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Randy Freking is on Twitter @Frekingandbetz

Randy Freking

Follow Randy on Twitter for his latest news and commentary about current events that affect employees and employers.

His most recent posts are:

SCARY: Appeals court judges may not be random -Coalition Challenges Selection of Judges in Same-Sex Marriage Case. Read more in The New York Times article written by Adam Liptak.

Warren Buffett was right again: CEO pay climbing! CEOsMore Transparency, More Pay for C.E.O.s. See Dealbook’s article by Andrew Ross Sorkin.



Tracie Hunter Case Now Novel – Revised

Randy Freking

When two jurors on Wednesday filed sworn affidavits retracting their verdicts on one count against the former juvenile court judge, the filing presents a novel question: should a judge wait to poll the jurors after the complete verdict is announced in open court, or can a judge poll them earlier?

Normally, a losing party requests that a jury be polled (is this your true verdict?) when a verdict is returned, and a judge is required to grant the request.

In Hunter’s case, the jury returned one verdict – guilty – on one count and Judge Nadel polled them after “sealing the verdict” and not reading the guilty verdict. They all said the one verdict was their verdict.

Four days later, after two more days of deliberations, the jury announced they were deadlocked on the other eight counts.

Judge Nadel then read the verdict from four days earlier-guilty- but refused the former judge’s request to have the jurors polled after Judge Nadel read that verdict in open court. Two jurors now say they changed their minds again before the full verdict was read in open court

There is no precedent in Ohio for this situation and, thus, the Hunter case-worthy of a nonfiction novel- now will be worthy of a precedent setting court decision.  A political hot potato, for sure.

Respected retired Court of Appeals Judge Mark Painter remarked simply: “I am glad I am not still on the appellate court.”

For more information on the verdicts, read Kimball Perry’s article in The Cincinnati Enquirer.

The previous version of the blog misspelled precedent as decendent.  Sorry for the error.




Randy Freking

The United States Supreme Court opened its new term this week. Of importance to employees and employers, the Court will consider eight labor and employment law cases over the next nine months raising a variety of issues involving discrimination, pensions and benefits, wage and hour law, and federal employees’ rights.

Just last week, the Court added two cases for review. One involves the issue of whether Abercrombie & Fitch Stores could lawfully reject a Muslim job applicant who wore a head scarf, after a Federal Court of Appeals denied the Equal Employment Opportunity Commission’s claim of religious discrimination. The second case accepted by the Court last week involves a case under the Employee Retirement Income Security Act involving the “duty of prudence” held by Plan Fiduciaries.

Perhaps the most noteworthy case of the eight labor and employment law cases on the docket this term involves whether the EEOC’s pre-suit efforts to settle discrimination charges under Title VII of the 1964 Civil Rights Act are subject to judicial review. A mining company argues that courts should have the authority to review the EEOC’s settlement efforts. An appeals court had ruled that Title VII makes the settlement process confidential and leaves it to the Agency’s discretion as to whether a proposed settlement is acceptable.


Adrian Peterson Case a Reminder to All Employees

Randy Freking

In recent days, there has been a plethora of attention around the criminal allegations against star NFL running back, Adrian Peterson of the Minnesota Vikings.  After Peterson was indicted for a felony child abuse allegation in Texas, he was deactivated for the Vikings’ game this past Sunday, reinstated to the team on Monday, and now, in a sudden reversal, has been suspended by the team pending the outcome of the criminal case.

A common question that employees have is “can my employer fire me for what I do on my own time, outside of work?”  The answer to this seemingly simple question is “it depends.”  It depends on the activity involved, and whether that activity has any legal protection under your State’s laws.  Generally, if there is no law protecting you from being fired for the activity under consideration, your employer can fire you for what you do on your own time, outside of work.

If you are not a union or governmental employee with special protection against being fired without a reason, there are very few state laws that protect you from being fired for activity that you do on your own time, outside of work.  For example, if you are charged with a crime such as DUI, your employer in most instances can discipline or fire you for that conduct regardless of whether you are actually convicted by a court.  The Adrian Peterson case is a good reminder that your off duty conduct should not include any activity that could bring embarrassment to your employer.



Randy Freking

Employees are increasingly being asked to sign agreements that prohibit them from working for a company’s rivals, according to a June 8, 2014 column in the New York Times.The particular situation highlighted in the article illustrates this problem.

Colette Buser is a 19 year old college student who worked as a counselor the three previous summers at a camp in Wellesley, Massachusetts. When she applied for another summer camp job this year, the summer camp withdrew an offer of employment to her because it feared that her previous summer camp would sue to enforce a noncompete clause tucked into Ms. Buser’s 2013 summer employment contract.

Noncompete clauses now appear in far more employment fields beyond the traditional worlds of technology, sales, and major corporations with tightly held secrets. The clauses appear to be extending to nearly every field of employment, from event planners to chefs to yoga instructors. Ironically, they are often required by employers who hail “competition” as a bedrock of our economic system of course, when it benefits them.

Prospective employees being asked to sign noncompete agreements should recognize that noncompete agreements are governed by state law. Courts in Ohio, Indiana, and Kentucky have differing rules regarding the enforcement of noncompete agreements and employees should understand those restrictions before signing noncompete agreements.

The good news is that some courts are becoming increasingly hostile to full enforcement
of noncompete agreements because employers often overreach by including unreasonable geographic and time limitations in the clauses. Any employee who has a noncompete agreement and wishes to seek other employment should fully understand their rights and the laws governing the noncompete agreements, depending upon the particular jurisdiction.