"Changing Currents in Employment Law" is the D.C. Bar's annual three-hour event featuring legal updates and practice tips from the area's top employment attorneys — all for CLE credit. TELG's Scott Oswald serves as faculty director and will moderate the event on October 29, 2019. Here he previews the panel on anti-SLAPP laws in the workplace with panelist James J. Murphy of Ogletree, Deakins, Nash, Smoak & Stewart P.C.
This video interview by
TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on September 2, 2019.
Changing Currents 2019: Panel Preview – Anti-SLAPP Laws in the Workplace
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Welcome, everyone, to our preview of our panels for this year’s “Changing Currents in Employment Law” on October 29 of this fall from 6:00pm to 9:15pm.
For this edition we are joined by Jim Murphy. Jim is a partner at Ogletree Deakins in the District.
[Turning to interviewee] Jim, welcome.
James J. Murphy: Thanks Scott.
Oswald: So tell us a little bit about your background because you, in addition to being in private practice now, you had a stint in-house at General Dynamics. Give me a sense of the perspective that brings — and [how it] helps you now to best represent your clients.
Murphy: I think it probably helps particularly when, as an outside lawyer dealing with litigation and employment counseling, you need to put things in perspective — you understand what is more critical [and] what is not as critical for the client; the areas where they might be uniquely sensitive; and the internal politics and challenges that your clients have when you’re looking for that perfect theory in a case. [Because] maybe that’s not always the thing that they need. Those sort of intangible things, I think you pick up on.
Oswald: You can tell your client, “Hey listen, I’ve been there” — right?
Murphy: There you go. There you go. Right.
Oswald: So let’s talk a little bit about your panel. Your panel is on anti-SLAPP suits and we’ve seen a number of states pass these statutes. Tell us a little bit about what they’re designed to do, why legislatures passed these, and a little bit of how they’re used.
Murphy: I mean, it is a bit of an esoteric topic, isn’t it? But actually, when you dig into it, I think those who attend the session will find it a creative [way of] thinking through some of these strategies.
But anyway, in anti-SLAPP law you’ve got to know what a SLAPP is first. So a SLAPP is a “strategic lawsuit against public participation.” And these statutes were created — right now I think there are about 30 states that have them, including the District — in order to prevent litigation and the burdens of the discovery process from being used to chill, basically, First Amendment-protected activity.
So these laws provide these protections for a defendant [in a SLAPP], but the defendant could be the individual. So it’s important, I think, to plaintiffs’ lawyers and lawyers representing individual parties, as well as the corporate employer community, when their clients are the defendant in the case.
And, in a nutshell, the District, Maryland and Virginia each have an anti-SLAPP law. They are amazingly different. At one end of the spectrum is a very vanilla statute in Virginia and then at the other end is a pretty rigorous one in the District. And Maryland’s probably in between.
So there’s a great variety between these statutes. Typically the main thrust of them is that they provide a defendant with an earlier opportunity to have [a SLAPP] dismissed early on in the case, before discovery, where the claims at issue implicate the defendant’s First Amendment activity or expressive activity. And the First Amendment really is baked into some of these things.
The interesting thing is, you wouldn’t think that these statutes really have a lot to do with day-to-day, garden-variety employment litigation — and that’s what I thought for some time, until I got a little more educated about it.
These statutes are now implicated in a lot of non-compete, restrictive covenant litigation. We’ve had some new developments, new legislation in Texas to deal with that sort of issue. Also, in California there was a case involving a major media company that terminated one of its writers for plagiarism. They were sued for discrimination, retaliation, etc., and ultimately the California Supreme Court ruled that the [state’s] anti-SLAPP law actually was available to the defendant media company in that case on the termination claim.
And you [might] think: Well, what in the world does that have to do with First Amendment activity, expressive activity? Well, the theory was that the defendant’s decision to terminate that employee for plagiarism actually was an exercise of [the company’s] First Amendment rights in that — well, it was in furtherance, let’s say, of their First Amendment rights.
Oswald: The termination decision itself?
Murphy: Right, right. Because the selection of who is going to be handling that work — writing the content and being a representative of the defendant — reflected their choice around who was going to communicate on their behalf to the public. And so there was that nexus there. It’s an interesting decision. I recommend it. The plaintiff is Wilson, I forget the first name. But it’s a good case — and a timely one.
Oswald: So let’s talk about individuals, because we know that there’s a lot of litigation surrounding employees who leave — they leave with a customer list, maybe; or they leave and they solicit business; or maybe they compete, etc.
And sometimes companies will sue them under those circumstances.
[Now] we’re seeing some litigation where [employees who have been sued] are bringing anti-SLAPP suits in response. What kind of advice do you give employers about the ironclad nature of their post-employment restrictive covenants — [especially] at the time when they’re thinking about bringing a suit against [an employee]?
Murphy: Oftentimes there are two critical points for the employer, right?
There’s the point at which somebody is drafting this ironclad agreement upfront, and it’s designed to not allow anything to slip through the cracks — so they typically have very broad, lengthy definitions, etc.
And then you’ve got the point at which somebody actually maybe is in violation of [the agreement].
One of the critical considerations there is: Just what is the employer’s legitimate interest that’s being implicated by [the employee’s] departure — and is there not only a technical violation of the language, but is the person’s departure to join this new employer really something that’s going to implicate the employer’s general business interests?
[Because] you know, to think that an employer is going to use the restrictive covenant to keep somebody on the bench, [just] because they might be in their industry and they might be competing against them, you know —
Oswald: That’s a harder sell for a court.
Murphy: Yeah, it’s a harder sell for a court. Right. So part of the challenge, I think, for employer’s counsel is to adjust client expectations sometimes in those clauses.
Oswald: So especially in non-compete litigation, unless that employer has an ironclad agreement and it’s really narrowly tailored, potentially they could be opening themselves up to [an anti-SLAPP] countersuit?
Murphy: Yeah. The interesting thing — and this has come up in some of the Texas cases in particular, that are now being addressed with legislative amendments — is that, well, where is the First Amendment activity in that? In joining another employer? Well, freedom of association, right? That’s the theory in those cases.
And the Texas legislature’s trying to dial it back — trying to narrow their anti-SLAPP statute, saying that was never the intention of the legislature when they initially enacted it. But that’s the way it’s written. And that’s the way it’s been playing out in some cases.
Oswald: Jim, thank you. We look forward to the panel on the 29th.
[Turning to camera] And we look forward to seeing each of you at “Changing Currents in Employment Law” on October 29, 2019, at 6:00pm at the D.C. Bar.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C. James J. Murphy is a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
