for many workers, signing an employment contract with a confidentiality, non-disclosure, non-competition, or non-solicitation clause is a necessary part of accepting and keeping a job. What they don't anticipate, however, is that those provisions can be leveraged against them to restrict employees' rights to challenge unlawful practices and find other work, placing their livelihoods and future employment in jeopardy.
In apparent support of U.S. workers and economic realities, the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) recently issued guidelines for human resources professionals regarding anti-competitive hiring practices.
In a civil complaint filed June 8, 2016, the State of Illinois alleges that the sandwich chain Jimmy John's violated the state's Consumer Fraud and Deceptive Practices Act, 815 ILCS 50511, et seq., by requiring its store employees to sign aggressive non-compete agreements.
This May, the Obama Administration released a report analyzing the use of non-compete agreements in the American economy, potential issues arising from such use, and the effectiveness of various state responses. This analysis suggests that the misuse of non-competes at various occupational levels places an unnecessary burden on employees, consumers, and the economy.
President Obama has now signed into law the Defend Trade Secrets Act (DTSA), which takes effect immediately and represents a significant change in the way trade secret disputes are likely to be resolved in the United States. The law also extends new whistleblower protections to employees.
Last week, the U.S. women's national soccer team (USWNT), represented by five of its top players, filed a complaint of wage discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that U.S. Soccer players on the men's national team are paid as much as four times that of their female counterparts on the women's national team.
A New York trial court recently addressed the issue of adequate consideration for a non compete, finding that now-lapsed stock options were not adequate consideration, nor was continued employment where the agreement stated that the employer maintained the right to terminate the employees at will.
"Can my employer really enforce this non compete?" -- this a question routinely posed to employment lawyers. The answer depends on many factors. First and foremost, it depends on which state's law will be applied to the non compete. The answer to that question might seem obvious initially, since most employment agreements and separation agreements contain a choice-of-law clause designating a particular state's law to apply to disputes. One might think that if the agreement designates a state that generally enforces non competes, the non compete will be enforceable and the employee is out of luck. But the issue is not always that simple.
Employees, particularly those with access to sensitive company information, are typically required by their employers to maintain the confidentiality of such information. This requirement may be found in the employee handbook or may be contained in a restrictive covenant agreement, employment agreement, or severance agreement. Violating a confidentiality obligation can have serious consequences, including hefty monetary damages in a civil lawsuit. For one Goldman Sachs employee, however, the consequences were even more severe: Sergey Aleynikov was criminally prosecuted--twice--for taking confidential material with him when he resigned his position. His controversial second conviction was overturned earlier this week.
Arbitration is a common, employer imposed method for resolving employment conflicts without going to court. However, Outten & Golden Partner Wendi Lazar suggests that when an employee is forced by contract to arbitrate rather than sue, arbitration becomes a means for employers to suppress the rights their employees would be entitled to in court.