“Without accountability, we cannot expect responsibility.”

From each and every event and circumstance, we can take away important lessons to guide our future actions. Some are obvious, others not. Some are important, others not. Bill O’Reilly’s recent contract termination by Fox News – despite his stellar ratings and very significant contribution to its revenues – offers one lesson for working people that, I believe, stands out among others. And, oddly enough, it has little to do with whether or not Mr. O’Reilly was “guilty as charged.”

This newsletter is less a “letter of news” than it is an observation on a societal change, and employees’ need to consider adapting to address change, in this order:
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“Freedom lies in being bold.”

– Robert Frost

ACTUAL “CASE HISTORIES”: On a daily basis many of our blog visitors submit questions about something more and more employees are facing: Non-Solicitation Agreements. These are agreements – or provisions in other agreements – that say, in effect, “After you leave this job, you cannot solicit business from our customers,” and sometimes also say, “Nor can you solicit our employees to leave our company.” Of course, every non-solicitation agreement is different; There is a wide variety of wording, phrases and details seen in different non-solicitation agreements.

Here is one question we recently received: “If my non-solicitation agreement has no limit on the geography it covers, and no limit on how long it lasts, is it still enforceable?”

Here is another question we received the very same day: “If my non-solicitation agreement forbids me from soliciting my former employer’s potential customers, isn’t that all of the people in the world?”

To try to explain better how non-solicitation agreements work – and don’t work – we decided to devote this newsletter entirely to them.

LESSON TO LEARN: There are basically three kinds of “restrictive covenants” – the legal term for “agreements to limit your future work-related activities – that employees commonly face.

(1) First, “non-compete” agreements, which generally provide “I will not work for a competitor of the company in a certain geographic area for a certain period of time.”

(2) Second, “non-solicitation” agreements, which generally provide “I will not try to reach out and get the business of the company’s clients or customers, or take away its employees.”

(3) Third, “non-disclosure” agreements, which generally provide “I will not divulge or use the company’s confidential information.”

Of these three basic types, “non-solicitation” agreements seem to be growing fastest both in popularity and problems, as non-compete agreements are increasingly viewed with disfavor by Courts, who are reluctant to keep people out of work in their chosen field, and non-disclosure agreements are quite simple: “Don’t share secrets.” Non-solicitation agreements, however, go right to the heart of business: access to, and control of, the customer relation.

Since “knowledge is power,“ and we seek to empower working people, we here deliver the basic knowledge you need to navigate and negotiate for yourself on this important subject:

WHAT YOU CAN DO: Read over this “A to Z of Non-Solicitation Agreements,” and you should find yourself both more comfortable and more capable in dealing with non-solicitation issues, questions and concerns.
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“The moment a little boy is concerned with which is a jay and which is a sparrow, he can no longer hear birds sing.”

– Eric Berne

ACTUAL “CASE HISTORIES”: One of the questions most frequently asked of employment lawyers – and of this blog – is this: “Do I have a strong employment discrimination case?” The reason seems obvious: so many people feel aggrieved at work, and so many people feel that, just maybe, the cause of the problem is “something” about them. What “something?” Perhaps their (a) age, (b) race, (c) gender, (d) disability, (e) pregnancy, (f) religion, (g) sexual orientation, (h) national origin, (i) genetic background, or other “protected classification” under federal, state and local laws.

To answer that question takes familiarity with the facts of the possible claim. Just as a doctor can know all there is to know about medicine, he or she cannot make a good diagnosis without knowing the patient. That takes blood tests, ex-rays, and the like. So, too, it is with lawyers: the “facts” of the case make it a strong case or a weak case. But you may not be a lawyer. Do you need a lawyer to decide if your employment discrimination case is strong or weak? Not in my opinion. Why not?

You know best the facts, events and circumstances of what happened to you, and how it compares with what happened to others. You know best the individuals concerned, and have a good sense of their intentions toward you. You know best the demographic makeup of those you work for and work with. All you need is a way to put those facts, events and circumstances into a framework of understanding. You can, with the right tools, determine whether you have a strong discrimination case.

And, so, in this newsletter we provide you with the way to determine – yourself – whether you have a strong case of discrimination in the way you are treated in your workplace. Here are the tools you need.

LESSON TO LEARN: Employment discrimination cases are quite common in our society, and seemingly more common as time goes by. That seems to be a result of three phenomena: (i) a strong societal determination to make employment opportunity a “level playing field” so that no one is excluded or given less a chance than others; (ii) a rather wide-ranging set of federal, state and municipal laws that make it fairly easy to raise a discrimination claim or legal case; and (iii) increasingly tough competition among employees for a limited number of jobs.

In very general terms, the law is comprised of (a) a set of rules, (b) nearly always borne of common experience and common sense, (c) intended to encourage us all to be honest and fair to each other. What many lawyers would have you believe – namely, that the law is (i) hugely complicated, (ii) incapable of being understood by most people, and (iii) warrants being paid a lot of money for sharing how it works – is just not true. To the contrary, there is a lot you can do for yourself.

This is especially important regarding employment discrimination law, because so many people have daily concerns about it, and have a yearning to understand it. And, too, because so many people unwittingly bring forth weak employment discrimination claims and cases, often with the encouragement of lawyers. So, in this newsletter we do our best to help. It’s better to know you have a strong employment discrimination case – or a weak one – before you raise a claim or hire an attorney.

Here’s how you can do that.

WHAT YOU CAN DO: If you want a good idea of whether you have a strong employment discrimination case or claim, here is how you can help yourself make that determination:
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Question: Last year, I hired an attorney to help me negotiate my severance package. When we were finally finished, I asked for one more thing: that my employer also pay my attorney’s legal fees. They agreed to pay the first $5,000 of the legal bill.

Recently, I received a tax Form 1099 saying that I was responsible for paying income taxes on that $5,000. Is this right?

Ashley
Pensacola, Florida

Answer: Dear Ashley: I am not a trained and experienced tax attorney, so I don’t offer tax advice. But, on this point of tax law, because it is related to severance, I can give you a clear answer: both you and your attorney must pay taxes on the same $5,000. Here’s why:
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Question: Dear Mr. Sklover: I just received notice that I must appear before a federal Grand Jury regarding something that may have been going on at my former job.

I am very distressed. What should I do? Please advise.

Melanie P.
Detroit, Michigan

Answer: Dear Melanie: I have had several clients in your circumstance during my career, and with each one I say this: “I am not trained or experienced in the criminal law, and so I really can’t advise regarding it. Nonetheless, I have learned a few things in my time, and I also have the good fortune of meeting highly qualified Criminal Defense Counsel.” Here’s what you need to know:

1. Without question, you need to immediately retain an experienced and qualified Criminal Defense attorney, who is licensed in your locale and well versed in Grand Jury procedure. Most, but not all, experienced Criminal Defense attorneys are either (i) former Prosecutors, or (ii) former Public Defenders, both of whom have seen the criminal justice system “from the inside.” 

If you receive a Grand Jury subpoena it is important that you have such an attorney “in your corner,” even if you believe you have done nothing whatsoever wrong. First, even if you have been assured that you are “not in trouble” or “are not a target of the investigation,” you might be, or you might later become a target due to something the Prosecutors or the Grand Jury learn during the investigation to take place. In fact, in most situations, it is only the Grand Jury – and not Prosecutors, investigators or police officers – who can decide who will be prosecuted for alleged wrongdoing. Also, you may have unwittingly, on the job, been associated with others who engaged in criminal behavior. 

For example, in the course of a Grand Jury investigation about fraud on customers of your former employer, it may come to light that your former employer also engaged in tax evasion, an entirely different criminal offense. It just might be that you had nothing whatsoever to do with defrauding customers, but you were somehow a part of the group whose work ended up engaged in the tax evasion, knowingly or not. 

Freedom is precious; being prosecuted can be one of the worst experiences of your lifetime. It is simply something that is hard to argue with: if there ever was a time you need to be guided by your own legal counsel, it is this one.     

To obtain names of experienced Criminal Defense attorneys in Detroit, you should contact the local Bar Association or Criminal Defenders’ Society. 

2. Because the Grand Jury subpoena is regarding your former employer, you might just also need to retain an attorney qualified and experienced in employment law, as well. In this specialized world of ours, our professionals need to be specialized to offer you the best professional guidance. I am an employment attorney, with little experience in criminal defense matters. Most of the very best criminal defense attorneys cannot claim to have experience or expertise in employment matters, either. 

Your appearance before the Grand Jury might cause employment-related issues you need to analyze and resolve if, for examples:

(a) you have signed an employment or severance agreement that requires that you promptly notify your former employer of such an event; 

(b) you still have deferred compensation (stock options, restricted stock, or other forms) that you might forfeit if you share confidential information with anyone; 

(c) you might be entitled to reimbursement of your legal fees for your criminal defense attorney under the by-laws of your former employer or the terms of an employment or severance agreement; 

(d) if your Grand Jury Subpoena requires that you provide documents to the Grand Jury, you might be violating confidentiality obligations or some other legal obligations to your former employer, or be violating some legal “privilege” by doing so; and

(e) your appearance before a Grand Jury might cause unintended or unexpected consequences for you with your current employer for a wide variety of reasons, including the fact that you owe a duty of loyalty to your present employer and you can’t be certain that the Grand Jury might not ask you questions about it, as well.

For individual attention and assistance, Mr. Sklover is available for telephone consultations lasting 30 minutes, 60 minutes, or 2 hours. If you would like to set up a consultation, just [click here.] 

3. Here’s something of an explanation of what a Grand Jury is. A “Grand Jury” is a group of people from your community who have been assembled to decide if criminal charges should be brought against a person or persons. They are used by both state Courts and federal Courts to listen to evidence and decide who should be prosecuted for serious crimes.

Why are they called “Grand?” Generally, because they are larger than trial juries; while juries rarely exceed twelve members, “Grand” juries in some localities consist of up to 23 people at one time. They also often stay assembled for a longer period than does a trial jury, in some instances for up to 36 months. As explained below, they also have kind of “grand” powers. 

A Grand Jury is convened by a Prosecutor, often after referral from police investigators, seeking to indict someone who it is believed committed one or more criminal offenses. In the Grand Jury, the Prosecutor presents evidence, and the Grand Jurors can ask questions of witnesses. The Prosecutor or the Grand Jury can issue subpoenas to get documents, witnesses or other forms of evidence.

Grand juries don’t decide if someone is guilty of a crime, but only if there is enough evidence to charge them with a crime, and if so to direct that they go to a trial. If a grand jury does decide to bring a serious charge against a person, it is called “voting a true bill” or “indicting” them. 

Both state and federal Prosecutors use Grand Juries, but the state and federal Grand Jury procedures are often quite different.

4. It is most important to note that Grand Juries are very “one-sided,” meaning (a) they have no Judges supervising, (b) are operated in secrecy, and (c) do not permit people to have their lawyers with them. Because Grand Juries do not convict people of crimes or send people to jail, they have very few procedural safeguards: (a) They have no Judge to supervise what goes on. It is “one-sided” because supervision is only by a Prosecutor, who is seeking to gain an indictment; (b) They are entirely closed to the public and operated in secrecy, meaning there is no openness to public scrutiny; and (c) people appearing before Grand Juries are not permitted to have an attorney present with them.

5. Compounding the “danger” of Grand Juries is that they need far less evidence to indict (that is, bring charges against) a person than trial juries need to find them guilty of a crime. For me, this is the most important thing for people to understand about Grand Juries: they do not need much evidence to indict a person of a crime. Whereas trial juries need to find there exists “proof beyond a reasonable doubt,” Grand Juries need to find only that there exists “probable cause” to do so, which is a much, much lower standard of evidence or proof. There is an old saying, attributed to many different people: “A Grand Jury could indict a ham sandwich.”

6. Your Criminal Defense Counsel can Counsel you, Prepare you, and Negotiate for You. In this circumstance, your Criminal Defense Counsel can counsel you regarding what your vulnerability may be in this process. He or she can also prepare you to testify truthfully, and fully, but also carefully when you appear before the Grand Jury. Since your subpoena probably asks that you provide documents if you have any for the Prosecutor and Grand Jury to review, your Criminal Defense Counsel can also assist you in that process. Most importantly, your Criminal Defense Counsel will likely negotiate for you both possible immunity from prosecution based on the information you provide, and might even be able to make your personal appearance before the Grand Jury unnecessary. Your Criminal Defense Attorney may, with some limitations, be able to request of your former employer that it reimburse you for your legal expense in this process. As you can see, having an experienced Criminal Defense Attorney on your side and “in your corner” is a real must-do. 

And, too, if you have somehow been involved in illegal activity, your Criminal Defense Attorney can “bargain” for you either immunity or a reduced penalty for your offenses.

I hope and expect this is of some help to you, and that things go well for you in this circumstance.

My Best to You,
Al Sklover

P.S.: Want to learn more of this “good stuff” regularly? You can Receive Each of Our Blog Posts Automatically, Free, By Email if you just [click here.] And we promise: we never sell, lease or let anyone see our subscriber list. Never, ever. 

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