequently has to pay more for health insurance under an individual plan than he did under an employer plan. Emotional pain and suffering is also a factor in damages. An employee could get monetary damages if he can prove that his employer’s actions caused him emotional harm.

In the end, if an employee does decide to settle a wrongful termination case, it is important that the amount he or she receives in the settlement is fair. It may be helpful to obtain legal advice from an attorney about whether you should accept a settlement offer.

Contract Alan Lescht and Associates today if you believe you have been wrongfully terminated.

Changes coming to federal security clearance system

A new federal agency will soon take over security clearance and background investigations. The National Background Investigations Bureau (NBIB) will replace the Federal Investigative Services program in the coming weeks and months. Like its predecessor, the new agency will be responsible for handling security clearance investigations and background checks – a critical function for vetting employees and contractors who will have access to sensitive government information.

Announced by the White House in early 2016, the NBIB aims to:

  • Enhance the security of private data, especially in the wake of major hacks that compromised the data of 22 million Americans last year
  • Ensure greater accountability when it comes to maintaining cyber security and preventing data breaches
  • Address the backlog of pending security clearance investigations
  • Modernize legacy systems with more automation and greater efficiency

The new agency will still be housed within the Office of Personnel Management (OPM); however, the Department of Defense will manage its IT systems. This arrangement will hopefully result in a stronger IT infrastructure – one that’s resistant to cyber attacks.

Fewer delays but increased costs for security clearance process

For many federal employees and contractors, security clearances are necessary to perform their jobs. Yet those seeking clearance currently face delays of up to 200 days, thanks to substantial backlogs.

OPM recently awarded contracts to vendors who will help work through these backlogs. Once in place, the new agency will leverage improved systems to minimize delays.

It’s unclear exactly how this new infrastructure will work, however. Some sources are speculating that the agency will factor in consumer data such as credit scores and predictive analytics to paint a fuller picture of individual applicants.

Along with these improvements, security clearance costs are expected to rise in the coming years.

Contact Alan Lescht and Associates today if you need legal representation regarding your security clearance.

The basic components of a whistleblower case

As the name implies, a whistleblower is someone who publicly discloses the criminal activity or other misconduct of their employer without their employer’s consent. In most cases, the act of blowing the whistle is dangerous for an employee, as they have put their employer in the spotlight in a negative way. Because of this, there are measures in place to protect the whistleblower if they encounter retaliation as a result of the whistleblower activity.

However, whistleblower protections vary widely based on the type of activity, your employer and where you live. There is no general definition or universal list of whistleblower activity that is protected, and sometimes the measures could be difficult to overcome. For example, the statute of limitations in most whistleblower cases begins when an employee learns that they will be retaliated against, rather than when they are actually retaliated against. In some federal whistleblower statutes, the statute of limitations is as little as 30 days.

In any case, for the whistleblower, the main component of his or her case against their employer calls for proof that they were retaliated against as a result of his or her whistleblower activity. In addition, the case should take into account things such as the statute of limitations for the activity and what sort of damages can be recovered from the employer as a result of the case.

With the vague, difficult and sometimes dangerous nature of whistleblower activity, consultation with an attorney as soon as possible is highly recommended to discuss your rights and ensure as much as protection as possible from the employer’s possible retaliation.

Avoiding nepotism in government employment

Nepotism is common in the private sector – especially among small, family-run businesses. But in government jobs, it’s a conflict of interest that could derail your career.

Nepotism in any form is prohibited among federal employees, and for good reason. The government has an obligation to maintain competitive, open and merit-based personnel practices. Nepotism unfairly shuts out qualified applicants and creates hurdles that shouldn’t exist. As a type of corruption, it’s not only unethical but also illegal, and it can be a criminal offense.

The sometimes blurry boundaries of nepotism

What exactly is nepotism? In the context of the government, it’s any favorable treatment toward relatives that compromises fairness, integrity and neutrality.

Nepotism commonly arises in the employment process. However, it isn’t limited to hiring. It can also come up in contracting, reviewing, inspecting and other dealings with third parties.

While nepotism is more frequent in entry-level government positions, it sometimes extends to higher-level officers. For example, the former director of a government contracting division was recently indicted on fraud charges involving nepotism. She allegedly pressured a contracting company to hire her husband, brother, sister-in-law and father – all for comfortable salaries.

Navigating gray areas

Nepotism isn’t always obvious, and it isn’t always done with bad intentions. Government employees might cross into a gray area when they express interest in a vacant position on behalf of a relative they believe is well-qualified. Moreover, just because a highly credentialed applicant has a relative working in the same agency shouldn’t mean that person is ineligible.

The Merit Systems Protection Board (MSPB) has provided general guidance on how to navigate these sticky situations. The MSPB urges employees to always err on the side of honesty and transparency. Employees should disclose potential conflicts to the appropriate ethics office and recuse themselves when needed.

Yet these standards aren’t always clear-cut. For example, there is no consistent guidance on when an optional disclosure form should be used to identify whether job applicants have relatives in the same agency. And even those who follow the MSPB’s guidelines could come under fire later. As attorney Alan Lescht noted in a recent article, employees might submit full disclosures and maintain total transparency, yet these could still get overlooked in the shuffle of bureaucracy.

Steering clear of impropriety with big changes ahead

Ongoing training and more detailed guidance are essential for helping federal employees steer clear of impropriety. As the change in our nation’s presidential administration approaches – bringing massive staff turnovers and thousands of new appointment opportunities – the need for straightforward, easy-to-follow procedures will intensify.

The bottom line: Transparency shouldn’t be difficult to attain for employees, officers, managers and other government personnel.

How a Trump victory could affect federal employees: Fewer rights, less job security and potentially 20,000-plus layoffs

Presidential candidate Donald Trump is well known for his “Your fired!” catchphrase from the reality TV show The Apprentice. He would live up to that slogan by making it easier to fire federal employees if he gets elected in November.

New Jersey Governor Chris Christie, who heads Trump’s White House transition team, told the press that Trump believes the process for firing civil servants takes too long and involves too many hurdles. Trump’s administration cited concerns that Obama would convert political appointees to civil servants, granting them greater job security and equal pay rights.

Employment rights for civil servants: Rooted not just in the law, but also in the Constitution

Government employees have due process rights when it comes to losing their jobs. These rights – which are rooted in the Fifth Amendment to the U.S. Constitution – include a requirement for just cause and an opportunity to challenge the firing.

The Civil Service Reform Act of 1978 (CSRA) further outlines the procedures for firing, disciplining and demoting federal employees. Passed several years after the Watergate Scandal, this law established the Office of Personnel Management and the Merit Systems Protection Board. Both agencies play important roles in protecting the rights of federal employees.

Big changes for federal employees if Trump gains the White House

It’s unclear how, exactly, Trump would change existing federal employment procedures. However, Trump’s previously announced policies would impact government employees in key ways:

Although the details of these proposals have yet to be outlined, one thing is clear: A Trump victory in the November election would have a major impact on federal employees at all levels.

The baffling reality of age discrimination: How too much experience can impede your career

When it comes to the workforce, experience can cut both ways. Many advanced careers require years or decades of demonstrated experience. However, older workers are increasingly finding themselves shut out of career opportunities simply because of age discrimination.

Employers sometimes overlook well-qualified seniors in favor of fresh young faces. When they make employment decisions purely based on age, however, they may be breaking the law.

The Age Discrimination in Employment Act (ADEA) makes it illegal for most employers to discriminate against those ages 40 and older. Unlawful and unfair treatment can happen at any stage of the employment process, including:

  • Hiring
  • Salary and benefits
  • Working conditions
  • Advancement opportunities
  • Layoffs, firings or forced retirements

What can you do about age discrimination?

You might be entitled to bring a legal action against your employer for compensation, reinstatement (if appropriate) and punitive damages. Before doing anything, though, talk with a lawyer about your rights. Don’t put off this important first step. If you wait too long, important deadlines could pass and evidence could fade, leaving you out of luck.

The problem of proof

You might know, deep down, that you were a victim of age discrimination. Proving it is another matter. Unless you’re lucky enough to find a smoking gun, you likely won’t have a concrete admission from your employer that their unfair actions were based on your age.

Fortunately, many types of evidence might shed light on your situation. For example:

  • Perhaps your employer has engaged in an ongoing pattern of discriminatory action against older employees
  • Maybe other employees have witnessed offensive remarks or persistent harassment
  • Maybe you reported the age discrimination internally and your concerns were ignored – or, worse, you were fired in retaliation

You should never feel forced to remain silent about illegal age discrimination. By making your voice heard, you can seek justice and accountability – not only for yourself, but also for others in similar situations. Contact Alan Lescht and Associates today if you have been discriminated against because of your age.

How social media can affect your security clearance

Social media provides a window into the private lives of individuals. Sometimes, that window can reveal red flags that cast doubt on the character of those entrusted with our nation’s secrets.

A federal policy released last month allows agencies to consider social media when vetting employees or contractors for security clearances. The policy covers traditional social media platforms – such as Facebook, Twitter and Instagram – as well as other types of user-generated Internet content such as comments and discussion forums.

The move reflects a growing recognition of the insights social media can offer when it comes to evaluating risks. As part of a “whole person” approach to reviewing security clearance applications and renewals, social media profiles are difficult to ignore.

What this means for you

Security clearances are valuable credentials. Your clearance may be essential for your career. Fortunately, the new policy doesn’t mean you will have to steer clear of social media entirely.

Securing – and maintaining – these clearances has always required passing a rigorous background investigation. The new policy simply adds another dimension to that inquiry. Importantly, it is limited in scope to public postings only. Agencies won’t require applicants to divulge their login information, nor will they require disclosure of every social media handle.

The takeaway: Use common sense

It’s no secret that questionable behaviors can potentially jeopardize your clearance.

And, as most people are by now well aware, there is no such thing as true anonymity on the Internet. Taking a commonsense approach to your social media presence can go a long way toward safeguarding your security clearance.

What can my old boss say in a job reference?

The reference can be a problem when it comes to getting a new job, especially if you’ve been fired from your old one. If your former employer says the wrong thing, it can very well mean you’ve lost the opportunity.

So, what can HR or your old boss say?

How the law works

In general, each state regulates what a former employer can and cannot say in a job reference. In general, information provided should be limited to your actual on-the-job performance.

This can mean many things.

In Maryland, for example, former employers can disclose information about your job performance, as well as why you left the company. In Virginia, former employers can disclose information about your “effort” and “productivity,” along with information about disciplinary action or performance improvement plans and overall professional conduct.

Perhaps your old boss just doesn’t like you

A lot can be said about your job performance in a reference, some of which may go outside of what the law allows in your particular state. Your old boss may give false information, for example, to damage your reputation, because she simply doesn’t like you. It may have nothing to do with actual performance, but it will likely cost you that new job just the same.

If this happens to you, you may have a cause of action.

Talk with an employment lawyer

At Alan Lescht & Associates, P.C., protecting your job is our job. If you believe that your former employer is railroading your future job prospects, call us at 202-536-3315.

You want to get that new job, not be shot down because your former employer acted unfairly.

Pregnancy discrimination: Pregnant nurse forced out of her job at the clinic

True story – well, to protect confidentiality, it’s true enough. This is the story of a nurse who had trouble getting pregnant, and once she did get pregnant, her employer only made things worse.

We’ll call her Nancy.

Nancy had a problem. She wanted a new job. Though the work was often very fulfilling, she’d had enough of her role as a PICU nurse. She wanted something new and different to do within the field of nursing. And, frankly, she was sick of the long hours on her feet and the night shifts.

So she set out to find one.

Now, given the hot job market for nurses, Nancy’s high performance in the PICU, and a great referral from a nursing friend and colleague, it wasn’t difficult for Nancy to find a new job as a nurse supporting neurosurgeons in a clinical setting. It suited her well – great pay, relatively fulfilling work, regular 9-to-5 hours.

This was just the type of thing Nancy needed, especially since she wanted to start a family.

But getting pregnant was Nancy’s other problem.

She and her husband had been actively trying to get pregnant for months. Now, they were going down the path of assisted reproduction, with the possibility of IVF looming in the back of Nancy’s mind. Nancy was starting to wonder whether she’d ever be able to get pregnant.

But, no matter how it happened, it would be their first child, and Nancy wanted that more than anything.

Nancy gets the job AND gets pregnant. Then she’s forced out.

At first, it seems like Nancy has solved both of her problems. Shortly after she finds that great new job at the clinic, a miracle of miracles: Nancy discovers she’s pregnant, no IVF required, just a bit more time than she and her husband figured they’d need to get pregnant with their first.

Ultimately, the doctor orders bed rest.

Fast-forward a few months: Nancy’s starting to show, which is great, but it turns out that this pregnancy won’t be free of some bumps and bruises. The doctor wants Nancy in for more-than-regular check-ups, to monitor Baby’s health and Nancy’s, which requires that she be out of the office regularly. Nancy’s superiors are supportive, but HR grudgingly goes along with it.

What can you do, right?

Nancy feels she has no choice but to quit.

But then, another couple months go by, and to protect Baby and bring it to as full term as possible, the doctor orders bed rest.

This Nancy’s employer will not accept.

HR refuses to make a reasonable accommodation and allow Nancy to work from home (which other employees at this clinic have done in the past) as per “company policy” and because Nancy hasn’t “been there long enough” (less than a year), citing eligibility under FMLA. (All this despite the assertions of Nancy’s boss that they value her contributions and want Nancy to keep working there.)

Ultimately, Nancy feels she has no choice but to quit.

Did Nancy try to game the system when she got pregnant? Or is she somebody who desperately needs legal protection?

You’re not alone. Things like this happen to people more often than it should. If it ever happens to you, talk with a lawyer who understands. Suing your former employer is one thing – but suing as a nurse is another. The healthcare field is a small world. We’ll help you walk through the pros and cons.