Noncompete agreements are becoming boilerplate in employment contracts, and for employees, there’s nothing good about them, writes Patrick Thibodeau in ComputerWorld. He writes that these agreements create enormous uncertainty about future job options and worry about launching a new business, and their use is spurring legislative fights in leading tech-industry states.

He refers to one recent survey, with more than 11,500 respondents, that was conducted by three law professors. That survey found that about one in five workers have signed noncompete agreements.The report also looks at legislation in several states that could address the use of the agreements.

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In a case of first impression, the Third U.S. Court of Appeals recently ruled that federal bankruptcy courts may extinguish a Chapter 11 employer’s obligations under an expired collective bargaining agreement pursuant to Section 1113 of the Bankruptcy Code where such relief is necessary to permit reorganization, reports Buchanan Ingersoll & Rooney PC.

The case is In re: Trump Entertainment Resorts, 2016 WL 191926 (3d Cir. 2016).

“The Trump Entertainment case is significant for employers in reorganization, because it eliminates the need for union negotiations to reach an actual impasse before new terms can be implemented and, perhaps more importantly, it avoids the possibility that the NLRB could file a claim during the bankruptcy proceeding that would overturn a change in the employees’ terms and conditions of employment,” the firm writes.

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A federal jury in New Hampshire ordered Wal-Mart Stores Inc. to pay $31.22 million to a pharmacist who claimed she was fired because of her gender and in retaliation for complaining about safety conditions, Reuters reports.

Maureen McPadden claimed that Wal-Mart used her loss of a pharmacy key as a pretext for firing her in November 2012, when she was 47, after more than 13 years at the retailer.

“McPadden said she was fired in retaliation for her raising concerns that customers at the Wal-Mart store in Seabrook, New Hampshire, where she worked were getting prescriptions filled improperly because of inadequate staff training,” Reuters reports.

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As National Slavery and Human Trafficking Prevention Month, January 2016 offers the opportunity for federal contractors to reflect on the significant regulatory changes to the Federal Acquisition Regulation (FAR) that occurred in 2015 as part of the fight to end human trafficking in federal contracts, according to an article published by Venable LLP.

“For instance, contractors should take this opportunity to evaluate the effectiveness of the internal mechanisms established to comply with the new regulations. Contractors should pay particular importance to the effectiveness of their policies because noncompliance can lead to criminal, civil, and/or administrative consequences, as well as the declination to exercise options, contract termination, suspension of contract payments, and/or loss of award fee,” the article says.

Authors of the article are Paul A. Debolt, Dismas Locaria, Melanie Jones Totman and Michael T. Francel.

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Starting April 1, 2016, the U.S. Citizenship and Immigration Services will begin accepting H-1B visa petition filings – subject to the annual cap – for the next fiscal year, which begins Oct. 1, 2016, reports Constangy, Brooks, Smith & Prophete, LLP on its website.

The H-1B visa program allows U.S. employers to employ foreign workers temporarily in specialty occupations.

“To maximize client chances that their applications will be picked in this year’s anticipated lottery, we strongly recommend that H-1B visa petitions that are subject to the cap be filed as close to April 1, 2016, as possible,” the firm advises.

The article lists exceptions to the H-1B cap and alternatives to the H-1B.

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There are few reasons a court will treat a contract it as if it never existed at all, and those limited reasons center almost exclusively on a widely pervasive misdeed that is difficult to detect, such as resume fraud, writes Jennifer B. Rubin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

“Resume fraud is not, of course, limited to educational credentials,” she adds. “Title and salary inflation abound as well as falsified job experience.  Setting aside the moral discussion, the question is whether fraudulent credentials provide a basis for annulling an employment contract.”

She explains that the key to having a court grant an annulment and permitting the employer to avoid any contractual promises made to the employee based on the fabricated credentials is that the criteria at issue be material to the employer.

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Winston & Strawn has compiled a list of more than 20 major news developments involving contract settlements and ongoing contract negotiation during the final month of 2015.

The list is published on Lexology.com.

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A judge has voided the remaining $5 million of a $7.1-million jury award to a former Los Angeles Times sports columnist, ruling that he was not entitled to any damages on his claims that the newspaper discriminated against him because of his age and a disability, the Times reports.

The ruling nullifies the jury’s findings on key issues in a six-week trial, including whether Simers was forced out or quit his job after he was disciplined for not fully disclosing a conflict of interest, as his editors contended.

“On Monday, MacLaughlin ruled that there was insufficient evidence to support Simers’ claim of constructive termination, namely that the newspaper had created or permitted intolerable working conditions,” the Times reports. “Instead, the judge ruled, Simers had quit his $234,000-a-year job of his own accord.”

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A recent case from the Massachusetts Superior Court presents a stark reminder that whether conduct is viewed as a “mere breach” or part of a deceptive or unfair course of conduct can be in the eye of the beholder, writes Shep Davidson in The In-House Advisor blog, published by Burns & Levinson LLP.

“In American Translation Partners, Inc. v. Lahey Clinic Hospital, Inc., ATP entered into a three-year contract with Lahey to provide interpreters to assist Lahey’s medical professionals in their interactions with non-English speaking patients,” he writes. The contract stated that Lahey would not hire interpreters who had worked for ATP within the past 24 months. ATP later sued, claiming Lahey had breached that rule.

The Superior Court wrote:

“Did Lahey intentionally breach the contract and did it do so to either punish ATP or to gain a financial benefit? Persuasive evidence will have to be offered that Lahey knew that it was likely breaching the Services Agreement but decided to do so anyway either as a lever in its ongoing contract negotiations with ATP or to simply reap unfair benefits. On this record, summary judgment in favor of Lahey must be denied.”

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The enforceability of a confidentiality covenant in an employment agreement without time or geographical limitations may turn, at least in part, on how the information that may not be disclosed is defined, writes Paul E. Freehling in Seyfarth Shaw‘s Trading Secrets blog.

He describes a case involving a salesman for a medical device manufacturer, Orthofix, Inc. v. Hunter. The salesman signed a confidentiality covenant at the time he was hired, but years later he resigned and went to work for a competitor. The former employer sued him, but, because the covenant had neither temporal nor geographic limitations, the trial court invalidated the covenant and dismissed the breach of contract claim.  The appellate court reversed, holding that no such limits are required for a confidentiality agreement.

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A recent summary order from the United States Court of Appeals for the Second Circuit – which exercises federal appellate jurisdiction over New York, Connecticut and Vermont — serves as a reminder that an employer’s reliance upon its employee handbook can also prove its undoing, writes Michael McKeon of Pullman & Comley in an article published on JDSupra.com.

“In Langenkamp v. Olson, the Second Circuit reversed the federal trial court’s dismissal of a breach-of-contract claim brought by a non-tenured faculty member of New York University. The appellate court held that by expressly incorporating the Faculty Handbook into its offer of employment, NYU had transformed its provisions into contractual terms,” McKeon writes.

His article explains that it is critical that employers use care when drafting and referencing such handbooks.

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As demonstrated by two recent cases, the trends of delegating arbitrability questions to the arbitrator, and precluding parties from contractually modifying appellate rights, are here to stay, writes Timothy J. Abeska of Barnes & Thornburg in an article published by the National Law Review.

In Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015), a dispute in an employment agreement, Brennan sued his employer, Opus Bank, claiming he was entitled to terminate his employment for “Good Reason” and collect a severance benefit. The bank treated Brennan’s termination as a voluntary resignation which did not trigger an entitlement to severance.

The other case was Atlanta Flooring Design Centers, Inc. v. R.G. Williams Construction, Inc., 333 Ga. App. 528, 773 S.E.2d 868 (Ga. Ct. App. 2015).

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D.C. Toedt III, an attorney and adjunct professor at the University of Houston Law Cen­ter, has published an article that he calls “a useful teaching case for people drafting (i) merger-and-acquisition agreements, and (ii) related employment agreements, especially those being offered to employees of an acquired company.”

The article is on the On Contracts website.

The case is Cardoni v. Prosperity Bank, No. 14-20682 (5th Cir. Oct. 29, 2015), involving the acquisition of an Oklahoma bank by a Texas bank.

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A contract between an executive and an employer does not always have to be in writing, writes Jason M. Knott of Zuckerman Spaeder in an article published on Lexology.com.

“Sometimes, employees can enforce oral promises,” he writes. “Agreements can also be implied based on the parties’ conduct, even when no one made a promise, either in writing or orally.”

He discusses a ruling in a Third U.S. Court of Appeals case, Steudtner v. Duane Reade, Inc., to shows that contracts that aren’t in writing can be much harder to enforce.

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Employers generally embrace a policy of utilizing at-will employment as often as possible, where employers and employees can end their relationship with each other at any time and for any (legal) reason, writes F. Kytle Frye III of Fisher & Phillips LLP in an article posted on JDSupra.com. Written employment contracts are usually reserved for select executives and a few professionals.

“Numerous states, often through judicial pronouncements, have recognized varying exceptions to the at-will employment concept, such as allowing employees to challenge their termination as a violation of public policy,” he writes.

“The 8th Circuit Court of Appeals recently published a decision which sharply limits the application of the public policy exception. Interestingly, this limitation does not apply to at-will employees, but to employees with employment contracts. Somewhat ominously, the decision does not extend to all such contracts, creating an air of uncertainty for any healthcare business with employment contractual situations.”

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A Houston federal jury has returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation.

Read more about the case.

A Houston federal jury this week returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African-Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation. Their lawsuit alleged that non-African-Americans received raises and promotions that were denied to the plaintiffs, in addition to claiming that racial slurs were frequently used in the workplace. However, the jury found that NOV had not violated the rights of the plaintiffs, seven former NOV employees and one current NOV employee.

NOV’s trial team was led by special trial counsel John Zavitsanos of Houston’s Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA.  He offered evidence that showed there were several non-discriminatory reasons some of the workers did not receive promotions, were not asked to return to their jobs after taking unauthorized leave or were fired for cause.

“NOV always has promoted a diverse workplace where discrimination isn’t tolerated,” says Zavitsanos. “This was nothing more than an attempt by a discrimination law firm to pull out a playbook that has worked in other cases in hopes of cashing in.”

Also representing NOV along with Zavitsanos were attorneys Monique Gougisha Doucette and Christopher E. Moore of Ogletree, Deakins, Nash, Smoak & Stewart’s New Orleans office. Assisting on the case was law school graduate Nathan Campbell, who is not yet licensed to practice law.

The plaintiffs in Vital, et al. v. National Oilwell Varco, No. 4:12-cv-01357, included former NOV employees Junious Vital, DeWarren Bellard, Damon Darby, Herbert Heard, Edward Jiles, Jerome Johnson, David Lane and current employee Billy Rose.

An article on Holland & Hart’s Health Law Blog provides a 40-point checklist that can be used when preparing or reviewing contracts involving the work of physicians.

Kim Stanger, Pia Dean and Bill Mercer wrote the article.

Topics covered include regulatory compliance, written agreement, nature of relationship, services, schedule, location, independence, intellectual property, use of information, outside services, qualifications, representations and warranties, performance standards, medical records, employer obligations, compensation, benefits, exempt status, referrals, assignment of fees, liability insurance, workers compensation insurance, indemnification, terms, termination, post-termination obligations, confidentiality, noncompetition, nonsolicitation, penalties for violation, notice, assignment, governing law and venue, alternative dispute resolution, entire agreement, meaningful use assignment, construction, no third-party beneficiaries, and survival of terms.

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The Employment Law Alliance will present a complimentary webinar titled Webinar: Navigating New Legal Developments on Same-Sex Marriage, Transgender Rights and Pregnancy Discrimination: What Employers Need to Know.” The intended audience is in-house counsel, human resource professionals, and corporate executives and business owners.

The 90-minute webinar will be Thursday, Sept. 17, beginning at 3 p.m. Eastern time.

Topics will include:

• The transitioning legal landscape of transgender rights in the workplace
• Practical tips for accommodating transgender employees
• Key issues facing employers regarding same-sex marriage and employment
• The most recent developments in the law regarding pregnancy discrimination  and best practices for the treatment of pregnant workers

Register for the webinar.

A federal appellate court has denied Google’s breach of contract claim relating to assignment of the invention of an employee of another company, reports Dennis Crouch in the patent law blog Patentlyo.

An employee of a non-profit company developed a personalized information service – the subject of the patent that he filed – as an outside project. Later he sued Google for alleged patent infringement. Google contacted the developer’s employer and obtained a quitclaim deed over “any rights” in the patent held by company. Then Google argued in court that the developer had breached his employment agreement by failing to assign rights to the patents to his employer.

The alleged breach of contract was in the 1990s, so the statute of limitations came into play. But the site of the suit, Delaware, has a “discovery rule” that tolls any statute of limitations for the period in which an injury is “inherently unknowable.” The district court and the Federal Circuit found in favor of the developer, Crouch reports.

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