Monday Q&A What you need to know about employment law

burtch1With the economy in on its head, so are many relationships between employees and employers. Disagreements over severance, claims of discrimination, and theft of intellectual property are among the many employment law disputes that are increasingly common in courts of law today.

BizSense sat down with employment attorney Douglas Burtch, who recently joined downtown lawfirm Macaulay and Burtch, where his father J.B. Burtch is partner.

Douglas Burtch got his start in employment law working in the Northern Virginia office of Pillsbury Winthrop, an international firm with more than 12,000 attorneys. He followed the partner he worked under there to Littler Mendelson. Between the two firms Burtch handled cases for Fortune 500 clients including Boeing, Wal-mart, and the Atlantic Group.

Burtch graduated in 2003 from the University of Richmond School of Law, with an undergraduate degree from Emory University.

Back in his hometown of Richmond, Burtch now looks forward for the chance to work with his father and turn to him as a mentor. Macaulay and Burtch has five attorneys practicing labor and employment law, and a few of them are also engaged in lobbying. The firm primarily represents employers, but also represents executives and proffessionals.

Below is an edited transcript.

RBS: Is there a correlation between the amount of employment litigation and the unemployment rate?

Burtch: I think that there is. In 2008 the Equal Employment Opportunity Commission and the Virginia Human Rights Council saw a huge increase in the amount of discrimination suits filed.

I think the EEOC statistic was a 15 percent increase in 2008 on EEOC charges.  I believe in 2008 they saw more charges than filed any other year of the commission. That is sex, age, race, disability, and other  discrimination cases. The numbers are up, obviously it makes sense that as more employees are laid off they talk to an attorney or file a case pro se to see if they have a claim or not. We’re seeing an increase in the number of claims that might not have as much merit.

RBS: What types have cases have appeared on your docket recently?

Burtch: I’ve done a lot of restrictive covenant work, non-competition agreements, non-solicitation agreements and trade secrets.

I was drawn to those type of cases becasue in today’s economy companies have to make sure their work and their intellectual property isn’t walking out the door with their departing employees

Whether that is an employee they actively escorted out the door or an employee who left voluntarily to start up a comptetive business or left to join another company in another industry.

It is very important for employers to protect their intellectual property.

RBS: Does the economy make intellectual property theft a bigger problem? Does more layoffs equal more incidents?

Burtch: Very much so, I would say it is a huge hot button issue in employment law today. Employers have to take hard look in the mirror and their clients are requiring them to identify inefficiencies, which employees are underperforming and what job duturies are overlapping.

We work with employers in terms of identifying those inefficiencies and documenting which employees may not be performing up to the standards that they need to today.

When those employees leave, its really easy to hit send to my yahoo account, its really easy to go in and burn to a CD. Its critical that employers are monitoring those things and its critical they have agreements protecting their information. Thats anything from trade secrets, price lists, customer lists, marketing plans or any sort of propriety business  development materials.

But from the flip side you have a whole host of employees who have either been let go or chosen to walk out the door seeing a new opportunity. A lot of of people see this as a time of opportunity and they also need to know their rights.

RBS: What recent changes in employment law should small business owners be aware of?

Burtch: There have been a number of changes in the last couple years. There has been changes in the American with Disabilities Act. That has been amended recently and it covers employers with 15 or more employees. Basically Congress has expanded the definition of a person with a disability. It has changed the interpretation of the word disability to encompass a much larger group of individuals.

For a larger group of employees, the Family and Medical Leave Act has been recently amended affecting employers with 50 or more employees. That has been amended to give more leave options for familiy members of people in the armed forces and service members and also the reserves as well.

RBS: Card check is a big issue now, how would passage of that bill affect small and medium size business?

Burtch: The Employee Free Choice Act is an extremely significant piece of legislation right now, and it looks like it wil be passed in one way shape or form. It seems to be a priority of President Obama and a number of interest groups. The act as drafted  will make it easier for unions to be recognized in a workforce.

Industries that have typically been non-union industries now will be vulnerable to unionization.  Even a small business with a workforce of two or more may have to address a unionized workforce and so what they can do now is talk to employment counsel now to set up their plan on how they are going to address this potential unionization. It is different with every industry and different with every employer.
RBS: What is the most common mistake made by small businesses that comes back to hurt them later?

Burtch: Wage and hour claims. often times  a small employer may not recognize that they also have a requirement to pay overtime so we see a number of wage and labor claims for unpaid overtime against small employers. They may have an oral agreement or hand shake understanding that comes back down the line to bite them.

burtch1With the economy in on its head, so are many relationships between employees and employers. Disagreements over severance, claims of discrimination, and theft of intellectual property are among the many employment law disputes that are increasingly common in courts of law today.

BizSense sat down with employment attorney Douglas Burtch, who recently joined downtown lawfirm Macaulay and Burtch, where his father J.B. Burtch is partner.

Douglas Burtch got his start in employment law working in the Northern Virginia office of Pillsbury Winthrop, an international firm with more than 12,000 attorneys. He followed the partner he worked under there to Littler Mendelson. Between the two firms Burtch handled cases for Fortune 500 clients including Boeing, Wal-mart, and the Atlantic Group.

Burtch graduated in 2003 from the University of Richmond School of Law, with an undergraduate degree from Emory University.

Back in his hometown of Richmond, Burtch now looks forward for the chance to work with his father and turn to him as a mentor. Macaulay and Burtch has five attorneys practicing labor and employment law, and a few of them are also engaged in lobbying. The firm primarily represents employers, but also represents executives and proffessionals.

Below is an edited transcript.

RBS: Is there a correlation between the amount of employment litigation and the unemployment rate?

Burtch: I think that there is. In 2008 the Equal Employment Opportunity Commission and the Virginia Human Rights Council saw a huge increase in the amount of discrimination suits filed.

I think the EEOC statistic was a 15 percent increase in 2008 on EEOC charges.  I believe in 2008 they saw more charges than filed any other year of the commission. That is sex, age, race, disability, and other  discrimination cases. The numbers are up, obviously it makes sense that as more employees are laid off they talk to an attorney or file a case pro se to see if they have a claim or not. We’re seeing an increase in the number of claims that might not have as much merit.

RBS: What types have cases have appeared on your docket recently?

Burtch: I’ve done a lot of restrictive covenant work, non-competition agreements, non-solicitation agreements and trade secrets.

I was drawn to those type of cases becasue in today’s economy companies have to make sure their work and their intellectual property isn’t walking out the door with their departing employees

Whether that is an employee they actively escorted out the door or an employee who left voluntarily to start up a comptetive business or left to join another company in another industry.

It is very important for employers to protect their intellectual property.

RBS: Does the economy make intellectual property theft a bigger problem? Does more layoffs equal more incidents?

Burtch: Very much so, I would say it is a huge hot button issue in employment law today. Employers have to take hard look in the mirror and their clients are requiring them to identify inefficiencies, which employees are underperforming and what job duturies are overlapping.

We work with employers in terms of identifying those inefficiencies and documenting which employees may not be performing up to the standards that they need to today.

When those employees leave, its really easy to hit send to my yahoo account, its really easy to go in and burn to a CD. Its critical that employers are monitoring those things and its critical they have agreements protecting their information. Thats anything from trade secrets, price lists, customer lists, marketing plans or any sort of propriety business  development materials.

But from the flip side you have a whole host of employees who have either been let go or chosen to walk out the door seeing a new opportunity. A lot of of people see this as a time of opportunity and they also need to know their rights.

RBS: What recent changes in employment law should small business owners be aware of?

Burtch: There have been a number of changes in the last couple years. There has been changes in the American with Disabilities Act. That has been amended recently and it covers employers with 15 or more employees. Basically Congress has expanded the definition of a person with a disability. It has changed the interpretation of the word disability to encompass a much larger group of individuals.

For a larger group of employees, the Family and Medical Leave Act has been recently amended affecting employers with 50 or more employees. That has been amended to give more leave options for familiy members of people in the armed forces and service members and also the reserves as well.

RBS: Card check is a big issue now, how would passage of that bill affect small and medium size business?

Burtch: The Employee Free Choice Act is an extremely significant piece of legislation right now, and it looks like it wil be passed in one way shape or form. It seems to be a priority of President Obama and a number of interest groups. The act as drafted  will make it easier for unions to be recognized in a workforce.

Industries that have typically been non-union industries now will be vulnerable to unionization.  Even a small business with a workforce of two or more may have to address a unionized workforce and so what they can do now is talk to employment counsel now to set up their plan on how they are going to address this potential unionization. It is different with every industry and different with every employer.
RBS: What is the most common mistake made by small businesses that comes back to hurt them later?

Burtch: Wage and hour claims. often times  a small employer may not recognize that they also have a requirement to pay overtime so we see a number of wage and labor claims for unpaid overtime against small employers. They may have an oral agreement or hand shake understanding that comes back down the line to bite them.

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