Trade Secrets/Data Privacy

Earlier this week, we discussed how when drafting or reviewing a restrictive covenant, few are likely to devote any significant attention to the provisions in the “Miscellaneous” section of the agreement, and how this is a significant mistake.  In particular, we discussed how forum selection clauses are extremely important when drafting restrictive covenant agreements.

In this post, we are considering Choice of Law and Arbitration provisions.Continue Reading Provisions That Could Sink Your Restrictive Covenant–Part Two

When drafting or reviewing a restrictive covenant, you are likely to spend a significant amount of time considering its specific purpose and scope.

Few, however, are likely to devote any significant attention to the remaining provisions in document, including the likely “Miscellaneous” portion that is almost always a part of the agreement.  This is a mistake.  There are numerous provisions contained in this section that can, in some circumstances, be outcome-determinative.  Below is a consideration of three such provisions and their importance to your agreement.Continue Reading Provisions That Could Sink Your Restrictive Covenant–Part One

Our firm’s latest “Advisory” just went out this afternoon explaining the D.C. Circuit Court of Appeals‘ ruling from last Friday that President Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional, and therefore the Board was without the required quorum to act in a case from last year in which it found a soda-bottling company had committed an unfair labor practice.

This case involves a fascinating legal issue of the interpretation of the U.S. Constitution and the separation of powers between the Legislative and Executive branches (at least for those who find such things fascinating).  This decision is also good news for a particular soda-bottling company that challenged the NLRB’s decision.
Continue Reading NLRB Board Appointments Ruled Invalid — What Does This Mean for Employers?

Despite expected legislative gridlock and election-year politics, 2012 turned out to be an exciting year for changes in the labor and employment law landscape.  The headlines just kept coming. Some of the top stories were:
Continue Reading Reviewing the Biggest and Baddest Labor & Employment News of 2012

HR professionals know that employment litigation can be expensive.  Very expensive.  One reason litigation has become so expensive, especially recently, is because companies use and store massive amounts of electronic data, including emails and computer files such as Microsoft Word and PowerPoint documents.  When a company is sued for an employment law violation, the plaintiff (in most cases, a former employee) is entitled to “see” all of those electronic files that may be relevant to the claims brought or the defenses relied on by the employer.  This process is commonly referred to as “e-discovery.”
Continue Reading Turning the Tables on Electronic Discovery

The California Legislature made headlines yesterday by passing legislation that prohibits employers from demanding the social media usernames or passwords of current employees and applicants.  The bill also prevents employers from requiring employees or candidates to log in to social media in the presence of the employer (i.e., the employee’s supervisor, or the interviewer, or a human resources manager – you get the point).
Continue Reading Password Protection: State Style

I love the Little League World Series.  Classic Americana.  Teams from all over the U.S. and the world play, and proud parents watch them.

Billie Ann Tomei’s son Cole and his team from California (which was coached by her husband Trevor) were good enough to play in the Little League World Series.  But when Billie Ann, an office manager for a CPA, asked for time off to travel to see Cole play, her boss said “No.”  According to Billie Ann, he told her, “If you go, write yourself your last [pay]check.

Well, Billie Ann wrote herself that check and went to see her son play.  Do you think she regrets her decision?
Continue Reading A World Series, a Terrible Boss and a Dedicated Parent

The National Labor Relations Board is taking an increasingly hard look at the language in employer handbooks, as shown by two recent cases from the NLRB’s Arizona Region.  Recently, Hyatt Hotels Corporation agreed to settle an unfair labor practice charge that claimed a provision in the company’s employee handbook acknowledgment form was too broad.  The provision stated that Hyatt’s at-will employment policy could not be changed except by a written agreement signed by the employee and particular executives.  Similarly, earlier this year an administrative law judge decided that a disclaimer in the handbook of an American Red Cross unit stating that the at-will employment relationship “cannot be amended, modified or altered in any way,” could be interpreted to interfere with employees’ rights to engage in group activity to try to change the policy.

So, why the sudden attention by the NLRB to employee handbook policies on employment “at-will”? 
Continue Reading At-Will Employment Disclaimers in Employee Handbooks Are Getting Some Employers into Hot Water with the NLRB – Are You Next?

Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases.
Continue Reading Is An Online Search A Background Check For FCRA?

Until recently, Georgia was one of the most difficult states in which to enforce a non-compete or other restrictive covenant agreement against employees who left their jobs, set up their own business or went to work for a competitor.  In 2009, the Georgia Legislature decide to change this by enacting legislation intended to clarify the law on non-compete agreements as well as other restrictive covenants (such as non-solicitation and non-disclosure provisions).

While the goal was clear, the legislation was not.  The law that was enacted (and the amendment to the Georgia Constitution that was needed to permit the new legislation) left confusion about when the new law would take effect. 
Continue Reading When Did The New Georgia Non-Compete Law Take Effect?