Monthly Archives: April 2011

What Employers Need to Know to Avoid Retaliation Claims

So far, 2011 is turning out to be a banner year for decisions expanding the anti-retaliation provisions of several federal statutes.  In recent months, the United States Supreme Court issued three (3) significant decisions which expanded the scope of protections against retaliation for employees.

On January 24, 2011, the Supreme Court issued its decision in Thompson v. North American Stainless, LP, __ U.S. __ (2011), the Court held that protection from retaliation extends beyond the employee who actually opposed discrimination to her fiancé who also worked for the employer.  Title VII of the Civil Rights Act (“Title VII) makes it “an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed an unlawful employment practice or because he has made a charge under Title VII” (42 U.S.C. § 2000e-3).  The Court concluded that taking a retaliatory adverse action against the fiancé, the employer was hurting the employee who engaged in the protected activity of opposing discrimination at work. 

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The Longest Lasting Non-Compete Case Of All Time?

Non-compete litigation is generally fast and furious, with witness interviews, fact gathering, drafting, requests for injunctive relief, and expedited discovery all happening within a very compressed timetable. Accordingly, a recent decision issued by the Indiana Court of Appeals (Think Tank Software Development Corporation v. Chester, Inc., et al.) in a case filed in April of 2002 is a “head scratcher”: how could any non-compete case take nine years to resolve? The short answer is that after some initial skirmishing over a restraining order, a change of venue, and the dissolution of that restraining order, the case apparently went dormant for two years. Then, after an unsuccessful motion to dismiss the case for want of prosecution in 2004, the case lurched into discovery which lasted until November 30, 2009. The defendants then successfully moved for summary judgment, after which the case moved on to the Court of Appeals, which affirmed in part and reversed in part, sending the case back to the trial court . . . for still further proceedings.

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Ask Friday!

Here at Zen I’ve decided to start a weekly post called “Ask Friday!” where I’ll take a reader question and answer it.  You can leave your questions in the comments for any post, if you’d like, or message me on Twitter, LinkedIn or Facebook.

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Section 409A Compliance: Release of Claims Provisions Require Employer Action Now

In Notice 2010-80, the Internal Revenue Service (“IRS”) expanded the methods and procedures for correcting provisions in deferred compensation plans or employment, severance, or other agreements that are in violation of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and the guidance issued thereunder. The IRS also provided in Notice 2010-80 additional guidance and transitional relief for documentary failures relating to the common practice of conditioning payments that are payable upon termination on the employee’s execution of a release of claims. As discussed below, in order to take advantage of the transitional relief, there are specific rules to follow and a plan amendment may be required. These rules also apply to other employment-related actions, such as the execution and submission of a noncompetition or nonsolicitation agreement.

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Eugenija Sutkienė has been elected a member of the Board of Lithuanian Bar Association

Ms Eugenija Sutkienė, Managing Partner of TARK GRUNTE SUTKIENE, was elected a member of the Board of Lithuanian Bar Association at the general meeting of attorneys held on 22 April.

Three members of the Court of Honour of the Lithuanian Bar Association have also been elected at the meeting. Ass. Prof. Dr. Leonas Virginijus Papirtis has been re-elected the chairperson of the Lithuanian Bar Association.

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TARK GRUNTE SUTKIENE lawyers acted as referees in Moot Court Competition START 2011

On 26 April, the finals of the national Moot Court Competition START 2011 organised by the Lithuanian National Group (ELSA Lithuanian) of the European Law Students’ Association were held in the Vilnius City 3rd Local Court. The best six teams of law students that paved their way from the semi-finals competed in the final round of the competition. This year, the topic of the finals was Law of Financial Instruments Market.
Vidmantas Drizga, Partner of TARK GRUNTE SUTKIENE was a member of the panel of judges who assessed legal reasoning and arguments, language culture, ethics, oratory skills and originality of the finalists.

B. Poderis and A. Banys became the winners of the completion. G. Grigalauskaitė and I. Grabauskaitė won the second place and S. Vilčinytė and E. Klimavičiūtė became the third place winners.

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Inga Klimašauskienė has joined TARK GRUNTE SUTKIENE

Attorney-at-law Inga Klimašauskienė has joined the Dispute Resolution and Competition Group of TARK GRUNTE SUTKIENE.

In 2003-2007, Inga worked as a lawyer with UAB G4S Lietuva. In 2007-2011, she was an attorney-at-law in the law office of attorney-at-law Jonas Ivoška and had internship at the law office Atkin Chambers in London. She specialises in litigation and arbitration.
In 2005, Inga Klimašauskienė graduated with a master‘s degree from Vilnius University, Faculty of Law. From 2008, she holds an LL.M. degree from Suffolk University Law School in Boston, USA.

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Minimize Your Risk of Invalidating the Tip Credit Paid to Tipped Employees Performing “Dual Jobs”

By:  Douglas Weiner and Charles H. Wilson

In a recently reported case from the Eighth Circuit Court of Appeals, Applebee’s servers and bartenders alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and, therefore, should be paid the minimum wage of $7.25 for the time spent performing non-tipped work, rather than the direct wage of $2.13 the FLSA allows employers to pay employees in tipped occupations See 29 U.S.C. § 203(m) and 29 U.S.C. § 203(t).

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Do you know the status of your workers? The right answer is more important than ever.

On April 28, a multi-disciplinary team of McDonald Hopkins lawyers explored the issue of worker classification – and misclassification – and the impact it can have on your business. With perspectives from tax, employee benefits, business law, and labor and employment attorneys, the panelists discussed the various tests used for distinguishing employees from independent contractors as well as potential liability under the Internal Revenue Code, the Employee Retirement and Income Security Act, and the Fair Labor Standards Act, among others. Panelists also offered tips for avoiding some of the most common mistakes found in employment agreements, benefit plans, and other business records.

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Minimize Your Risk of Invalidating the Tip Credit

By Douglas Weiner and Charles H. Wilson

In a recently reported case from the Eighth Circuit Court of Appeals, Applebee’s servers and bartenders alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and, therefore, should be paid the minimum wage of $7.25 for the time spent performing non-tipped work, rather than the direct wage of $2.13 the FLSA allows employers to pay employees in tipped occupations See 29 U.S.C. § 203(m) and 29 U.S.C. § 203(t).

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