Restrictive Covenants Enforceability from a Global Perspective 

Kara Maciel Leave a comment

shutterstock_243668662Recently, I had the opportunity to participate in a discussion with my fellow IR Global members to discuss the use and enforceability of restrictive covenants in employment contracts, and how different countries across the Globe view such covenants.

Every company has information, customer goodwill, and other valuable assets that are considered both integral and invaluable to its success. Limiting the use of this information by employees and protecting goodwill after the term of their employment contract can be vital to the protection of a market position. An accepted method of providing this protection is to include restrictive covenants in employment contracts, which are designed to prevent certain information being used by competitors, while providing for damages should those agreements be breached.

 For companies with operations in multiple locations, understanding this is of critical importance. It is also important to acknowledge that restrictive covenants will only be enforceable if they are deemed to be reasonable in terms of their scope and the fairness of the restrictions they place upon an employee.

​In this feature article, we discuss valuable insight into how these protections are applied across a range of jurisdictions, and assess the enforceability of contracts containing restrictive covenants, options in the event of a breach of covenant and best practices to avoid any potential problems before they occur.

​Conn Maciel Carey LLP is a proud member of IR Global in the Employment Law Group. IR Global is a multi-disciplinary professional services network that provides advice to companies and individuals across 155+ jurisdictions. Their Virtual Series publications bring together a number of their network’s members to discuss a different practice area-related topic. The participants share their expertise and offer a unique perspective from the jurisdiction they operate in.

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Workplace Harassment 101

Daniel C. Deacon Leave a comment

harassmentOne lesson companies of all sizes can learn from the sexual harassment claims that Uber is facing is that an employer needs to set clear restrictions on harassment and make a conscious effort to hold employees accountable to those workplace standards.  In particular, sexual harassment has been a significant issue in the workplace since men and women began working alongside each other.  However, it wasn’t until 1964, when Congress passed Title VII of the Civil Rights Act, that discrimination and harassment in the workplace was explicitly prohibited at the federal level.  Since then, several more anti-discrimination laws at both the state and federal level have been passed and countless judicial opinions denouncing unrestrained work culture and impermissible acts have been published.  So why is this still a hot button issue in the workplace over 50 years later?

Some may be of the opinion one complaint of workplace harassment is not a big deal because it is not reflective of the entire workforce or the values of the company generally.  While this may be true in some cases, it is important to investigate any such complaints because the root of the problem may be broader, such as Continue reading →

New California Regulations Expand Protections for Transgender Workers

Lindsay A. DiSalvo Leave a comment

By:  Andrew J. Sommer

The California Office of Administrative Law has approved new regulations, effective July 1, 2017, expanding protections for transgender workers under California’s Fair Employment and Housing Act (FEHA).  The FEHA prohibits workplace discrimination and harassment on the basis of gender identity or gender expression, among other protected classifications.  These regulations specifically address protections for transgender employees, including access to bathroom facilities, grooming and dress standards and recording the gender and name of employees.

All_gender_restroom_sign_San_Diego_airportRecognition of Transition Discrimination

While the FEHA addresses discrimination because of the gender identity or gender expression of an employee or applicant for employment, these new regulations make it unlawful to discriminate against an individual “who is transitioning or has transitioned or is perceived to be transitioning.”  Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify” including changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries or other medical procedures.

Recording of Gender and Name

These regulations require employers to abide by an employee’s request to be identified with a preferred gender, name, or pronoun.  An employer is permitted, however, to use an employee’s gender or legal name as indicated in a government-issued identification document, even if inconsistent with the employee’s preferred gender or name, as necessary to meet a legally-mandated obligation. Continue reading →

Join Us for our July Webinar on Joint-Employer, Independent Contractor, and Temporary Worker Issues

Jordan B. Schwartz Leave a comment

On Tuesday July 11, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Lindsay A. DiSalvo and OSHA attorney Eric J. Conn will be presenting a free webinar discussing issues relating to Joint and Multi-Employer, Independent Contractor, and Temporary Workers from both and Employment Law and OSHA perspective.

 

Employers’ perceptions about whether a legal employment relationship has been formed is not always shared by the Dept. of Labor. Although an employer may classify workers as independent contractors or engage them as temp workers through a staffing agency, that does not mean the DOL agrees. At the tail end of the Obama Administration, the DOL was vocal about its belief that most workers should be treated as employees, so employers will be accountable for the specific obligations of an employer-employee relationship. Additionally, employers may have certain HR or OSHA obligations and potential liabilities depending on their role at multi-employer worksites or in joint employer situations. The DOL has been cracking down on employee misclassification and division of responsibility among multiple employers.

Now, under the new Trump Administration, the DOL’s and OSHA’s views of the employment relationship are shifting. It is essential for employers to stay abreast of these issues, and carefully evaluate their employment relationships and functions at multi-employer workplaces.

During this webinar, participants will learn:

  • Current criteria used to evaluate the employer-employee relationship
  • Employers’ responsibilities on multi-employer worksites
  • How to clearly establish an independent contractor relationship
  • How to lawfully and effectively manage temporary workers

The webinar begins at 1:00 pm ET.  You can register for the webinar HERE.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series

Federal Court in Florida Rules that a Grocery Store Must Make its Website Accessible

Jordan B. Schwartz Leave a comment

Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities.  Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:  Website Accessiblity

  • While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
  • These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
  • No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
  • The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
  • Very few cases have reached a resolution on the merits.

As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years.  However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.

Continue reading →

Labor Unions Attempt to Use DOL and OSHA Enforcement as Organizing Tactic

Lindsay A. DiSalvo Leave a comment

By:  Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency that is the typical focal point is the National Labor Relations Board (“NLRB”), whose purpose is to protect the right of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.  However, unions have also engaged with or depended on the regulations of other federal agencies as a tactic to gain leverage in organizing campaigns.  There are a number of ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees or put pressure on employers to concede to union representation.

Taking OSHA as an example, an inspection or the threat of an inspection can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or of an OSHA inspection could put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with about 75% of OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading →

DOL Takes Significant Step Forward in Rescinding Persuader Rule

Lindsay A. DiSalvo Leave a comment

4This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

As we discussed in a prior post, the Persuader Rule imposed stricter reporting requirements on employers under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).  Specifically, the rule aimed to close a loophole in the reporting requirements, known as the “advice exemption,” which permitted employers to hire a consultant solely for advice without making a related report.  Thus, in the past, the LMRDA required an employer to file a report if it hired a consultant to directly persuade employees on organizing or bargaining issues, but did not mandate an employer file a report if the consultant hired only used “indirect” persuasion, such as advising employers on what to say to employees.  With the Persuader Rule, however, the DOL has essentially eliminated the advice exemption as it now requires employers and their labor relations consultants, including outside attorneys, to report any activities by the consultants that could be construed as an attempt to “persuade” employees regarding their rights to organize and bargain.  Continue reading →