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OVERVIEW

Hannesson Murphy
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7210

F 317-231-7433

OVERVIEW

Hannesson Murphy
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7210

F 317-231-7433

Hans Murphy counsels and advises employers nationwide in virtually all aspects of managing their employment relationship with their workforce. Practical by nature, Hans identifies what each client wants to achieve, and then devises a balanced and actionable plan that suits their distinct business and operational imperatives.

OVERVIEW

Hannesson Murphy Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P : 317-231-7210

Hans Murphy counsels and advises employers nationwide in virtually all aspects of managing their employment relationship with their workforce. Practical by nature, Hans identifies what each client wants to achieve, and then devises a balanced and actionable plan that suits their distinct business and operational imperatives.

Hans negotiates and drafts employment agreements, confidentiality agreements, and non-competition and non-solicitation agreements. He advises on the creation and maintenance of effective policies and procedures to govern the workplace, as well as counsels employers with respect to disciplining and terminating employees, reductions in force, and ensuring that group terminations comply with the requirements of federal statutes and regulations. He also defends employers against contract, discrimination, harassment and wrongful discharge claims.

Hans has helped employers with a wide variety of legal matters, including claims involving breach of contract, defamation, discrimination, harassment and wrongful discharge. He has advocated employer positions in connection with privately negotiated settlements, arbitration proceedings and hearings, administrative proceedings, class and collective actions, and litigated claims in state and federal courts across the country, from the filing of a claim through trial and on appeal.

A featured speaker and educator, Hans regularly conducts trainings for employers on ways to improve their employment practices, and frequently presents at seminars for groups such as the Indiana Chamber of Commerce, the Association of Corporate Counsel and the Society for Human Resource Management (SHRM). Hans has presented on such topics as hiring and firing employees in Indiana; protection of a company’s intellectual property, trade secrets and confidential information; how the Affordable Health Care Act will affect employers; steps for effectively handling class action litigation; and properly classifying workers as independent contractors.

In the last several years, Hans has provided legal counsel pertaining to non-competition and trade secrets issues at the local, regional and national levels. He frequently lectures on the subject of 50-State Non-compete Enforcement, to assist employers with making sense of the different rules and regulations that apply in this area from state to state. Hans serves as the editor for the Practical Law Company’s resources on Indiana non-compete laws and trade secrets. He also has published several articles for the Defense Trial Counsel of Indiana (DTCI) on non-compete enforcement, as well as a variety of other topics, and is a frequent contributor to the firm’s employment blog, BTCurrents. Additionally, Hans has co-authored several guides for the Indiana Chamber of Commerce, including the current editions of the Indiana Chamber of Commerce’s Indiana Employer’s Guide to Monitoring Electronic Technology in the Workplace and the Indiana Chamber of Commerce’s Indiana Guide to Hiring and Firing.

Hans is about cutting to the chase when it comes to what his clients need to succeed. He doesn’t believe in wasting time, money or resources and focuses on advice and actions that diffuse stress and resolve issues. On many occasions, he protects his client’s reputation and bottom line by keeping them out of court. However, in the event litigation should ensue, he is dedicated to serving as a formidable advocate.

Prior to joining Barnes & Thornburg, Hans was an attorney in the civil litigation practice of a Miami, Florida, commercial law firm, practicing in general civil litigation, including admiralty law, medical malpractice, products liability, commercial liability, insurance defense, personal injury and employment. Hans has been involved in much more than just employment disputes, which helps him to serve as a well-rounded adviser today.

Honors

Exceptional Performance Citation, Defense Research Institute

Professional and Community Involvement

Chair, Defense Trial Counsel of Indiana Employment Section

Member, Indiana State Bar Association

Past president, Dade County Defense Bar Association

Past chair, Commercial Liability, Florida Defense Lawyers Association

EXPERIENCE
  • A former field engineer alleged racial discrimination in violation of Title VII of the Civil Rights Act after he was terminated for violating the employer's "zero tolerance" policy regarding the use of company-issued equipment. During an audit of two of the employee's company-issued laptops, the employer used a software program which detected pornographic images accessed at times when the employee was at work and off of work. Barnes & Thornburg successfully assisted the client in obtaining summary judgment on all of the plaintiff's claims.
  • In a unanimous opinion issued recently by the Indiana Supreme Court, the University of Evansville obtained a complete victory in a lawsuit brought by a tenured professor for breach of contract based on his dismissal for sexual harassment.

    This case represents the end result of seven years of protracted litigation. The University terminated the plaintiff, a tenured professor, following an investigation which concluded that he had sexually harassed one of his colleagues in violation of University policy. The professor responded by filing a breach of contract action in Vanderburgh Circuit Court against the University alleging that it did not properly follow its policies in terminating him. In tandem with this claim, the professor also filed a separate defamation lawsuit against the colleague who claimed that he had harassed her (that case likewise was successfully resolved on summary judgment against the professor). Thereafter, both parties filed motions for summary judgment.

    The trial judge granted summary judgment for the University and summarily denied the professor's competing motion. After the Indiana Court of Appeals reversed this decision, the University (supported by amicus briefs from the Indiana Legal Foundation, Indiana Chamber of Commerce, and Independent Colleges of Indiana) sought to transfer the matter to the Indiana Supreme Court. The Supreme Court accepted transfer and vacated the Court of Appeals’ decision. Following oral argument on the merits of the appeal, the Supreme Court affirmed the trial judge’s decision to grant summary judgment to the University in its entirety. The Supreme Court’s extensively detailed 40-page opinion fully validates not only the investigative procedures utilized by the University prior to terminating the professor, but also conclusively establishes that the University could contractually require its tenured professors to adhere to employment policies containing standards more stringent than those mandated by Title VII.
  • Plaintiff, Bonne Beecher, sued client-employer Roche Diagnostics Corporation (Roche) for race discrimination alleging that she had been unlawfully passed over for 27 different promotional opportunities. Beecher also claimed that the company retaliated against her by failing to promote her and giving her less desirable job assignments because she had complained about what she perceived as racism. Roche moved for - and was granted - summary judgment on the grounds that the record evidence conclusively demonstrated that Beecher had a long history of mediocre job performance and was not the most qualified candidate for any of the various positions she sought. Roche also showed that the company had not retaliated against the plaintiff, particularly given the fact that she remained employed by the company despite having filed two EEOC charges against it.
  • Plaintiff, Brian Lampley, sued client-employer Pollution Control Industries of America (PCI), claiming that his termination was due to race discrimination. However, Lampley was terminated because he threatened his supervisor. When Lampley reported to work one day smelling of alcohol, his supervisor took him to a local hospital to be screened consistent with the company's alcohol and drug-free workplace policy. While waiting to be tested, Lampley told his supervisor that he was "going to pay" for having him tested, and admitted to the supervisor "in full view of a hospital nurse" that he was threatening the supervisor. The district court granted summary judgment for PCI finding no evidence to support Lampley's race discrimination claim and concluded that he had been terminated for threatening his supervisor. The Seventh Circuit Court of Appeals agreed and affirmed summary judgment. The Court rejected Lampley's attempt to claim that he had been treated differently than several other workers who had been disciplined for various reasons, noting that unlike Lampley, none of those individuals had directly threatened their supervisor.
  • Plaintiff, Juliee Bates, sued client-employer Roche Diagnostics Corporation (Roche) for discrimination and retaliation based on her sex and alleged disability, and also claimed violations of the FMLA. Bates was employed in Roche’s information security group and was responsible for assisting the development and maintenance of information security policies, procedures and standards for Roche’s global operations and also training users and managers on information security projects. She was terminated in early 2011 for poor performance after extensive coaching by her supervisor.

    Roche moved for - and was granted - summary judgment on all of her claims. Bates’ sex discrimination and retaliation claims were based on a remark made by her former supervisor in 2006 that she reported to human resources. The court agreed with Roche that this claim was untimely and insufficient to support claims regarding her termination by a different supervisor in 2011. With respect to Plaintiff’s ADA discrimination, accommodation and retaliation claims, the court agreed with Roche that Bates was not a qualified individual with a disability: she never presented any work related restrictions to Roche, never requested an accommodation because of a disability, and never presented any evidence that she had an impairment that substantially limited one or more major life activities. The court also agreed there was no FMLA violation as the company had granted all of Bates’ requested leaves during her employment. Further, the record evidence showed that Bates’ supervisor did not treat employees differently because of their sex, disability or requests for leave. To the contrary, the evidence showed that Bates’ peers shared almost all of her same protected characteristics and her supervisor rated each of them more highly because of their better performance.
  • Plaintiff, Richard Thoennes, sued client-employer Roche Diagnostics Corporation (Roche) for age discrimination based on the Texas Commission on Human Rights Act (TCHRA). Roche prevailed following a four-day jury trial in Dallas, Texas, in which the jury returned a verdict in favor of Roche in all respects.

    Thoennes originally was a retail account manager for Roche. During a corporate reorganization in 2006, his position was eliminated and he was selected for a new position – channel business manager – that had new responsibilities such as calling on managed care accounts and formulating strategies for improving Roche’s market position with respect to those accounts. After assuming his new role, Roche’s market share with Thoennes’ largest managed care account promptly and significantly declined. Thoennes refused to acknowledge that there was any market share decline. He also refused to listen to the coaching and advice provided to him by two different Roche supervisors to correct the issue, which ultimately culminated in his placement on corrective action and termination. Thoennes was 50 when he was terminated and he claimed that he was fired as a result of his age. Thoennes’ age claim rested on the fact his replacement was younger than him, and that his supervisor used the word “tenure” on a handful of occasions – which Thoennes interpreted to mean “age.”

    At trial, Thoennes reiterated that there was no loss of market share in his largest account. Roche successfully rebutted this claim by showing the jury that the market share numbers drawn from the materials that Thoennes had produced in discovery confirmed there was a consistent decline during his management of the account. Roche also showed the jury that Thoennes’ supervisor treated the channel business managers who reported to him equally and regardless of their age – providing the highest performance scores to the oldest employee. Additionally, Roche showed that the supervisor used the word “tenure” not as a proxy for “age,” but merely as a substitute for “experience” because he expected more from someone, like Theonnes, who had been in sales with the company for a long time (a sentiment that Thoennes himself shared, conceding in a video clip from his deposition played to the jury that he expected more from himself because of his experience). Based on the evidence presented by Roche, the jury unanimously found that age was not a motivating factor in Thoennes’ discharge and ruled in favor of Roche.
  • Summary judgment granted in favor of client-employer (plaintiff) where the client asked the court to review and overturn an Arbitrator's pursuant to §301 of the National Labor Relations Act (NLRA), 29 U.S.C. §185.

    Batesville Casket Company and United Steel Workers of America (Union) entered into successive collective bargaining agreements (CBA) pursuant to the National Labor Relations Act. The first CBA was entered into in 1999. Among other things, the 1999 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. As the 1999 CBA neared expiration, Batesville and the Union negotiated a successor agreement, which went in to effect on Sept. 5, 2005. In early 2005, while the 1999 CBA was still in effect, a dispute arose between Batesville and the Union regarding whether certain Union employees--tool crib attendants--were entitled to weekend overtime. This dispute ripened into grievances which were eventually submitted to arbitration in 2006.

    The Arbitrator found that the Batesville violated the 1999 CBA from Jan. 1 to Sept. 5, 2005, and also the 2005 CBA from September 2005 to the date of the Award. When Batesville refused to pay any amounts under the 2005 CBA, the Union filed a Request for Clarification with the Arbitrator. In response, Batesville argued that the Union had grieved only alleged violations of the 1999 CBA; thus, the Arbitrator lacked jurisdiction to interpret the 2005 CBA. The Arbitrator ruled he had jurisdiction to award a remedy under the 2005 CBA. Batesville then filed an action in district court challenging the enforceability of the Arbitrator's Award as it related to the 2005 CBA.

    The district court ruled that the Arbitrator exceeded his contractual authority by purporting to issue an award under the 2005 CBA. First, it was undisputed that the grievances were submitted under the mandatory four-step dispute resolution process set forth the 1999 CBA. The CBA also mandated that each arbitration hearing should deal with no more than one grievance except by mutual written agreement. Here there was no mutual written agreement.

    Further, it was undisputed that, in conjunction with the arbitration hearings at issue, the union did not file grievances under the 2005 CBA. Like the 1999 CBA, the 2005 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. Therefore, no such grievances progressed through the four-step procedure required before any dispute would be subject to arbitration. As a result, the Arbitrator did not have authority to render decisions under the 2005 CBA.

    The court also rejected the Union’s argument that Batesville waived, by inaction, its objection to the Arbitrator expanding his award to include the 2005 CBA when it failed to object to the Union’s opening statement. Accordingly, the Court denied enforcement to the Arbitrator’s award as it applied to the 2005 CBA.
  • Summary judgment granted to client-employer in a case involving alleged Title VII claims of sexual harassment, discrimination and retaliation, and a pendent state law claim under the Iowa Civil Rights Act for sexual harassment, discrimination and retaliation.

    Peggy Tokheim was employed by Georgia-Pacific. Tokheim argued that she was subjected to sexual harassment and discrimination during her tenure with Georgia-Pacific. Upon termination, she brought an action against the company alleging violations of Title VII and the Iowa Civil Rights Act. Georgia-Pacific moved for summary judgment arguing that Tokheim’s claims were barred under the doctrine of judicial estoppel. Specifically, Tokheim failed to disclose her claims against it during a prior Chapter 13 bankruptcy proceeding.In ruling on Georgia-Pacific’s motion for summary judgment, the district court found that Tokheim’s failure to amend her bankruptcy schedules to include her claims was the equivalent of representing to the bankruptcy court that these claims did not exist. Consequently, her subsequent lawsuit against Georgia-Pacific was “clearly inconsistent” with her position taken in the bankruptcy court. Judicial “acceptance” of Tokheim’s position occurred when the bankruptcy court discharged her debts based on the information provided to it. The district court observed that Tokheim’s administrative claims against Georgia-Pacific were filed with the EEOC and the Iowa Civil Rights Commission more than three months before the bankruptcy proceedings were concluded. As a result, if she were to have secured a judgment against Georgia-Pacific without disclosing her claims in the bankruptcy proceeding she would have derived a windfall. The court found that Tokheim was bound by her previous representations to the bankruptcy court and was judicially estopped from pursuing an action against Georgia-Pacific.
  • Summary judgment in favor of client (defendant) affirmed by the Seventh Circuit Court of Appeals.

    For over a decade, Anthony J. Suskovich was classified as an independent contractor while working for Anthem/WellPoint (WellPoint) as a computer programmer. Suskovich worked directly as a contractor for WellPoint until 2001, but from then on worked for WellPoint thru Trasys, an information technology company that supplied contract workers. Following his death, Suskovich’s estate sought declaratory relief affirming Suskovich actually had been either an employee of WellPoint or a joint employee of Trasys and WellPoint. The estate also brought an action under the Fair Labor Standards Act (FLSA) seeking monetary relief for overtime compensation he allegedly was denied. The estate further alleged that Suskovich was denied benefits under the Employee Income and Security Act (ERISA), and sought indemnification for Suskovich’s unpaid taxes due to WellPoint and Trasys’ alleged failure to withhold.

    The district court held that Suskovich was an independent contractor and therefore ineligible for benefits or overtime. The Seventh Circuit Court of Appeals agreed and affirmed summary judgment. The Court observed that Suskovich controlled the details of his work; was accountable to WellPoint only for the results of his work; that he had been engaged for specific projects; and that he was never guaranteed that his work would extend beyond limited durations. Finally, the Court observed that Suskovich was issued 1099 forms from both WellPoint and Trasys and never was added to either company’s payroll. 553 F.3d 559, 2009 U.S. App. LEXIS 1148, 45 Employee Benefits Cas. (BNA) 2390, 14 Wage & Hour Cas. 2d (BNA) 705, 157 Lab. Cas. (CCH) P 35533, 157 Lab. Cas. (CCH) P 60745, 103 A.F.T.R.2d (RIA) 573 (7th Cir. Ind. 2009).
  • Summary judgment in favor of client-employer granted where plaintiff failed to establish evidence that a former independent contractor engaged by the defendant-client was actually an employee (see affirmance on appeal above).
  • The Seventh Circuit Court of Appeals upheld the validity of client's employment arbitration agreement holding that former employee was required to submit her claims to arbitration.

    Appellant, Tonya Baumann, sued client-employer The Finish Line, Inc. (Finish Line) for discrimination based on sex and sexual harassment. Before Finish Line hired Baumann, she signed a contract agreeing to resolve any claims concerning her employment through arbitration. The contract referred to a separate plan document containing a more detailed description of the arbitration procedures, including a cost-sharing provision. Baumann's counsel refused to dismiss the case and aggressively resisted Finish Line's attempts to enforce the arbitration agreement. Finish Line moved to compel arbitration and the district court agreed, dismissing Baumann's complaint. Baumann appealed.

    On appeal, Baumann argued that she was not bound by the agreement because she never received a copy of the separate plan document. Baumann also argued that the plan document's cost sharing provision rendered arbitration prohibitively expensive. The Seventh Circuit disagreed. Affirming the District Court in all respects, the Court held that the contract incorporated by reference the terms of the separate plan document and therefore it was immaterial whether Baumann exercised her ability to review it. The Court also held that Baumann failed to present sufficient evidence demonstrating the fact that the plan document's cost-sharing provision would render arbitration prohibitively expensive.
INSIGHTS & EVENTS
Publications
  • Indiana Guide to Hiring and Firing (5th and 6th Editions) (Co-Authored) (Indiana Chamber of Commerce, 2016)
  • Indiana Employer's Guide to Monitoring Electronic Technology in the Workplace (Co-Authored) (Indiana Chamber of Commerce, 2011)
  • How The Department of Labor's 2016 FLSA Overtime Expansion Rule Will Impact the Evaluation of Exempt Status for Indiana Employers (Co-Authored) (Defense Trial Counsel of Indiana (DTCI), 2016)
  • Reducing Discovery Costs in Employment Cases (DTCI, 2016)
  • Indiana Non-Compete Laws (Editor) (Practical Law Company – Thompson Reuters, 2016-Present)
  • Indiana Trade Secret Laws (Editor) (Practical Law Company– Thompson Reuters, 2016-Present)
  • Indiana Drug-Testing Laws (Editor) (Practical Law Company– Thompson Reuters, 2016-Present)
  • The Limits of What's Reasonable: A Practitioners Guide To The Enforceability Of Restrictive Covenants In Indiana (DTCI, 2015)
  • The Challenges of Classifying Workers as Independent Contractors (DTCI, 2015)
  • The Coming Storm: How the New Health Care Act Will Affect Employers & Potentially Expose Them To Additional Liability And Lawsuits (Lorman, 2010, 2013, 2014)
  • Indiana Background Check Laws (Editor) (Practical Law Company– Thompson Reuters, 2012-Present)
  • Don't Bet the Company on a Class Action: Navigating The Turbulent Seas of Class Action Litigation (Lorman, 2009)
  • Workplace Behavior & Privacy – Current Developments (Lorman, 2016)
  • Accountant Liability for Negligence in the Absence of Privity (Florida Trial Advocate Quarterly, Fall 2005)
  • Multiple blog posts on a variety of employment related issues - available at btcurrents.com 
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