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Severance agreements just became more favorable to workers. Here’s what that means for employers

Severance agreements are suddenly a hot topic as employers lay off workers. Now a new decision from Washington significantly changes the rules of what a severance agreement can and can’t say. On the metaphorical gauge of employee vs. employer power, “the needle just shifted,” says Nicholas Woodfield, principal and general counsel of the Employment Law Group, and “it’s likely going to favor the employees over the employers.” Players on both sides should know the new rules.

Severance agreements exist largely because most employers aren’t required to offer severance payments. When they choose to do so, they want something from employees in return. The agreements frequently prohibit laid-off employees from disclosing contract terms and disparaging the company. Those two standard provisions — a confidentiality clause and a non-disparagement clause — are the focus of a new decision by the National Labor Relations Board. In a case involving 11 employees dismissed by McLaren Macomb Hospital in Mount Clemens, Mich., the board ruled that the hospital wrote the two clauses in its severance agreement so broadly that employees would essentially waive their rights under the National Labor Relations Act if they signed it. As a result, the board declared the entire agreement unlawful.

That outcome sends shivers through employers because the most valuable part of a severance agreement is generally not those two clauses but rather the “release,” in which employees release the employer from legal claims arising from their employment or termination. Losing the release because of overly broad confidentiality and non-disparagement clauses is a bad trade, and corporate lawyers are now advising companies to ensure their severance agreements will pass muster with the NLRB — even if revising them may give employees more leverage in some ways.

McLean Contractor Agrees To Pay $742K To Settle Whistleblower Lawsuit

MCLEAN, VA — Advanced Systems Technology & Management, Inc., a McLean-based contractor specializing in science and technology-based engineering and consulting, and its CEO Bing Ran, also from McLean, agreed to pay $742,500 Thursday to settle allegations that they had used an alter ego to obtain contracts for which the company was ineligible, according to a release.

A former AdSTM employee filed a lawsuit under the whistleblower provision of the False Claims Act. The lawsuit alleged that AdSTM and Ran had conspired to convince federal agencies to fraudulently award multiple “set-aside” contracts to Qi Tech and Foredata, two companies controlled by AdSTM.

Government contractors who participate in the Small Business Administration’s 8(a) Program can obtain “set-aside” contracts meant to help smaller contractors. To be eligible for set-asides, a company must be a small business, at least 51 percent owned by U.S. citizens who are disadvantaged, either economically or socially; and controlled by one or more people who are economically or socially disadvantaged.

AdSTM was not eligible to receive the set-aside contracts, and since it controlled Qi Tech and Foredata, they were also ineligible, according to court documents.

» View full story on Patch

 

[OFFICIAL ANNOUNCEMENT]

Government Contractor Pays $742,500 to Settle False Claims Act Allegations in Obtaining Contracts Reserved for Eligible Small Businesses

From the U.S. Department of Justice (Mar. 23, 2023)

ALEXANDRIA, Va. — Advanced Systems Technology & Management, Inc. (AdSTM), a government contractor specializing in science and technology-based engineering and consulting located in McLean, and AdSTM’s former CEO, Bing Ran, also of McLean, agreed to pay $742,500 to settle allegations that AdSTM used alter ego companies to allow AdSTM to obtain contracts “set aside” for contractors participating in the Small Business Administration’s (SBA’s) 8(a) Program, after AdSTM was no longer eligible under the 8(a) Program.

“It is vital to the purpose of the SBA’s programs that government contracts set aside for disadvantaged small businesses are issued only to those companies that are eligible. EDVA encourages anyone to come forward with information about instances where the small business set aside program has been victimized,” said Jessica D. Aber, U.S. Attorney for the Eastern District of Virginia.

» View press release on Justice.gov

———-

Case Information
United States ex rel. Guan v. Advanced Systems Technology and Management, Inc.
No. 1:18-cv-00795
U.S. District Court for the Eastern District of Virginia
Original complaint filed on June 27, 2018
First amended complaint filed on September 22, 2020 (available here)

Takeaways from the Supreme Court’s Big Overtime Case

By Nicholas Woodfield

Writing on Wednesday for a 6-3 U.S. Supreme Court majority in Helix Energy Solutions Group Inc. v. Hewitt, Justice Elena Kagan refused to treat an oil rig worker’s high daily wage as the legal equivalent of a salary for the simple reason that a salary under the Fair Labor Standards Act of 1938 is described as a “predetermined” weekly (or less frequent) amount that’s paid “without regard to the number of days or hours worked.”

At first blush, the Helix decision seems remarkable for its determination that an oil rig worker who makes $200,000 a year can still be entitled to overtime. Court watchers and FLSA practitioners will note, however, that the decision also offers two more important takeaways.

First, textualism is a double-edged sword: Here a liberal justice wielded it to usher three conservatives to an employee-friendly outcome, leaving Justice Brett Kavanaugh to complain in dissent that the text of the U.S. Department of Labor’s FLSA regulations may simply be wrong, inviting future litigants to challenge the regulation itself “as inconsistent with the Act.”

And second, the Supreme Court wants federal courts to apply the FLSA’s provisions broadly to all workers, regardless of pay level, even where the outcome might seem out of step with a New Deal statute that’s best known for creating a minimum wage to protect the lowest-paid.

Here Helix, the employer, paid Michael Hewitt based purely on the number of days he worked during a period, so it didn’t pay him “on a salary basis,” according to Justice Kagan. Meanwhile, even Helix conceded that it didn’t meet an alternative FLSA standard that allows employers to guarantee its wage workers a minimum weekly payment that approximates a salary.

The employer’s main backup argument was policy-based: requiring overtime for high earners would hurt business.

Justice Kagan wrote in rebuff: “As this Court has explained, ‘even the most formidable policy arguments cannot overcome a clear’ textual directive.” And in any case, she said, depriving Mr. Hewitt of overtime in this case could threaten lower-paid workers, too:

Some nurses working on a per-day or per-shift ba­sis are likely to meet [the standard urged by Helix for losing overtime]; and their employers would assure them [a token weekly payment] in a heartbeat if doing so eliminated the need to pay overtime. And nurses … are not alone: They “are just one of the many examples” of workers paid less than $100,000 a year who would, if Helix prevailed, lose their entitlement to overtime compensation.

Thus the court’s unambiguous instruction to the federal bench: Don’t second-guess the plain meaning of permissive FLSA regulations. As long as employees aren’t deemed as salaried and don’t fall under any other FLSA exemption, their pay rate is irrelevant and they’re entitled to be paid for the overtime they work.

What ‘Salary’ Means Under the FLSA

The FLSA’s overtime provisions serve multiple purposes: to discourage excessive workloads generally; to incentivize employers to hire multiple people rather than pushing individuals too hard; and to compensate workers fairly for unusual burdens.

The statute applies to all employees unless they’re specifically exempted — and the most common exemption is for workers in “bona fide executive, administrative, or professional” positions. The FLSA leaves it to the Labor Department to define those terms via regulations.

As relevant to the Helix case, the regulations say that employees are exempt from overtime requirements if they meet three criteria:

  • They are paid on a salary basis;
  • The salary exceeds a certain amount, which at the relevant time was about $24,000 a year; and
  • They perform certain duties.

The qualifying duties vary between lower- and higher-paid employees, but in this case everyone agreed that Mr. Hewitt, who worked as a so-called tool pusher in two-week stints on an offshore rig, was paid far above the threshold amount and also that he performed the requisite duties.

They clashed, however, on whether his daily rate of $963 to $1,341 counted as a salary, as required. Two regulations, 29 C.F.R. §§ 541.602(a) and 604(b), might have applied.

Under 602(a), employees are salaried if they “receive each pay period on a weekly or less frequent basis, a predetermined amount [that] is not subject to reduction because of variations in the quality or quantity of work performed.”

Under 604(b), meanwhile, employees are deemed to pass the “salary basis” test even if they’re paid by the hour, shift, or day, as long as they’re paid a weekly guarantee that’s over a threshold and bears a “reasonable relationship” to their earnings for a “normal scheduled workweek,” which the Labor Department has interpreted as requiring at least two-thirds of a typical paycheck.

Justice Kagan didn’t delve deeply into 604(b), as Helix agreed that it didn’t provide Mr. Hewitt with such a guarantee in any case — though she established that 604(b) could, in theory, allow a high-earning daily worker to be deemed as salaried.

Instead, she focused on 602(a), the operative regulation.

It’s Not About the Amount

In Christopher v. SmithKline Beecham Corp., which was decided by the Supreme Court in 2012 and concerned a different FLSA exemption, Justice Samuel Alito’s then-majority opinion described salespeople who earned “well above the minimum wage” as “hardly the kind of employees that the FLSA was intended to protect.”[1]

Justice Kagan was a dissenter then, and more than a decade later she mustered a majority for the proposition that the FLSA’s overtime rule isn’t triggered by raw paycheck amounts, nor does it rely on an Ivy Leaguer’s intuition about who counts as working class. Rather, 602(a) offers an exemption only to salaried employees — and even a sky-high wage isn’t the same as a salary.

In this regard the FLSA and its implementing regulations reflect “the statutory choice not to set a simple income level as the test for exemption,” she wrote. “Some might have made a different choice, but that cannot affect what this Court decides.”

Via dictionary citations and other textual tools, Justice Kagan concluded that 602(a)’s salary requirement “just reflects what people ordinarily think being ‘salaried’ means” — that is, being paid in units of a week or more. It is the “very opposite” of being paid a day rate, as Mr. Hewitt was, she said, citing approvingly to and affirming the decision of the U.S. Court of Appeals for the Fifth Circuit.

Writing for a six-justice majority that included originalist and textualist Justice Clarence Thomas, the majority denied the putative logic of Justice Kavanaugh’s dissent, joined by Justice Alito, which opened by highlighting Mr. Hewitt’s generous pay rate and then, according to the majority, “trie[d] just to power past the regulatory text” and its all-important definition of “salary.”

Justice Neil Gorsuch, meanwhile, wrote a brief separate dissent that opined that the justices should have dismissed the Helix case as improvidently granted because it “does not tee up [the] issue in the way we hoped.”

Although it wasn’t intended for this purpose, Justice Kavanaugh’s dissent will garner fans among employee-side advocates: They can now point to its argument — one that’s frequently deployed by defendants in lower courts — as having been found inconsistent with the unambiguous text of the regulations.

———-

Nicholas Woodfield is principal and general counsel of The Employment Law Group, P.C.

[1] Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 166 (2012).

(Note: This article has been edited slightly from the version published by Law360, and carries a different headline.)

Five Steps to Fight a Non-Compete Agreement (While the FTC Tries to Make Them Illegal)

By R. Scott Oswald

IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of January 2023.

It’s the last thing you need as you contemplate a new job: An official-sounding letter from your old employer, threatening to enforce a non-compete agreement from years ago.

Are they serious? OK, so you signed some long-forgotten boilerplate document when you started that old job — but could it really endanger the shiny new position that you’ve just been offered, or even started already?

The short answer: Maybe so. And you’re not alone.

About 30 million people in the United States are subject to a non-compete agreement that purports to restrict the work they can do after leaving a job, often by forbidding their employment by rival companies or even in a whole industry. Such contracts may depress workers’ earnings by almost $300 billion a year, according to the U.S. government — even if, as is often true, the restrictions wouldn’t stand up in court.

Non-compete provisions may soon be outlawed entirely: The Federal Trade Commission recently proposed a nationwide ban after officially finding that non-compete clauses are — surprise, surprise — anti-competitive and thus harmful to the U.S. economy. If finalized in its current form, and if it survives court challenges, the FTC rule would require employers to rescind all existing non-competes.

Local governments have been acting, too: The District of Columbia, for one, recently outlawed most non-compete provisions signed after October 1, 2022, with some carve-outs. California also forbids such agreements with only a few exceptions, as do North Dakota and Oklahoma. Maryland and Virginia both recently banned non-competes for “low-wage” workers, a term that’s defined differently in each state. And even where some non-competes are legal, courts have strict standards for enforcing these “restrictive covenants” in employment.

Nonetheless, as we wait for the FTC’s nationwide rule-making process to play out, many employers continue to threaten their former workers with the enforcement of a non-compete — often at a time when those employees are vulnerable and conflict-averse, as they’re starting (or negotiating for) a new job.

It’s intimidating, but a smart response is possible. Here’s a five-step guide to handling to a non-compete inquiry from your old employer, in ascending order of escalation. Depending on the situation and your comfort level, you may even be able to hit back with legal claims against your former company.

Hopefully the FTC’s new rule will make this entire discussion obsolete — but for now, at least, non-compete disputes remain tricky to navigate.

Step One: Understand the Legal Situation

Before you’re trapped between two employers, neither of which truly cares about you, you’ll need some independent advice.

The law of non-competes is complicated and varies significantly from state to state. A good employment lawyer can help you to understand:

  • Whether your non-compete agreement is likely to be enforceable;
  • Whether it’s likely to apply to your specific situation;
  • Some solutions that your old employer might settle for; and
  • Some possible next steps.

Expect a lawyer to tell you the strengths and weaknesses of your situation, and to recommend a path forward. In California, it could be as simple as sending a reply to your old employer noting that it can’t enforce a non-competition agreement. In other states it may be a lot harder.

Step Two: Loop In Your New Employer

If your previous employer is aggressive, or just boneheaded, it may approach your new company and claim that your employment there is illegal. It could even demand that you be fired — or that you not be hired, if you’re still negotiating.

Such a demand can be illegal, as we’ll discuss below. Regardless, you don’t want it to come as a surprise to your new boss. With a lawyer’s advice, therefore, you should consider making a preemptive disclosure that’ll serve as damage control.

Among the things you might decide to tell a new or prospective employer:

  • That you previously signed a non-compete — plus the reasons you didn’t mention it before, if appropriate;
  • That you’ve heard from your old employer, if that’s the case;
  • The specific behavior that’s supposedly forbidden by the non-compete (and maybe the text of the agreement itself);
  • Your attorney’s opinion on the applicability and enforceability of the agreement;
  • The provisions of any other agreements that are relevant, such as confidentiality and non-solicitation pacts;
  • Any trade secrets from your old employer that you won’t be allowed to use in your new job, or any clients you can’t contact; and
  • Your plan for moving forward.

If you haven’t yet been hired and your skills are very valuable, your new company might offer to indemnify you — that is, to cover any money that your old employer might (but probably won’t) win in court. It might even agree to litigate any dispute for you, though you’d need to discuss that option with your lawyer.

A more common outcome, we’ve found, is that your new employer will acknowledge the heads-up and stand aside while you handle the matter.

NOTE: There’s a non-zero chance that your new company will overreact and terminate your employment, particularly if your new job has a probation period. Similarly, a job offer might be retracted or delayed when you disclose a non-compete. This is why you should act only after getting a lawyer’s individualized advice: You may want to postpone your disclosure. Your new employer might think that you’ve concealed the dispute, however, which could be even worse.

Step Three: Negotiate with Your Old Employer

Often an old employer isn’t really trying to prevent you from working at your new job. Instead, it might be satisfied with some common-sense assurances about what you will (and won’t) do at the new workplace — a watered-down version of the non-compete that both parties can live with.

In such cases, the threatening letter you received is just an invitation to negotiate a new deal.

Truth is, most companies won’t risk a full-on legal fight over a non-compete. Why? Like the rest of society, many courts disfavor these so-called “agreements,” which are often one-sided, formed under duress, and bad for society. Suppose a judge were to find that your specific non-compete is unenforceable: That’d set a precedent that could torpedo similar agreements between your old employer and all the other employees it’d like to keep intimidating.

You’re not the only party with something to lose here, in other words.

What assurances can you offer an old employer? You should consult with your lawyer, and maybe also with your new employer, but your options might include an agreement not to work directly with a very limited list of top clients, or on a very specific type of project, or in a very specific geographical area. You also could offer to add new restrictions — an agreement not to recruit a few named stars at your old company, for instance, if you didn’t already sign such a document.

If you can stomach such measures, you also might offer to make a longer commitment than the duration of your previous, possibly non-enforceable agreement: Three years instead of one year, for example.

In our firm’s experience, many employers will welcome a deal like this. With a lawyer’s help, the dispute can end with an agreement that allows you to move forward in your new job.

Step Four: Strike the First Legal Blow

Sometimes your old employer won’t even come to the negotiating table, or it’ll bargain but then refuse to make a deal. This might happen if you left the company on bad terms, for instance, or if your former company is getting bad legal advice. Once a fight becomes inevitable, you can ask your attorney to strike first.

Going to court is a serious matter, and it can be expensive and risky. On the other hand, your only alternative may be to abandon your new job — and maybe to put your entire career on hold. A lawyer can help you weigh the options, but litigation may be the best path. And if it is, you’ll want to control the narrative yourself.

There are two main scenarios here.

SCENARIO A: Your old company has never contacted your new employer

In this situation, you can file a motion for declaratory judgment. In essence, you’ll ask a court to tell your old employer that its non-compete agreement is invalid and can’t be enforced. In general, the burden will fall on your old employer to prove that the provision is valid.

Laws vary from state to state — with some outlier states banning non-competes very broadly — but judges generally will weigh the scope of a non-compete to see whether it’s too harsh or otherwise harms the public’s strong interest in protecting free competition. The more employment opportunities that an agreement shuts down for a former employee, the less likely a judge will allow its enforcement.

Scope can refer to a few things, including:

  • DURATION. In general, the longer a period for which a former employee is supposedly restricted by a non-compete, the less likely a court will find the agreement to be enforceable.
  • GEOGRAPHY. In general, the wider an area in which a former employee supposedly can’t seek work, the less likely a court will find the agreement to be enforceable.
  • JOB ROLES. In general, the more types of employment that are supposedly forbidden to a former employee, the less likely a court will find the agreement to be enforceable — especially if the employee is trained only for those types of work.
  • COMPETITORS. In general, the more specific companies that are supposedly off-limits to a former employee, the less likely a court will find the agreement to be enforceable.

Judges also look at the clarity of an agreement: If it’s ambiguous in its terms, it may be found to be invalid. Other factors may include whether the agreement serves any legitimate business purpose — non-competes for highly skilled or heavily trained employees could make sense, for example, while restrictions on entry-level workers usually don’t — and whether your old employer usually enforces its non-competes, or is just picking on you.

When it comes to non-competes, enforceability can be all-or-nothing affair. Depending on the state, judges may not be free to “blue pencil” the agreement by modifying or deleting unfair terms; instead, a single bad provision may kill the whole non-compete.

By striking first legally, you’ll put your old employer on the defensive and hopefully bring it to the bargaining table. The fight also could escalate, however. Your old company may file counterclaims against you, for example, and broaden the legal battleground. Plus your new employer will likely learn about the dispute, and may get dragged into it — so you should inform them now, if you haven’t already.

In short, consider all the possible outcomes and act with your eyes open. But remember: You may end up in court even if you don’t act first.

SCENARIO B: Your old company HAS contacted your new employer

In this situation you probably should still file a motion for declaratory judgment, as above, but you also can consider filing a claim of “tortious interference” — especially if your old employer has sent a demand letter to your new company asserting that you can’t legally work there. (Doubly so if its action caused your firing or some other harm.)

Tortious interference happens when a third party, here your old employer, intentionally damages a valid business relationship between two parties, here you and your new company. The details and terminology of the claim vary by state, but it’s available nationwide in some form, including in D.C., Maryland, and Virginia.

In very broad strokes, and depending on the jurisdiction, you must meet these conditions to prevail:

  1. You must have a valid contractual relationship or business expectancy with your new employer. This likely depends on your noncompete being found unenforceable.
  2. Your old employer must know of the valid relationship or expectancy. This likely means that your old employer knew (or, more likely, should have known) that its non-compete was unenforceable.
  3. Your old employer must actually and intentionally disrupt the relationship.
  4. You, as the plaintiff, must have suffered some damage as a result.

In Virginia you’ll need to prove that disruption was your old employer’s primary goal — and other states may add other wrinkles.

Adding a claim of tortious interference raises the stakes for your opponent and gives you a path to monetary damages. Like any legal maneuver, it could cause your former employer to look for a quick and easy solution, like a settlement.

However, your old company might also dig in its heels. And your new employer will likely get dragged in, too, affecting your work situation. Again, discuss the risks and rewards with your lawyer.

Step Five: Defend Yourself Vigorously

Regardless of whether you strike the first blow, any court battle will likely include a claim by your old company that you shouldn’t be allowed to violate your non-compete agreement. Besides saying that the agreement was never valid, which you certainly should do, how else can you defend yourself?

Because your old employer is likely seeking an “equitable” remedy — it wants a judge to order you to act a certain way — legal doctrine requires it to make the request with “clean hands.” In other words, it can’t have acted wrongfully itself in relation to the matter being litigated.

Has your old employer previously wronged you in any way? For instance, did it fail to pay you some money it owed you; or allow you to endure workplace harassment or discrimination; or penalize you unfairly for raising concerns about lawbreaking; or unilaterally change your terms of employment? If so, your attorney can help you to assert an “unclean hands” defense that could cancel even an otherwise valid non-compete agreement.

FREQUENTLY ASKED QUESTIONS

Q: Does the recent action by the FTC mean that all non-compete agreements will soon become invalid forever?

No. As of January 2023, it’s just a proposed rule from the FTC — the final rule could be different. Lots of employers and trade groups are lobbying for changes or even a total withdrawal. Also, there are some exceptions to the proposed rule, although they’re narrow right now. And even assuming the rule becomes final in its current form, it’ll likely be challenged in court. An injunction could delay its implementation for an indefinite period.

What’s more, any finalized rule will never be the same as a law: It’ll be a product of the Biden-era FTC and could be changed or reversed by a future commission via the same rule-making process. Plus the rule could be overridden by a statute that’s passed by the U.S. Congress and becomes law.

In short, this proposed FTC rule is very promising for employees who want more freedom — but things still could go backwards, even after the rule is finalized.

Q: Does the FTC’s proposed rule invalidate non-competes that were already signed?

In the form it was proposed, yes. But again, there are some narrow exceptions to its coverage.

Q: How about the new D.C. non-compete law — is that one retroactive?

No, it applies only to non-compete agreements that are signed from October 2022 onward. The D.C. law still allows non-competes for certain types of employee, including medical specialists. Previous agreements aren’t affected but can still be challenged in court.

Q: My non-compete provision — or the larger agreement that governs it — says it’s made under Maryland law (or Virginia law, or D.C. law). Does the state law make much difference, in practice?

Every state has a different body of law on the enforceability of non-competes, both via its statutes and via the rulings of its courts. For states where non-competes aren’t broadly banned, the general considerations are outlined in Step Four, above. Still, they may be phrased differently and balanced differently from state to state. Below are quick thumbnails of non-competition law in Maryland, Virginia, and D.C. Other states have a similar range of variations.

Non-Compete Law in Maryland

Non-competes can’t be enforced against low-wage workers, who are defined as people earning $15 per hour or less. Otherwise, courts generally limit enforcement of non-competes to employees who provide unique services. An agreement’s provisions must be narrow in scope, must legitimately protect the business of the old employer, and can’t impose undue hardship on the employee or harm the public interest.

Non-Compete Law Virginia

Non-competes can’t be enforced against low-wage workers, who are defined as people earning less than the state’s average weekly wage or, for independent contractors, less than the state’s median hourly wage. Otherwise, non-competes are disfavored and can’t be enforced unless they are “reasonable”: No more restrictive than needed to protect the old employer’s legitimate business interest, not unduly burdensome on the employee’s ability to earn a living, and consistent with sound public policy.

Non-Compete Law in D.C.

Non-competes are enforceable only if they’re not “unreasonably” in restraint of trade. The analysis is generally similar to Maryland and Virginia, looking first at whether your old employer has a legitimate interest in restraining your options — and second at whether your resulting hardship outweighs that interest. As always, the scope of the non-compete provision is crucial.

Q: Can a lawyer tell me immediately whether my non-compete is legally enforceable?

Sometimes. If it falls under a category that is prohibited by statute — signed after October 2022 in D.C., for example, or covering a low-age worker in Maryland, or covering virtually anyone in California — then the answer may be pretty clear.

Otherwise, it’ll probably take some research to form an opinion. Courts decide enforceability case-by-case, and your lawyer will likely be looking for examples of agreements that are similar to yours and were found to be invalid. If there are some strong examples, especially in your jurisdiction, you’ll stand a good chance of success.

Your old company’s lawyers will do the same research, however, and they might reach an opposite conclusion. If you can’t resolve the dispute, a judge may need to decide. A court’s opinion usually marks the end of the debate, although appeals are possible.

Q: My non-compete agreement says I must settle any dispute via individual arbitration rather than in court. Does that change things?

It depends. Some forced arbitration clauses are themselves illegal. And if your non-compete is clearly unenforceable, it probably doesn’t matter much either way. Otherwise, an arbitration provision may give your old employer an incremental edge: Because arbitration is usually secret and doesn’t set a legal precedent, the company will be less scared of a fight.

What’s more, arbitration results can’t be appealed and may tilt unfairly toward employers — something that shouldn’t be true, since the same law applies. According to a recent study, however, employees win only two percent of employment-related arbitrations.

This doesn’t mean you need to buckle under, however. Talk with your lawyer about your individual situation. After all, your livelihood may be at stake.

Also, the FTC may be riding to your rescue — eventually.

—–

R. Scott Oswald is managing principal of The Employment Law Group, P.C., a law firm that represents employees in disputes with their employers.

Ben Considine

Ben Considine is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, Mr. Considine worked as a law clerk for the District of Columbia’s Department of Consumer and Regulatory Affairs and as a legal fellow at the COVID-19 Rapid Response Systems Summer Institute.

Mr. Considine obtained his J.D. from The George Washington University Law School in May 2022 with a concentration in business and finance law. He graduated from Virginia Tech, where he earned a Bachelor of Arts in Economics.

Gia Behnamian

Gia Behnamian is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, she helped litigate employment cases as an intern at the Transportation Security Administration’s Office of Chief Counsel and interned as a summer law clerk for Hawaii State Supreme Court Justice Sabrina S. McKenna.

Ms. Behnamian graduated from the George Washington University Law School in May 2022. At GW Law, she spent an academic year as a student-attorney for the GW Jacob Burns Community Legal Clinics, representing clients in front of the U.S. Court of Federal Claims, Office of Special Masters. At GW Law, she also served as a staff member for the Federal Circuit Bar Journal.

Ms. Behnamian holds a master’s degree in international relations from Johns Hopkins University’s School of Advanced International Studies and a bachelor’s degree in international affairs from the George Washington University.

Kirsten Fetrow

Kirsten Fetrow is a part-time law student at the University of Denver and expects to graduate in May 2025. Before joining The Employment Law Group® law firm, she coordinated research trials in children and adults with neurological conditions such as epilepsy, strokes, and headaches.

Ms. Fetrow graduated from the University of Denver with a bachelor’s in psychology and minors in biology and cultural studies.

Tae Hoon Yang

Tae Hoon Yang is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, he worked as a legal intern for the Disability Rights Maryland and for the Federal Emergency Management Agency in Washington, D.C.

Mr. Yang obtained his J.D. from The George Washington University Law School in May 2022. In May 2018, he graduated from the College of William and Mary, where he earned a Bachelor of Arts in Economics and philosophy.

Mr. Yang is licensed to practice law in the District of Columbia.