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Refers to Affirmative Action Plans which must be prepared by certain contractors and subcontractors of the federal government. Executive Order 11246 requires an affirmative action plan for supply and service contractors that meet a specific threshold. These employers must develop, update annually, and maintain a written AAP setting forth an action plan to achieve equal opportunity for women and members of certain specified racial and ethnic groups. Typically, the government contractors with at least 50 employees and a federal contract of $50,000 or more are required to develop and adopt written affirmative action plans for minorities, women, individuals with disabilities, veterans of the Vietnam era and special disabled veterans at each of their establishments.
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| Refers to the Americans with Disabilities Act which prohibits employers from discriminating against otherwise qualified individuals with disabilities because of their disabilities. |
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| Refers to alternative dispute resolution, that is the resolution of employment or other disputes through non-judicial means such as arbitration, mediation and related procedures. |
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Refers to the federal statute that prohibits employers with 20 or more employees from discriminating against persons age 40 or older because of their ages. Most ADEA claims are brought under the disparate treatment theory. Few courts have accepted the disparate impact theory for age claims. Remedies available under the ADEA consist primarily of back pay, lost benefits, reasonable attorneys fees, reinstatement, or, under limited circumstances, front pay. A jury trial is available. If the employer's violation was "willful" victims may also recover liquidated (double) damages. A violation is willful if the employer knew that its conduct violated the ADEA or showed reckless disregard for whether its conduct was prohibited. Administrative filing requirements also apply to ADEA claims.
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The organization employed by a mutual fund to give professional advice on the fund's investments and asset management practices (also called the "investment adviser").
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refers to the process of determining the amount of defense costs and any settlement or judgment which is properly attributable or "allocated" to covered claims against insured persons, on the one hand, and uninsured claims against insured persons and others (including the company), on the other hand. In essence, allocation simply refers to the process of determining the amount of insured loss when that loss is commingled with uninsured loss. Because this process can result in difficult and sometime contentious issues, several alternative insurance policies are now available to minimize allocation uncertainties and disputes. Some of those alternatives include:
a) Entity Coverage. This alternative grants coverage for Securities Claims (or perhaps employment claims) against the company whether or not D&Os are codefendants.
b) Co-Defendant Coverage. This alternative grants coverage for any claim against the company provided that the claim is also made against D&Os.
c) Pre-Determined Allocation. This alternative establishes in the insurance policy the specific allocation percentage applicable to securities claims (and perhaps other types of claims) regardless of the facts in each specific claim.
d) Methodology. This alternative identifies in the insurance policy the method by which the allocation issue will be determined in a particular case. This alternative does not eliminate the allocation issue, but identifies what criteria will be used by the parties in determining an appropriate allocation. Some of the methodologies contained in D&O policies include allocating based upon the "relative legal exposures" of the parties or "the relative legal and financial exposures of and relative benefits to" the parties. Other policies simply require that the parties commit their best efforts to agree on a fair and reasonable allocation under the circumstances of each claim. |
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The annual report to shareholders is the principal document used by most public companies to disclose corporate information to their shareholders. It is usually a state-of-the-company report, including an opening letter from the Chief Executive Officer, financial data, results of continuing operations, market segment information, new product plans, subsidiary activities, and research and development activities on future programs. The Form 10-K, which must be filed with the SEC, typically contains more detailed information about the company’s financial condition than the annual report.
Reporting companies must send annual reports to their shareholders when they hold annual meetings to elect directors. Companies sometimes elect to send their Form 10-K to their shareholders in lieu of providing shareholders with an annual report.
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Refers to the employment-at-will doctrine which traditionally provided, in the absence of a contract for a specific duration both employers and employees were free to terminate the employment relationship at any time. Employers did not need cause to terminate employees, and employees did not need cause to quit. Courts and legislatures have developed numerous exceptions to the doctrine. These exceptions include those based on breach of contract, promissory estoppel, the covenant of good faith and fair dealing, and public policy.
These exceptions are explained below:
a) Breach of Contract. If an employer expressly agrees, orally or in writing to hire an employee for a specific period of time, to discharge only for cause, or to abide by progressive disciplinary procedures, the agreement will usually be enforceable. Employers may be liable for breach of contract based on ordinary correspondence, employee handbooks, even on oral statements made to employees or prospective employees.
b) Promissory Estoppel. This is a doctrine used, in certain jurisdictions, to enforce promises in the absence of a contract. Promissory estoppel claims are often brought in the same lawsuit with breach of contract claims, as an alternative theory of liability. To be successful on the claim, an employee must prove that the employer made an unambiguous promise, that the employer reasonably expected the employee to rely on the promise, and that the employee, in fact, relied. The employee must also prove that the reliance was detrimental.
c) Public Policy. Most states now recognize a claim for discharges in violation of public policy. These claims can give rise to contract or tort damages (including pain and suffering and punitive damages) depending on the jurisdiction. The claims arise when employees are terminated for exercising their statutory rights, performing statutory duties or engaging in activity that the state's public policy indicates should be protected. Recognized examples of public policy violations include where employees are fired for refusing to commit a crime for the employer, refusing to commit perjury to protect the employer, or for "whistleblowing" to regulatory or law enforcement authorities.
d) Covenant of Good Faith and Fair Dealing. Several states have adopted this theory of recovery which recognizes an employer's implicit obligation not to discharge unfairly. In theory the covenant is broad enough to require employers to terminate employees only for good cause. Most states that have recognized the covenant, however, have not used it to impose a just cause requirement on all employee dismissals. Depending on the state, claims for breach of this covenant may give rise to contract or tort (personal injury) damages.
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| A shareholder-authorized purchase of additional shares using dividends and capital gain distributions. |
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