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It may be legal, but is it ethical?

ALBUQUERQUE, N.M. — An employer that requires outgoing employees to sign extensive non-compete agreements even though such agreements are unlikely to be upheld in a New Mexico court.

A business that plans to tell inquiring organizations only that a former employee resigned voluntarily, though in actuality the employee resigned after his inappropriate behavior was reported.

Yet another employer that agrees to a broad confidentiality clause in a settlement agreement involving an employee accused of sexual misconduct, such as in the cases of Harvey Weinstein and Matt Lauer.

All of these circumstances are legal under New Mexico law, but are they ethical?

Employment law and commercial litigation attorney Lorna Wiggins posed the question to the Economic Forum of Albuquerque on Wednesday. She was joined on stage by Central New Mexico Community College President Kathie Winograd to promote the 20th annual New Mexico Business in Ethics Awards, which will be held in April. The Journal is one of the sponsors of the event.

Wiggins is a shareholder with Albuquerque-based Wiggins, Williams & Wiggins, P.C.

“As a lawyer, I have a front row seat to some of the ethical dilemmas clients face,” said Wiggins. “We think the conversation about ethics is a daily, weekly, monthly topic.”

When asked how businesses should make ethical decisions in light of the threat of litigation from multiple parties, Wiggins suggested employers think about which claim they would most like to defend against. In the theoretical situation of a school bus driver who is suspected of substance abuse, is the employer more concerned about a wrongful termination suit or one filed after the driver potentially harms children with reckless driving?

She also said New Mexico law generally gives employers qualified immunity in cases where an employer provides a negative job reference, so long as the employer’s comments are made in good faith.

CNM’s Winograd said she encountered her own ethical conversation when she was the budget director at the college. One year, the college’s budget reflected money from the state for a building that hadn’t yet been completed. She, former CNM President Michael Glennon, and her other colleagues determined the ethical thing to do would be to write a check back to the state, and they spent four months trying to figure out how to do so.

“That was an incredibly important lesson to me,” said Winograd.

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