Monthly Archives: June 2013

Court Finds Potential Liability For Sending Cease And Desist Letter

As in-house counsel or the human resources director, you have probably received a frantic phone call from the business folks telling you that a former employee disclosed trade secrets or violated a restrictive covenant and demanding that immediate action be taken. After gathering the facts, the next step is usually to send a cease and desist letter to the former employee, and oftentimes to the former employee’s new employer. Such letters generally set forth the applicable confidentiality or non-compete restrictions as well as the former employee’s offending conduct. As my colleague Kara Maciel recently noted in her blog posting, Cease and Desist Letters Enjoy An Absolute Privilege From Libel Claims, these letters, if properly written, may be protected from libel claims by the judicial proceedings privilege. A recent case, however, stands as a reminder that there may still be liability for writing an “overly zealous” – – and potentially inaccurate – – cease and desist letter. As this case out of the Southern District of New York demonstrates, it is critical to do your homework before sending (or having outside counsel send) such a letter, to the new employer.

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OSHA to Police Whistleblower Claims under the Affordable Care Act

By Paul Friedman and Meg Thering

Most prudent employers have begun efforts to ensure compliance with the Patient Protection and Affordable Care Act (“ACA”), which is bringing about myriad changes with which employers must comply.  Many employers are evaluating their employee populations, deciding whether it makes economic sense to continue offering coverage, and performing self-audits to ensure compliance.  Employers should also be aware that the Department of Labor has already started auditing employers for compliance.  What many employers may not be aware of, however, is that employees may bring whistleblower claims for violations of the ACA – and these claims will be policed by the Occupational Safety and Health Administration (“OSHA”).

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