The enforceability of a noncompete agreement can vary greatly by State. When drafting a noncompete agreement or restrictive covenant, a critical decision will be which State’s law should apply in an enforcement dispute. Delaware employers have very favorable law on their side, as noncompete agreements are enforced here to a much greater extent than many others. Here’s an example.

noncompete agreement In May, the Ohio Supreme Court considered the enforceability of a non-compete agreement by a successor of the original contracting employer. In other words, can a non-compete agreement be enforced after the original employer is acquired in a sale or merger. In Acordia of Ohio v. Fishel, four employees signed non-compete agreements with their employer. The agreements provided that the employees would not compete with the employer for two years following termination. The agreements did not contain language that would extend the prohibitions to the employer’s successors or assigns.

In 2001, the employer merged with Acordia of Ohio, LLC. Following the merger, only Acordia survived. The four employees continued to work for the new entity until August 2005, when, you guessed it, they went to work for a competitor. Within six months of their resignations, they’d managed to recruit 19 customers worth about $1 million to the competitor.

Teachers and social media. If you’re in the business of writing news stories about poor judgment, this is the gift that just keeps giving. If, however, you’re an educator, a school administrator, or a parent, this is a combination with potentially grave consequences. Here’s yet another shocking example of a teacher who seemingly lost all perspective when she posted about her students on her Facebook page.

teachers social mediaAs reported by the N.Y. Post, here are a sampling of the comments, Patricia Dawson, a “highly-regarded English teacher” posted:

  • she described one of her 11th-grade classes as “suicide-inducing;”

A post on the Harvard Business Review blog, titled, “Your Body Language Speaks For You In Meetings,” caught my eye immediately. Several years ago, I brought this very issue to the attention of one of our senior paralegals. The paralegal was a critical player on our team–well respected by everyone and for good reason. During meetings, she had a place at the table equal to the most senior partner present. If she doubted a particular strategy, you could bet that we’d go a different direction.

Being the oddball that I am, I was often the one offering an out-of-the-box idea. I held the paralegal in the highest regard, so it really hurt when she was disapproving or skeptical of my ideas. Finally, I decided to deal with the issue head on. Leaving the conference room after a meeting one day, I asked her why she was always so critical of my ideas.

She looked at me, shocked, “Huh?” I looked back, equally shocked. She really had no idea what I was talking about. I took a deep breath and said, “You never like my ideas. You always look so critical when I offer a suggestion.”

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. “Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain,” wrote the viewer. “I leave you this note hoping that you’ll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle.”

The NLRB issued its decision today in Karl Knauz Motors, Inc. Readers will recall that the employee at Knauz’s BMW dealership filed a charge alleging that he had been unlawfully terminated for engaging in NLRA-protected activity when he was fired for comments he’d made on his Facebook page. The employee-salesman first posted critical comments about the dealership’s plans for a big sales event. Shortly thereafter, the employee posted pictures of a small vehicle accident involving a customer at the Range Rover dealership next door, which was also owned by Karl Knauz. The employer fired the salesman when a competitor reported the photographs.

An ALJ determined that the employee had engaged in protected concerted activity when he posted about the sales event. He was not engaged in protected activity when he posted the accident pictures because, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent and had no connection to any of the employees’ terms and conditions of employment.”

The Board’s decision, dated September 28 and released today, found that the termination did not violate the NLRA because the activity was not concerted or protected. This is a small victory for employers–but a victory, nonetheless. There has been a great deal of activity at the NLRB in the recent weeks and we can expect more in the weeks to come.

Last week was a busy one at the Governor’s office, where Governor Jerry Brown signed into law no less than three new laws with a pro-labor, pro-employee theme. The first two laws were a package deal, making California is the first State to enact legislation that prohibits employers and educators from requesting employees’ and students’ social-networking passwords. Gov. Brown announced that he’d signed the twin bills into law via a Twitter post on Thursday.

Seal of California.pngCalifornia is the second State after Delaware to prohibit universities and colleges from requiring students to turn over their passwords to their social-networking accounts. It is the third State, following Maryland and Illinois, to enact similar legislation providing these privacy protections to employees and applicants. And similar legislation is pending in several States. New Jersey’s version of the Facebook-privacy law was released by a Senate committee at the end of September.

The day after Gov. Brown signed the bills into law, he signed a third bill, which declared May to be Labor History Month. What, you ask, does this actually mean? Well, it means that school districts in the State will commemorate the month with educational exercises intended to teach students about the role of the labor movement in California and across the country.

Litigators love depositions. Well, at least this litigator does. There’s something about the challenge of navigating the subtle ebbs and flows of a personality you know only through the written word. But as much as I enjoy them, depositions are exhausting endeavors.

The mental jumping jacks are made all the more exhausting when the deponent is uncooperative or hostile. Of course we never expect the deponent to be particularly helpful but there is a middle ground. Nevertheless, when the plaintiff in an employment-discrimination suit refuses to cooperate, I have to wonder.

Specifically, I have to wonder about her counsel. Is he asleep at the wheel? Good plaintiffs’ lawyers know that, at trial, their client is the one with the burden of proof.

Attorneys from Young Conaway traveled to Dover today to present at the Annual Training Conference for the Delaware Public Employer Labor Relations Association (DELPELRA).

DELPELRA logo.jpgTim Snyder presented on the impact of health care reform on public employers. He also gave an overview of what public employers are doing to address the challenges of funding their pension plans.

Scott Holt provided practical tips on avoiding claims and litigation under the Fair Labor Standards Act (FLSA). Scott addressed misclassification of employees and failure to pay properly for breaks, training time, and travel time.

Delaware was the first State to legislate the privacy of students’ social-media passwords. California’s legislature was the first and, so far, the only State to pass a bill that protects students’ and employees’ social-networking passwords. That bill is awaiting the signature of California’s Governor. For more information about the California law, check out this great post at Seyfarth Shaw’s Trading Secrets blog in which the authors were nice enough to mention my previous post on the topic. (Even if they did call me by [gasp] my legal name, Margaret. It’s not their fault my parents couldn’t pick just one name and stick with it.)

But a state statute is not necessarily the only way to protect students’ free-speech and privacy rights in their online content. As reported by blawgger extraordinaire,Venkat Balasubrami, and, subsequently, by GigaOm.com, a federal judge in Minnesota recently held that a school violated a 12-year-old student’s First Amendment rights when it cooerced her into turning over her Facebook password so school administrators could investigate comments the girl was alleged to have made.

Although schools’ access to students’ social-media accounts may be the hot topic du jour but it’s not the first. For about as long as Facebook has been around, teachers have been getting into trouble for what the post on it. One of the most distasteful types of posts are those in which a teacher criticizes his or her students.

What is the value of a Facebook Like? A federal court in Virginia recently held that a Like does not have constitutional value, insofar as it is not speech for the purposes of the 1st Amendment. Many commentators disagree with that decision, which, not surprisingly, has since been appealed.

But what about the commercial value of a Facebook Like? Last month, a federal court in Michigan weighed in on this question. The case involved two nail-polish vendors, Lown Cos., LLC, and the unfortunately named Piggy Paint, LLC. Piggy Paint had 19,000 Likes on its Facebook page when it was taken down as a result of a trademark-infringement complaint that Lown filed with Facebook.

Piggy Paint was peeved.

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