A physician signed a non-compete covenant, agreed to be enjoined if he breached, and allegedly did breach. But when his former employer asked a Providence, Rhode Island Superior Court judge to enter an injunction, the judge refused to prevent patients from being treated by a doctor of their own choosing, reports Paul E. Freehling of Seyfarth Shaw on the firm’s Trading Secrets blog.

The case involved a physician employed by a provider of health care services principally to nursing home residents. He signed an employment agreement with a non-competition covenant but several years late, he left the employer but continued treating its clients.  The company sued him and sought an order preventing him from competing with the provider.  The judge ruled, however, that the requested order would violate Rhode Island public policy.

Read the article.

An office of Economic Policy Report published in March 2016, entitled “Non-Compete Contracts: Economic Effects and Policy Implications,” estimates that 18% of all workers, or nearly 30 million people, are covered by non-compete agreements, reports Barry J. Waters on the website of Murtha Cullina. The Treasury Department is concerned that the prevalence of these agreements raises important questions about worker welfare, job mobility, business dynamics, and economic growth.

The article reports on the conclusions reached by the Treasury Department.

And it offers five take-aways for lawyers and employers.

Read the article.

BanbooHR will present a complimentary webinar designed to help companies’ human relations departments become more strategic to solve more imminent business problems.

The webinar will be Tuesday, April 19, beginning at 2 p.m. Eastern time.

On its website, the company says the webinar will begin with an economic perspective around the pressures business is putting on HR to upskill themselves, and then will go into a discussion of the strategies and principles that can be used to escape the operational handcuffs holding executives back from fulfilling this higher-value promise.

Topics will include:

• Learn what Strategic HR actually means
• Learn how to escape the operational and become strategic
• Learn how to gain relevance, influence and authority in your organization
• Learn immediate steps you can take to reinvent your department
• Learn to think and speak the language of business

Speakers will be Angela Watson, Enterprise Account Executiv of eFileCabinet, and Rusty Lindquist, VP of Strategic HR Insights of BambooHR.

Register for the webinar.

Lisa J. Banks, co-founding partner of Katz, Marshall & Banks, LLP, is co-author of the recently released book “Whistleblower Law: A Practitioner’s Guide.”

Available in eBook and print formats from its publisher, ALM’s Law Journal Press, the book is a practical, comprehensive guide to rapidly evolving whistleblower law and the numerous and often complex issues facing practitioners today from both sides of the whistleblower bar, the firm said in a release. Banks, along with Gibson, Dunn & Crutcher LLP Partner Jason Schwartz, have written a balanced view of the law useful to both whistleblower advocates and defense counsel alike.

The book’s topics include:

• Major legislation, including the False Claims Act of 1863, the Sarbanes Oxley Act of 2002, and The Dodd-Frank Act;

• Whistleblower protection for employees across a broad spectrum of industries, including the nuclear and environmental, consumer and investor, and transportation fields;

• Survey of state whistleblower laws in the 50 states and the District of Columbia;

• Whistleblower incentive programs, including those from the U.S. Securities and Exchange Commission (SEC), U.S. Commodity Futures Trading Commission (CFTC), and Internal Revenue Service;

• Unique challenges faced by whistleblowing attorneys and compliance officers; and

• Employer considerations, including preventative measures, investigations, disclosures, privilege and settlements.

In her review of the book, Danielle Brian, Executive Director of the Project on Government Oversight, said: “As a federal government watchdog, I often work with corporate and government insiders with first-hand knowledge of matters vital to the public interest. Whistleblowers are the first and best line of defense against waste, corruption, and other misconduct by the government and its contractors. This book is simply without equal as a comprehensive, non-biased guide to the current landscape of federal and state whistleblower law.”

Roel Campos, former Commissioner of the U.S. Securities and Exchange Commission and current Chair of the Securities Enforcement Practice at Hughes Hubbard & Reed added: “Lisa Banks and Jason Schwartz have given lawyers an excellent resource for navigating the growing maze of whistleblower laws that impact on nearly every practice area today. For attorneys involved in the heavily regulated financial markets, where whistleblowers are playing in increasing role, the authors not only equip practitioners with an in-depth knowledge of statutes and case law, but they also provide insightful practice tips for that can help both sides of the bar counsel their clients on the handling of whistleblower issues as they arise and unfold. This fresh look at whistleblower law and practice is a go-to resource for in-house counsel, compliance officers and whistleblowers alike.”

Arbitration agreements are evaluated on a case-by-case basis, writes Vanessa L. Goddard, of counsel with Steptoe & Johnson.

While many are still disfavored, they are more likely to be upheld if they are not unconscionable, she writes in an article posted on the firm’s website.

“The procedural component of the unconscionability analysis usually deals with the formation of the agreement itself. This includes the characteristics of the parties (e.g., age, literacy, sophistication), the manner and circumstances under which the contract was executed, and whether terms of the agreement are hidden or complex, among other things.  The substantive component looks at the unfairness of the agreement,” according to the article.

She provides some tips that make arbitration agreements more likely to be upheld by courts in the employment context.

Read the article.

In previous articles on employee separation agreements, Jonathan Orleans of Pullman & Comley, LLC discussed provisions that must – under federal law, specifically the Older Workers Benefit Protection Act – be included in employee separation agreements if the employee’s release of potential claims under the Age Discrimination in Employment Act is to be valid.

“And as I’ve pointed out previously, even if the employee is under 40 (and therefore isn’t protected by ADEA), it’s still wise to write the agreement in clear, understandable language and to have the employee confirm that he or she is entering into it knowingly and voluntarily,” he writes.

In a new article, he discusses some other provisions of employee separation agreements that his clients often ask about.

Read the article.

Tom Monahan, the CEO of CEB, a multi-national best practice insight and technology company recently wrote an article in Fortune Magazine titled “Revving Up Your Corporate RPMs” that notes that, despite advances in technology, decision-making and change in the business world has actually slowed down in the last decade, writes ContractRoom on its blog.

His article offers these statistics:

• Hiring a new employee now takes 63 days on average – up from 42 in 2010;
• The average time to deliver an office IT project increased by more than a month from 2010 to 2015. It’s now over 10 months from start to delivery; and
• The time required for one company to sell something to another has risen 22% in the past five years.

in the article, Monahan suggests the reasons for this increase in corporate decision-making.

Read the article.

A recently decided case from an Ohio Court of Appeals found that an employee handbook may create a contract as to the terms of employment, including an employee’s rate of pay and insurance coverage, absent a clear disclaimer to the contrary, according to an article by Michael C. Griffaton of Vorys, Sater, Seymour and Pease LLP.

“The Court explained that ’employment manuals may constitute binding contracts between employees and employers provided all necessary elements of an implied contract are present.’ Thus, an employee claiming the existence of an implied contract must prove offer, acceptance, consideration, and mutual assent,” he wrote.

Read the article.

An arbitration agreement is unenforceable where a party retains the right to make unilateral modifications effective upon notice to the other party, writes David Goodman of Greensfelder, Hemker & Gale, P.C.

“A starting point is to identify the transactional risks to be addressed in the contract and the entity’s needs that must be achieved, Goodman writes. “Often, drafters opt for a “belt and suspenders” approach, which is not only a terrible fashion faux pas but may result in an overreach nullifying the effectiveness of the risk management strategy.”

He discusses the example of the danger of how an attempt by an employer to get what it wanted in excess of what it needed is presented in Nelson v. Watch House Int’l, LLC, ___ F.3d ___ (5th Cir. March 2, 2016). Watch House Int’l is a March 2016 Fifth Circuit decision based on Texas law holding that the arbitration provision incorporated in a pre-employment agreement rested on illusory consideration.

Read the article.

By Sujata Ajmera, Partner,
Strasburger & Price

Sujata Ajmera

The H-1B visa allows employers to hire skilled foreign national professionals to work in the United States for up to six years. The beauty of this specific visa type is that it transcends all industries, so virtually any company seeking to hire a skilled, professional foreign national worker is eligible to file an H-1B petition for that individual. However, because of its ubiquity, it is also by far the most commonly sought after visa type.

H-1B visas are subject to an annual quota, and the filing window for any given fiscal year opens on April 1st and does not close until the cap has been reached. This is not-so-affectionately referred to as “H-1B cap season” among immigration practitioners. By law, there are 65,000 H-1B visas available annually, with an additional 20,000 set aside for individuals with U.S. Master’s degrees or higher. 85,000 visas may sound like a lot, however, when you consider that last year alone almost 233,000 H-1B visa petitions were filed in the first week of April, it becomes clear that timing is everything.

A late filing will result in a rejected petition, which means that the company must wait a full year before becoming eligible to submit a new petition. The time to start preparing is now.

Even if a company files their H-1B petition on April 1st, if the government receives an excess of petitions, which is likely to happen again this year, they conduct a random lottery, making it pure chance whether or not a company’s petition is selected or rejected. The uncertainty can be daunting, however for many employers, this is their only option to retain foreign talent; and their business success often depends on being able to hire such skilled workers.

With Austin’s robust technology, semiconductor, manufacturing, and gaming industries, there are many companies that will have a need to participate in the H-1B visa program this year. If you have not yet reached out to an immigration attorney, now is the time to get the ball rolling to ensure a timely filing and fair shot at receiving a visa for your valued foreign national employees. Most attorneys will tell you that they would like at least 2 weeks to get a filing together – though they can sometimes be prepared in slightly faster than this. The clock is ticking…

In a recent case out of California, Yeotis v. Warner Pacific Insurance Services Inc., No. B245770, the agreement in question was found to be unconscionable in places, but that didn’t doom the arbitration provision contained within it, writes Stacey Lantagne in ContractsProf Blog.

The court concluded that the contract was an adhesion contract, because the plaintiff was required to sign it in order to keep her job. There was, therefore, some procedural unconscionability attached to the formation of the contract,” she explains. “Additionally, there was some substantive unconscionability in the contract’s provisions that gave the court pause.”

Read the article.

Opening arguments kicked off Thursday in a long-awaited National Labor Relations Board case that could, for the first time ever, put McDonald’s on the hook for labor violations committed by the company’s franchised restaurants, reports International Business Times.

The case could determine whether McDonald’s is a so-called joint employer of workers at its franchisees, the independently-owned businesses that make up 90 percent of the company’s roughly 13,000 stores in the U.S and employ the vast majority of its 420,000 workers, explains reporter Cole Stangler.

“In addition to making the company more liable for labor violations, a decision from the NLRB that McDonald’s is a joint employer would open the door for a union formed by workers at franchised stores to bring the parent company to the bargaining table,” according to the report. “Such a ruling could also set a precedent for other fast-food franchises, according to industry observers and legal experts.”

Read the article.

A proposed executive order could require certain government contractors to provide paid sick leave to certain employees at certain times, resulting to a new benefit for 437,000 employees who currently get no such benefit, and possibly augmenting the leave of about 400,000 more workers, according to U.S. Secretary of Labor Thomas Perez.

In a report written by the Federal Contractor Compliance Practice Group and Wage and Hour Practice Group of Paul Hastings LLP, contractors who disregard the new requirements beginning in 2017 can be subject to debarment, among other penalties, so it is important that contractors understand the proposed rules and plan to ensure compliance.

“Federal contractors certainly should examine their policies in light of the proposed regulations, but all employers operating in jurisdictions with paid sick leave laws should review their policies for compliance with state and local laws,” according to the article.

Read the article.

A New Jersey court recently used the so-called contract “disclaimer” language in an employer’s handbook to preclude the employer from enforcing a mandatory arbitration program contained in that same handbook, reports Kevin C. Donovan in a Wilson Elser client alert.

He writes that employers who wish to enforce alternate dispute resolution procedures without falling into the same trap should consider the ruling. But, he wrote, the decision appears contrary to federal policy, enforced by a series of U.S. Supreme Court decisions that strongly favor enforcement of arbitration agreements.

In New Jersey, as in most states, employment is presumed to be “at will,” meaning that either the employer or the employee can freely terminate the employment relationship without a reason (cause) to do so. Under certain circumstances, however, express promises contained in an employer handbook can result in contractually binding terms and conditions of employment.

“While [the ruling] is a New Jersey decision, rulings in other states have also limited an employer’s ability to enforce an arbitration agreement in employee handbooks under some circumstances,” Donovan wrote.

Read the article.

Practical Law will present a free 75-minute webinar on Wednesday, March 9, at 1 p.m. EST to discuss key employment laws, practices, and policies of particular concern for startups.

Startup founders focused on financing, developing, and marketing their business may not prioritize complying with the panoply of federal, state, and local employment laws, the company says in a release. However, as an early-stage startup grows and hires more staff, non-compliance with these laws can pose substantial legal risks. To avoid potentially devastating liability and reputational damage, startups must have a plan for identifying and managing employment and human resources-related issues.

Philip M. Berkowitz, a shareholder with Littler Mendelson P.C., and his colleague, Christine L. Hogan, will lead the discussion.

In this program, attendees will:
* Obtain an overview of key steps startups should take before hiring their first employees, and the ones they can’t afford not to take.
* Review best practices for documenting a startup’s relationship with its founders and employees.
* Learn how startups can avoid common employment law pitfalls, including employee misclassification, noncompliance with minimum wage and overtime regulations, and more.
* Explore critical workplace policies and compliance areas.

Presenters will be:
* Philip M. Berkowitz, Shareholder, Littler Mendelson P.C.
* Christine L. Hogan, Associate, Littler Mendelson P.C.
* Barbara Harris, Senior Legal Editor, Labor & Employment Service, Practical Law
* Joe Green, Senior Legal Editor, Capital Markets & Corporate Governance Service, Practical Law

Check the registration page for CLE availability.

Register for the webinar.

Shawn E. Lampron, a partner with Fenwick & West LLP, and her colleague, Marshall Mort, will discuss the types of equity awards commonly used by early-stage startups and highlight key reasons why certain types of awards are used at various stages of a startup’s development when they lead a Practical Law free 75-minute webinar.

The webinar will be Wednesday, March 2, 2016, beginning at 1 p.m. EST.

Equity compensation can be particularly useful to a startup company, which may not have the cash necessary to adequately attract, retain, and motivate employees with market-rate salaries. In certain industries, it is standard practice for a startup to include equity as a part of every employee’s compensation package. To make the best use of an equity compensation program, a startup must understand the legal implications, tax consequences, and accounting treatment of granting each type of equity award.

CLE credit is available for: Arizona, California, Colorado, Georgia, Hawaii, Illinois, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Washington, Wisconsin. CLE credit is being sought for: Indiana, Minnesota, North Carolina, Oregon, Tennessee, Texas, Virginia. CLE can be self-applied for in: Florida.

In this program, attendees will:
Obtain an overview of the types of equity compensation startups commonly grant.
Gain an understanding of the basic characteristics, Section 409A and other federal tax consequences, accounting treatment, and advantages and disadvantages of these types of awards.

Explore other issues a startup and its counsel should consider when granting equity compensation, including the scope of an equity compensation program and appropriate vesting conditions and valuation methods.
A short Q&A session will follow.

Presenters:
Shawn E. Lampron, Partner, Fenwick & West LLP
Marshall Mort, Associate, Fenwick & West LLP
Amy Adams, Senior Legal Editor, Employee Benefits & Executive Compensation Service, Practical Law
Joe Green, Senior Legal Editor, Capital Markets & Corporate Governance Service, Practical Law

Register for the webinar.

The 6th U.S.  Circuit Court of Appeals has issued a sweeping decision that confirms that “ordinary principles of contract law” rarely will require a company to freeze outdated lifetime health coverage benefits in place, write Nancy G. Ross and Brian D. Netter, partners in Mayer Brown.

“Until recently, courts had a practice of interpreting benefits arrangements in collective-bargaining agreements (‘CBAs’) to ensure lifetime coverage—often defying the company’s expectations in the process,” they write. “But the legal environment has changed. Now is the time for companies to press ahead in reducing legacy costs on their balance sheets.”

They discuss the case of Gallo v. Moen Inc., in which a class of retirees who had worked at a shuttered Ohio factory alleged that they had been promised lifetime health benefits.

Read the article.

Many companies in the technology industry pay workers as “independent contractors” or “1099 workers,” write Mark J. Neuberger and Larry S. Perlman of Foley & Lardner in an article posted by The National Law Review. In theory, classifying individuals as independent contractors rather than employees can bestow significant economic benefits on a company. This option may be very attractive to a start-up who may be short on cash to pay salaries and fringe benefits.

“When independent contractors do the work, your company is not responsible for tax withholdings, is not responsible for workers’ compensation or unemployment insurance, and does not need to pay minimum wage or overtime,” they explain. “That’s the good news. However, when not done correctly, independent contractor classification is fraught with risk and lots of potential legal liability.”

Read the article.

Akerman LLP, a top 100 U.S. law firm, has  announced Eric Gordon has assumed the role of Labor & Employment Practice Group Chair.

“Eric is an excellent labor and employment lawyer with a tremendous capacity for leadership and client service,” said Akerman Chairman and CEO Andrew Smulian. “The very personal attention Eric devotes to his colleagues and client relationships reflect the values of our firm. We look forward to the continued growth and success of Akerman‘s Labor and Employment Practice Group under his able direction.”

In a release, the firm said Gordon will work to grow the national practice group while overseeing the delivery of labor and employment services to Akerman clients. He also will continue to practice law, representing employers in labor and employment matters and in many key sectors such as telecommunications, hospitality, healthcare, retail, and financial services. He is a past president of the Human Resource Association of Palm Beach County and will serve as president of the South Palm Beach County Bar Association in 2017-2018. Prior to leading Akerman’s Labor & Employment Practice Group, Gordon served as the office managing partner of Akerman’s Palm Beach County offices.

Gordon succeeds James Bramnick, who will continue representing management in labor and employment matters. He also will work in the labor and employment practice through his role as a chair of Lex Mundi’s Global Labor and Employment Practice Group, the world’s largest law firm network.

An article by Dennis Crouch in the Patentlyo.com blog looks at the TriReme v. AngioScore federal circuit court ruling about the ownership of potential patent rights, which the U.S. Supreme Court has repeatedly found initially vest with the inventor(s).

“Corporations must be getting somewhat annoyed with the antics of these pesky inventors,” Crouch writes. “TriReme v. AngioScore centers on an inventorship dispute involving Dr. Chaim Lotan who was previously a paid consultant with AngioScore but who later sold his rights to a competitor TriReme. In the lawsuit, TriReme sued for correction-of-inventorship of three AngioScore patents that do not currently list Lotan as an inventor.”

“So far in our law, the set of potential ‘inventors’ is limited to human persons (not corporate persons or machines or macaques). The initial right may, however, be transferred to through an assignment agreement.” according to the article.

Read the article.