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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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28 May 2014 Nebraska Decision Reminds: Sometimes There Is No Substitute for a Noncompete

  Here is a very human version of a legal story. In short, an employee left her company (First Express), an Omaha company that sells crop insurance, and took a number of customers with her. At the end of the day, First Express did get some relief against its former employee because of the employee’s breach of a contract, but the Nebraska Supreme Court found that the former employer’s customer lists were not trade secrets. Why? The Court held that most of the information on…

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14 May 2014 Federal Trade Secrets Act: As Big As It Sounds? (And What About Noncompetes?)

  As many readers will be aware, Senators Coons and Hatch recently introduced the Defend Trade Secrets Act, which would create a federal trade secrets law allowing parties aggrieved by the misappropriation of trade secrets (such as former employers!) to bring private actions in federal court.  Right now, former employers seeking to address trade secret misappropriation are governed by state laws, which – in the case of 48 states, some version of the Uniform Trade Secrets Act.   So why the big news in various…

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21 Apr 2014 Yes, You Really Were Giving Up FMLA Rights When You Signed That Document and Accepted 13 Weeks Severance

  Granted that many workers are not sophisticated in legal matters and severance agreements are not always written in plain English, but it seems fairly intuitive that when an employer offers an employee the choice of 13 weeks severance or a performance improvement plan, and the employee takes the severance and signs the document, she is not going to be able to sue the company.  Kudos to the U.S. Court of Appeals for the 11th Circuit in striking a blow for that principle in Paylor v…

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14 Apr 2014 It’s Back: Proposal to Ban Massachusetts Noncompetes (and Related Economic Theories)

  I have written here before about efforts in Massachusetts to ban noncompetes, which seem to have been kicking around for years without any real change.  Last week, Massachusetts Governor Patrick announced that he is proposing legislation to largely ban noncompetes, as they are in California.  The theory behind this is that Massachusetts loses tech talent to California, where tech wizards can be employed usually with little concern about being bound by a noncompete when they change jobs, and that noncompetes stifle innovation.  It is common…

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09 Apr 2014 Ends and Means: Federal Appeals Judge Reflects on Attorney Fee Award Against EEOC

  The EEOC has been more aggressive in the last few years than at any time during my 25 years of practice. It seems a fair question whether its high publicity focus on things like social media and, what I think most plaintiffs’ employment lawyers would agree are routine, release agreements are the best use of its resources – compared, for example, to efficiently doing its less sexy day-to-day work of promptly processing the charges that are brought before it.   This recent post from the…

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06 Apr 2014 Employers, You All Have Secrets: New Report Might Help You Protect Them

    A couple weeks ago, I spoke to an HR group on developing a strategy for protecting valuable information in their organizations. I structured the talk around a series of questions, and the next step in the process could vary depending on the answer to the question. The first question was, “Does your company have info of any kind that, if a competitor obtained it, would give the competitor an unfair advantage?” If an attendee’s answer was “no,” the next step for that attendee…

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23 Mar 2014 Declining FMLA Leave Includes Your FMLA Lawsuit, Court Says

At least one court has held that an employee who declined FMLA leave and chose to use vacation leave instead cannot later invoke the protections of the law. This comes from the Ninth Circuit Court of Appeals, the federal appeals court for California and other far western states, so employers in other states should not rely on this decision but it is instructive. (And of course it is almost always advisable to consult with counsel before terminating an employee who is absent for her own…

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18 Mar 2014 Behind “Obnoxious” Headlines, A Good Noncompete Strategy Reminder

  We have written often on this blog, including here, about the importance of the difference in state laws on noncompete agreements to drafting and enforcement strategies. A New York case involving one such case recently went somewhat viral, probably because of the court’s use of the term “truly obnoxious” four times in the opinion to refer to the employer’s Florida choice of law clause.   Far be it from me to stand in the way of a good headline, but in context the court…

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10 Mar 2014 Illinois Case Reminds (Again): Document Rights and Responsibilities On Company Social Media Accounts

An Illinois employer faces potential liability for accessing an employee’s Facebook and Twitter accounts while the employee was on leave. There is no question the accounts related to the company’s business, and among other things directed traffic to the company website.There were various points of disagreement among the parties about the accounts, however, including:   The employer says it directed the employee to start the Twitter account in question. The employee denies that. The employee says company management had administrator status on the Facebook page in…

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24 Feb 2014 Witness Files: Catching Up On the Characters That We See Over and Over in Workplace Investigations

Last June I authored a blog post about a series of articles that I had started on the i-sight.com blog. The series highlights the various “characters” that employers and their lawyers seem to encounter repeatedly in workplace investigations. I am now up to eight composite witnesses types and counting, most recently focusing on the complainant who has a lawyer. This particular article provides the reader with some considerations to keep in mind in that scenario. A ninth article, which focuses on the employee who for the first time raises harassment or other workplace…

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