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BT Currents - Hot Topics in Employment Law
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12 Sep 2017 California Dreaming: Court Upholds Restrictions in Employment Agreement, Bars Use of Confidential Information

  As most multi-state employers already know, California is inimical to employer-employee non-compete agreements; indeed, the state even has a statute saying as much. Consequently, many employers tend to surrender before imposing any restrictions on departing workers in California. But, there’s hope. A recent decision from the U.S. District Court for the Northern District of California (Fidelity Brokerage Services, LLC v. Brett Rocine, Case No. 17-cv-4993-PJH) provides some solace for businesses trying to fend off competition from faithless employees in the Golden State.   The…

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19 Jul 2017 Third Circuit Addresses Application of Inevitable Disclosure Doctrine

  For an employer seeking to protect its trade secrets, the inevitable disclosure doctrine – when recognized – provides a sound basis for obtaining injunctive relief. This doctrine typically applies when a former employee, with knowledge of the former employer’s confidential or trade secret information, accepts a similar role with a competitor. Oftentimes, such an employee cannot “unlearn” the information provided by the former employer and will inevitably use it to the former employer’s competitive disadvantage.  Utilisave, LLC v. Miele, 2015 WL 5458960 (Del. Ch….

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03 Apr 2017 Noncompetes Q&A: A Look at Ohio

    We write a lot on the Currents blog about noncompete agreements. The topic presents a wealth of material because of the critical differences between state laws and the importance of employers to be aware of developments even in states where they don’t do business, and the fact that typically several times a year there is a development in some state’s law, with Nevada and Pennsylvania being two examples in recent years where a state supreme court decision has attracted attention.   Yet I find that…

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31 Jan 2017 The Three Seats of Noncompetes: Mistakes We See When Employees Move

  We often write on Currents about developments in the area of noncompete law, primarily case law and statutory developments across the country in this highly state-specific area. This year will likely be no different – among other things, the seemingly annual ritual of Massachusetts noncompete legislation has begun anew. While the rules shift and evolve, when employers and employees find themselves in disputes over noncompetes, there are recurring themes or factors that might have been avoided.   This article I wrote reviews these factors, broken down…

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19 Sep 2016 Does New Illinois Law Signify A Third Frontier of Noncompete State-by-State Variations?

  Recently, Jennifer Cerven wrote on Currents about a new Illinois law that prohibits noncompete agreements for low wage workers, i.e. those making less than $13/hour. There has been heightened dialogue about such restrictions since the publicity surrounding the Jimmy John’s noncompete requirement for some of its sandwich makers. I have suggested here before that most courts I know would be discinlined to enforce a noncompete with such an employee anyway, though as one parent of a summer camp counselor appropriately pointed out to me after that post,…

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07 Sep 2016 Illinois Cracks Down on Noncompetes for Low-Wage Workers

  Should the teenage workers who make your deli sandwich (or bus tables or perform other routine entry-level work) be able to move from one job to another without running afoul of a noncompete? The court of public opinion thought so, as evidenced by the controversy that erupted over the Jimmy Johns sandwich chain’s much-publicized business plan that even low-level workers should be subjected to post-employment restrictions, as we reported here.   Now the Illinois General Assembly has stepped in with the new Illinois Freedom…

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25 Jul 2016 Nevada’s High Court Won’t Get Out Its Pencil To Save Overbroad Noncompete

  In the highly state-law specific world of noncompete agreements, it is always newsworthy when a state’s supreme court weighs in on one of the two key areas where state laws vary. Indeed, we typically only see one or two such decisions per year. Here, the Nevada Supreme Court has answered the question, what color pencil does it use when it finds a noncompete agreement is overly broad?   In Golden Road Motor Inn, Inc. v. Islam, the court found that a one-year, 150-mile noncompete imposed on…

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02 May 2016 Federal Trade Secrets Bill Passes Overwhelmingly in the House: What It Means to Employers

On April 27, the House voted 410-2 to approve the creation of a federal trade secrets law, the Defend Trade Secrets Act (DTSA). The DTSA has now passed both the House and Senate and it is expected that President Obama will approve this quickly to create a new federal private right of action for trade secret misappropriation under the Economic Espionage Act of 1996.   Currently, trade secret misappropriation has previously been purely a matter of state law with 48 of the 50 adopting some…

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29 Feb 2016 State Noncompete Statutes, Your Company, and the Economy: One Perspective

  We write a lot on Currents about noncompetes. Even if your company does not use them, you may find yourself hiring somebody who has signed one with a former employer, and as a Currents reader, you know that the rules about noncompetes vary widely from state to state and you need to have some awareness of how they vary before making decisions. For example, even if an Ohio noncompete specifies the application of Ohio law, if litigation is commenced in another state, the other state’s courts…

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15 Feb 2016 Massachusetts and the Impending Death of Noncompetes Part II: De Facto Enforcement of Noncompetes

  Last week I wrote about Massachusetts legislation to ban noncompetes. As I wrote, from our position of representing businesses, we do not have an inherent preference for or against noncompetes because there are business interests on either side of the issues (as the Massachusetts debate illustrates). Rather, our job is to guide clients through the changing and varied rules across the states about noncompetes.  However, I do feel that opponents of noncompetes often make statements about the prevalence of noncompetes, the decline of noncompetes,…

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