Oklahoma Employment Law

Nearly everyone has employment law issues at some whether as an employee or an employer. I provide answers to questions about Oklahoma employment law – for both Oklahoma employers and Oklahoma employees.

The steps to take when the government shows up [unannounced] to investigate your business

It is the way no business owner wants to start the day:

“Hello, I am an investigator from the [insert name of applicable government agency] and I am here to conduct a compliance investigation for your business. See my badge!”

Any small business owner would be frightened, unnerved, frustrated and more. From my experience in this area, I will tell you: It is probably not as bad as you think. Take a deep breath and consider following the steps listed below which Bill Pokorny laid out in his article What To Do When the DOL Makes an Unannounced Visit: Wage & Hour Insights:

1. Be polite to the investigators. If you are not moved to do so out of common courtesy, remember that being disrespectful to a government agent with the power to make your life very difficult and assess large financial penalties is not a wise business decision.

2. Contact your lawyer immediately. Make sure he or she has experience handling investigations. If not, get a referral to someone who does.

3. Don’t turn over any records, arrange employee interviews, or answer any other substantive questions until you’ve talked to your lawyer.

4. Don’t talk to your employees about the visit until you talk to your lawyer. Even questions that seem innocent to you can give the impression that you are pressuring employees or possibly retaliating against them for cooperating with the investigators. Most importantly, make sure your time and payroll records are in good order BEFORE the government comes knocking.

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Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

Two scenarios where your Oklahoma non-compete agreement might be enforceable

In an article from a few months ago, I wrote about how Oklahoma law categorically invalidates non compete agreements. Oklahoma has made a public policy decision that with a couple of exceptions employees will not be barred from competing. Below are the exceptions to the rule that Oklahoma non-compete agreements are barred:

1. When you sell the goodwill of a business. When a business sells their interest in the business including the goodwill, Oklahoma law allows a non compete agreement between the seller and buyer. While “goodwill” is an intangible asset and often difficult to define, in Oklahoma it generally means the “custom or patronage of any established trade or business; the benefit or advantage of having established a business and secured its patronage by the public.”

2. Business Partners splitting up. A non compete agreement is also allowed when a business with multiple owners or partners dissolves.  In anticipation of a dissolution of the partnership, the partners may agree that none of them will carry on a similar business within a specified county and any county or counties contiguous thereto, or a specified city or town or any part thereof.

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Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law, Oklahoma non-compete

Are you going to get sued under your employment agreement?

I regularly look at employment agreements that contain non compete and non-dislcosure limitations/  Often, the circumstances are that an employee has left and the former employer needs to know what their rights are.  Sometimes, I advise employees on their rights in regard to their former employer.  I distilled a lot issues down into a few key points that employers consider when deciding whether to try to enforce an employment agreement non-compete or non disclosure provision:

1.  Money. The financial resources available to the company.

2.  Length of Employment.  The length of time the employee has been with the company.  The longer the relationship between the employee and company, the more likely the company is to believe the employee has valuable information that may hurt the company.  There also may be more of an emotional attachment in a longer relationship which a company sometimes feels is violated by the employee’s simple act of changing jobs.  Also factored into this category is whether the employer believes that the information the employee has could be damaging to the employer if disclosed.

3.  Positive Results.  How strongly the company feels about its’ chances of getting a positive result.  There are times when violation of an employment agreement is so clear, the employer’s chances of winning a lawsuit or getting a favorable settlement are virtual “locks.”  However, I have seen many murkier situations where litigation could be lengthy and expensive and this dissuades the employer from going to court.

4.  Attitude.  The attitudes of the Employer’s decision makers.  Are the individuals who will decide whether to sue, settle or let it go, naturally aggressive or more conciliatory in nature?

5.  Experiences.  The previous experience (if any) the employer has had with enforcement of employment agreements.  Positive experiences provide the confidence to go to court again while a negative experience usually leads to substantial trepidation.

 

 

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

Proper vs. Improper Employment Termination (how to fire)

Below is some very simple guidance on terminating employees, if you, as an employer, are going to have to do it.  If you happen to catch an employment termination claim, your attorney will be really glad you did these things.

Proper Termination                                        Improper Termination

Follow policy and procedure Firing without sufficient documentation
Gather and maintain proper documentation Firing without following proper procedure
Do not delay once decision is made Providing a positive reference for a terminated employee
Determine status of employee Arguing with the employee during the termination meeting
Have at least one witness during termination meeting
Provide written and dated termination notice; obtain employees signature on notice
Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

Worst piece of evidence in a sexual harassment case?

In working with employers and employees on sexual and racial harassment claims, I have seen some extroadinary stupid actions.  Supervisors who joke about a female suboordinates body parts, a manager running around with panties on his head, a boss who forced female employees to have meetings at strip clubs the and insaneness of a male supervisor referring to a female employee’s pack of cigarettes in her shirt pocket on her chest as a “third tit” (That is a quote).

By far though the email exchange below between a a male supervisor and a female employee about to take medical leave is the worst:

Female Employee: Just reminding you I will be gone from tomorrow through the 14th, on medical leave.  I know I will be missed J  Hope I have a job when I come back!

Supervisor: You will have a job when you come back . . . it may be as my mistress, but you will have a job.

This exchange teaches two lessons:

  1. Don’t write anything you would be embarrassed for your wife, husband, mother to read.
  2. If you must write it, remember it could be read in court some day or even worse be published to the world through the Web.

This sexual harassment case settled on terms favorable to the employee.


Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

Be careful in the shark-infested waters of employment references

Why are employment references fraught with peril?

While giving truthful employment references is not legally actionable, references, by nature, tend to be highly judgmental. The employer’s view of the truth may be different than the employee’s view of the truth. This is particularly true in the case of under-performing employees.

Involuntary Termination

In the case of employment that has been involuntarily terminated [i.e., fired], it is a fair assumption the employee will typically feel some ill will towards his or her former employer and may be looking for an opening to file a legal suit. Often employees who leave the service of a company voluntarily have done so because they were unhappy with the company or in their position. In any case, references given for former employees can create an opening for legal action if the employee does not feel he or she has been fairly treated by the former employer.

Verbal References

Some small business owners feel they can be less cautious when giving verbal references than they would be in the case of supplying a written one. Not true! Any type of reference can be legally actionable. While many courts are sympathetic to the need of employers to give references, others are not. Courts have been known to rule for an employee because a reference given, while good, was not good enough.

No Reference 

It is a safe policy to offer no references at all beyond confirming dates of employment, the position held, and rate of pay earned. This may not seem right, but your responsibility is to keep your business running smoothly and out of court so that your current employees can enjoy a healthy working environment.

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

What does at-will employment mean in Oklahoma?

It is prudent for employers and employees to know where they stand legally.

In Oklahoma, the “ terminable at-will employment doctrine” allows an employer to discharge an employee for good cause, for no cause, or even for morally wrong cause without being liable for a legal wrong.

It means your Oklahoma employer can terminate you at any time, for any reason.  It means you can terminate your employment at any time, for any reason.  Each day of employment is a try out for the next.

Even if you are an “at-will” employee, your employer generally cannot terminate you because of your skin color, your gender, your national origin and some other protected status along those lines.

If you have an employment contract that provides for employment with business for a specific period of time, then you are not an “at-will” employee.

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

Non compete Agreements are still not OK in Oklahoma

I wrote a few months ago about how Oklahoma law prohibits non compete agreements for former employees and touch on exceptions here.  Yesterday, the Oklahoma Court of Civil Appeals reiterated that any agreement which restricts a former employee’s ability to work in the same field as the former employer is void under Oklahoma law.

The case is Scanline Medical, L.L.C. v. Brooks.  The restrictive agreement in question absolutely prohibited the former employee from “sell[ing] any medical device product competitive with any of the Spinal Concepts [or Orthovita] Products, or in any way [possessing] a financial interest . . . in any business engaged in the distribution, solicitation, promotion or sale of any medical device product competitive with any of the Spinal Concepts [or Orthovita] Products.”

By completely preventing the former employee from working in his “chosen profession” the noncompete agreement violated Oklahoma law and the Court would not enforce it.  Competition is allowed but an employer can protects it confidential and proprietary information with the right agreements in place.

I work with employers and employees to address non compete agreement issues and put reasonable protections in place to protect both sides.  Please feel free to contact me at sjr@shawnjroberts.com if you have any questions.

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law, Oklahoma non-compete

Two scenarios where a non compete agreement is enforceable

 

In an article from a few months ago, I wrote about how Oklahoma law categorically invalidates non compete agreements. Oklahoma has made a public policy decision that with a couple of exceptions employees will not be barred from competing. Below are the exceptions to the rule:

1. When you sell goodwill. When a business sells their interest in the business including the goodwill, Oklahoma law allows a non compete agreement between the seller and buyer. While “goodwill” is an intangible assets and often difficult to define, in Oklahoma it generally means the “custom or patronage of any established trade or business; the benefit or advantage of having established a business and secured its patronage by the public.”

2. Business Partners splitting up. A non compete agreement is also allowed when a business with multiple owners or partners dissolves.  In anticipation of a dissolution of the partnership, the partners may agree that none of them will carry on a similar business within a specified county and any county or counties contiguous thereto, or a specified city or town or any part thereof.

If you have any questions about non compete agreements, please feel free to contact me anytime at sjr@shawnjroberts.com.

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

You will have a job . . . it may be as my mistress, but you will have a job

How do you lose a sexual harassment case if you are an Oklahoma employer?

Consider the pathway paved by the supervisor in this post:

A supervisor actually wrote the line in the title in an email to a woman he was supervising, as the woman was preparing to take medical leave to have surgery.  I came across this email while working on employment discrimination case.  Imagine that, an employer with a supervisor like this one getting sued for employment discrimination!?!  It happened, I defended the employer.   Here is the full email exchange:

Female Employee: Just reminding you I will be gone from tomorrow through the 14th, on medical leave.  I know I will be missed J  Hope I have a job when I come back!

Supervisor: You will have a job when you come back . . . it may be as my mistress, but you will have a job.

This exchange teaches two lessons:

  1. Don’t write anything you would be embarrassed for your wife, husband, mother to read.
  2. If you must write it, remember it could be read in court some day or even worse be published to the world through the Web.
Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law