June, 2011

“Cat’s Paw” doctrine applies to claims of age bias

June 3, 2011 | by Eric B. Meyer

Wednesday night was crazazy, yo!

I had this dream that was I slaloming down a snowy mountain towards a giant fortress under a hail of gunfire. But the next thing I know, I wake up and I’m falling down this elevator shaft. And, just as I’m about to bite it, I find myself in a car submerged underwater, having just taken a 100-foot fall from the bridge above.

And then I’m in my bed.

It’s 3 am and I am dripping sweat. I tap the Joe Beimel bobblehead on my nightstand — I know I shouldn’t have told you about my totem but, damnit, I love my readers.

Just as I’m starting to get my bearings, what hit me next was ten times as powerful as any three-tiered Inception dream and it kept me up for the rest of the night:

Could the United States Supreme Court’s decision in
Staub v. Proctor Hospital, in which the Court affirmed the
theory of subordinate bias — or “cat’s paw” — in an
action under USERRA, equally apply to claims brought
under the Age Discrimination in Employment Act (ADEA)?

But, oh hells-to-the-yeah, the Tenth Circuit, sensing my angst, issued an opinion on Thursday answering all of my questions. So, while I grab my meds, you hit the jump and find out if the cat’s paw doctrine applies to ADEA claims.

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POLL: Would you ever announce your retirement online?

June 2, 2011 | by Eric B. Meyer

Yesterday afternoon, Shaquille O’Neal (@Shaq) put an end to an illustrious 18-year NBA career in a single tweet:

As I type this post — during the second intermission of the Stanley Cup Finals — the hashtag #ShaqRetires is still trending on Twitter.

So, the question is, would you ever use social media to announce your retirement?

Is a non-compete agreement signed months after work begins enforceable?

June 1, 2011 | by Eric B. Meyer

I was reading a blog post from Jennifer L. Gokenbach at the Colorado Employer’s Law Blog, discussing how, as of yesterday, Colorado deems continuation of at-will employment to be sufficient consideration to support a non-competition agreement. In non-lawyer speak, that means that if an employee signs an agreement not-to-compete in Colorado after the employee starts working, on the condition that if the employee does not sign the agreement then the employee will be fired, the employer may later enforce that agreement.

That’s now the law in Colorado. Is that also the law in PA, NJ, and DE?

Delaware: Yes. Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del.Ch.1983).

New Jersey: Yes. Hogan v. Bergen Brunswiq Corporation, 153 N.J.Super. 37, 378 A.2d 1164 (App.Div. 1977).

Pennsylvania: No. An agreement not to compete with a former employer must be supported by new consideration; i.e., a change in the conditions of employment (e.g., a raise, promotion, or other financial benefit). Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279, 280 (Pa. 1974).