<?xml version="1.0" encoding="utf-8"?><rss version="2.0"
	xmlns:content="http://purl.org/rss/1.0/modules/content/"
	xmlns:dc="http://purl.org/dc/elements/1.1/"
	xmlns:atom="http://www.w3.org/2005/Atom"
	xmlns:sy="http://purl.org/rss/1.0/modules/syndication/"
		>
<channel>
	<title>Comments on: How Not to Lay People Off</title>
	<atom:link href="http://xrlq.com/2008/05/06/how-not-to-do-layoffs/feed/" rel="self" type="application/rss+xml" />
	<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/</link>
	<description>Politische Kommentare mit Snarkenremarken</description>
	<lastBuildDate>Thu, 09 Sep 2010 00:42:24 +0000</lastBuildDate>
	<sy:updatePeriod>hourly</sy:updatePeriod>
	<sy:updateFrequency>1</sy:updateFrequency>
	<generator>http://wordpress.org/?v=3.0.1</generator>
	<item>
		<title>By: jjv</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-405383</link>
		<dc:creator>jjv</dc:creator>
		<pubDate>Thu, 08 May 2008 23:33:16 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-405383</guid>
		<description>XLRQ,

The don&#039;t reapply language is inserted to prevent further discrimination suits. It evolved from famous cases where the company settled with someone claiming racial or sexual discrimination, they clearly did not want that person around, but then did not hire him or her when they applied for there old job, one where they were clearly the most qualified.

jjv</description>
		<content:encoded><![CDATA[<p>XLRQ,</p>
<p>The don&#8217;t reapply language is inserted to prevent further discrimination suits. It evolved from famous cases where the company settled with someone claiming racial or sexual discrimination, they clearly did not want that person around, but then did not hire him or her when they applied for there old job, one where they were clearly the most qualified.</p>
<p>jjv</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: dgj</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-405027</link>
		<dc:creator>dgj</dc:creator>
		<pubDate>Wed, 07 May 2008 17:03:47 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-405027</guid>
		<description>I think the &quot;word to the wise&quot; phrase is meant to express the idea that, if your auditors are wise, they will heed your words; and if they aren&#039;t, maybe they won&#039;t.  Along the lines of the biblical addresses to those who have &quot;ears to hear.&quot;</description>
		<content:encoded><![CDATA[<p>I think the &#8220;word to the wise&#8221; phrase is meant to express the idea that, if your auditors are wise, they will heed your words; and if they aren&#8217;t, maybe they won&#8217;t.  Along the lines of the biblical addresses to those who have &#8220;ears to hear.&#8221;</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Phelps</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-405020</link>
		<dc:creator>Phelps</dc:creator>
		<pubDate>Wed, 07 May 2008 16:12:37 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-405020</guid>
		<description>I think the &quot;no-reapply&quot; thing is to preclude any notion that this is a layoff.  A lot of states (don&#039;t know about CA) require employers to rehire the people they laid off if the position reopens, before they can bring in new people.</description>
		<content:encoded><![CDATA[<p>I think the &#8220;no-reapply&#8221; thing is to preclude any notion that this is a layoff.  A lot of states (don&#8217;t know about CA) require employers to rehire the people they laid off if the position reopens, before they can bring in new people.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Xrlq</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-405017</link>
		<dc:creator>Xrlq</dc:creator>
		<pubDate>Wed, 07 May 2008 16:03:45 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-405017</guid>
		<description>DB, I&#039;m not sure where you get your information from but California does indeed forbid non-competes.  &lt;a href=&quot;http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&amp;group=16001-17000&amp;file=16600-16607&quot; rel=&quot;nofollow&quot;&gt;Section 16600 of the Business and Professions Code&lt;/a&gt; provides that:

&lt;blockquote&gt;Except as provided in this chapter, every contract by which
anyone is restrained from engaging in a lawful profession, trade, or
business of any kind is to that extent void.&lt;/blockquote&gt;

The chapter goes on to provide a few discrete exceptions for sale of a business (B&amp;P Sec. 16601), withdrawal or dissolution of a partnership or LLC (B&amp;P Secs. 16602, 16602.5) and customer lists of answering services and employment agencies (B&amp;P Secs. 16606, 16607), but nothing remotely analogous to an associate&#039;s position at a law firm.  Independent consideration is irrelevant.  [Whether the provision in question &lt;i&gt;should&lt;/i&gt; be considered a non-compete is, of course, a wholly separate issue.  To the extent it only prohibits her from seeking employment from PH itself, and not from any &quot;Released Parties&quot; who may leave and start firms of their own, it&#039;s probably not.]

As to mandatory arbitration clauses, I don&#039;t think &lt;a href=&quot;http://caselaw.lp.findlaw.com/data2/californiastatecases/s075942.pdf&quot; rel=&quot;nofollow&quot;&gt;Armendariz&lt;/a&gt; can be reasonably read to prohibit mandatory arbitration agreement generally.  Quite the contrary, it gives a pretty clear blessing to any mandatory arbitration agreement that (1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award sufficient to ensure that the arbitrators complied with the law, (4) provides for all relief that would otherwise be available in court, (5) does not require employees to pay unreasonable costs or fees peculiar to arbitration and (6) is not otherwise unconscionable (&lt;i&gt;e.g.,&lt;/i&gt; doesn&#039;t require one party to arbitrate while leaving the other free to litigate).  I&#039;d be very surprised if Paul, Hastings has a mandatory arbitration clause for its California employees that does not comply with &lt;i&gt;Armendariz.&lt;/i&gt;</description>
		<content:encoded><![CDATA[<p>DB, I&#8217;m not sure where you get your information from but California does indeed forbid non-competes.  <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&#038;group=16001-17000&#038;file=16600-16607" rel="nofollow">Section 16600 of the Business and Professions Code</a> provides that:</p>
<blockquote><p>Except as provided in this chapter, every contract by which<br />
anyone is restrained from engaging in a lawful profession, trade, or<br />
business of any kind is to that extent void.</p></blockquote>
<p>The chapter goes on to provide a few discrete exceptions for sale of a business (B&#038;P Sec. 16601), withdrawal or dissolution of a partnership or LLC (B&#038;P Secs. 16602, 16602.5) and customer lists of answering services and employment agencies (B&#038;P Secs. 16606, 16607), but nothing remotely analogous to an associate&#8217;s position at a law firm.  Independent consideration is irrelevant.  [Whether the provision in question <i>should</i> be considered a non-compete is, of course, a wholly separate issue.  To the extent it only prohibits her from seeking employment from PH itself, and not from any "Released Parties" who may leave and start firms of their own, it's probably not.]</p>
<p>As to mandatory arbitration clauses, I don&#8217;t think <a href="http://caselaw.lp.findlaw.com/data2/californiastatecases/s075942.pdf" rel="nofollow">Armendariz</a> can be reasonably read to prohibit mandatory arbitration agreement generally.  Quite the contrary, it gives a pretty clear blessing to any mandatory arbitration agreement that (1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award sufficient to ensure that the arbitrators complied with the law, (4) provides for all relief that would otherwise be available in court, (5) does not require employees to pay unreasonable costs or fees peculiar to arbitration and (6) is not otherwise unconscionable (<i>e.g.,</i> doesn&#8217;t require one party to arbitrate while leaving the other free to litigate).  I&#8217;d be very surprised if Paul, Hastings has a mandatory arbitration clause for its California employees that does not comply with <i>Armendariz.</i></p>
]]></content:encoded>
	</item>
	<item>
		<title>By: DB</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-404990</link>
		<dc:creator>DB</dc:creator>
		<pubDate>Wed, 07 May 2008 13:26:53 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-404990</guid>
		<description>Actually, California law doesn&#039;t forbid non-competes, it just views them very strictly.  Like a number of other states, there must be independent consideration for the non-compete (it can&#039;t just be tacked on as a condition of employment)

In this case, PH is providing independent consideration.  Stilll, the California courts are remarkably hostile to these agreements for employees, and would tend to construe it against PH at every opportunity.  (Surprisingly sensibly, these types of agreements are consistently upheld in sales of businesses, professional practices, etc. as not doing so would impair the market.)

The more important element here for PH is the release of claims, rather than the non-compete.  Clearly this woman is primed to sue.  Another quirk of California law is that binding arbitration clauses in employment agreements are extremely disfavored and are frequently found to be unconscionable.

Elsewhere people have suggested that the reason for forbidding applying for work is to remove any doubt that there was a promise of re-employment, and to avoid future employment actions based on the status of the person as a protected class with respect to employment discrimination.  That is, even though pre-existing claims were waived, the person could theoretically generate a new claim by re-applying and being turned down.</description>
		<content:encoded><![CDATA[<p>Actually, California law doesn&#8217;t forbid non-competes, it just views them very strictly.  Like a number of other states, there must be independent consideration for the non-compete (it can&#8217;t just be tacked on as a condition of employment)</p>
<p>In this case, PH is providing independent consideration.  Stilll, the California courts are remarkably hostile to these agreements for employees, and would tend to construe it against PH at every opportunity.  (Surprisingly sensibly, these types of agreements are consistently upheld in sales of businesses, professional practices, etc. as not doing so would impair the market.)</p>
<p>The more important element here for PH is the release of claims, rather than the non-compete.  Clearly this woman is primed to sue.  Another quirk of California law is that binding arbitration clauses in employment agreements are extremely disfavored and are frequently found to be unconscionable.</p>
<p>Elsewhere people have suggested that the reason for forbidding applying for work is to remove any doubt that there was a promise of re-employment, and to avoid future employment actions based on the status of the person as a protected class with respect to employment discrimination.  That is, even though pre-existing claims were waived, the person could theoretically generate a new claim by re-applying and being turned down.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Xrlq</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-404970</link>
		<dc:creator>Xrlq</dc:creator>
		<pubDate>Wed, 07 May 2008 10:31:09 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-404970</guid>
		<description>Non-competes are generally unenforceable.  However, strongarming someone into signing an agreement you &lt;i&gt;know&lt;/i&gt; to be unenforceable can be actionable in other ways.</description>
		<content:encoded><![CDATA[<p>Non-competes are generally unenforceable.  However, strongarming someone into signing an agreement you <i>know</i> to be unenforceable can be actionable in other ways.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Doc Rampage</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-404951</link>
		<dc:creator>Doc Rampage</dc:creator>
		<pubDate>Wed, 07 May 2008 08:43:04 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-404951</guid>
		<description>Er. Sorry, really should double check accuracy when using quotation marks: Do contracts like that actually &quot;violate the law&quot;?</description>
		<content:encoded><![CDATA[<p>Er. Sorry, really should double check accuracy when using quotation marks: Do contracts like that actually &#8220;violate the law&#8221;?</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Doc Rampage</title>
		<link>http://xrlq.com/2008/05/06/how-not-to-do-layoffs/comment-page-1/#comment-404949</link>
		<dc:creator>Doc Rampage</dc:creator>
		<pubDate>Wed, 07 May 2008 08:41:00 +0000</pubDate>
		<guid isPermaLink="false">http://xrlq.com/?p=3395#comment-404949</guid>
		<description>Out of curiosity, are contracts like that really &quot;against the law&quot; or just not enforceable by the law?</description>
		<content:encoded><![CDATA[<p>Out of curiosity, are contracts like that really &#8220;against the law&#8221; or just not enforceable by the law?</p>
]]></content:encoded>
	</item>
</channel>
</rss>
