As of January 1, 2019, Illinois will have one of the most expansive employee expense reimbursement laws in the country. Governor Bruce Rauner recently signed off on an amendment to the Illinois Wage Payment and Collection Act, requiring employers to reimburse “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” 820 ILCS 115/9.5(a). Exceptions to this requirement include expenses or losses related to the employee’s own negligence, losses attributable to normal wear, and loses due to theft—unless the theft occurred as a result of the employer’s negligence. Read more ›
It is every L&E attorney’s dream: You are deposing a Title VII plaintiff and it’s starting to get late. One by one, the plaintiff’s allegations of discrimination start to lose their luster; the seams are beginning to show. Plaintiff is sweating now. Plaintiff’s attorney is sweating more. You decide to go for it: “Plaintiff, do you believe that your supervisor—the one who terminated you—was racist/sexist/xenophobic?” Plaintiff responds: “No.”
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Imagine this scenario: Your top sales representative is traveling for work. He has a briefcase with your company’s logo on it. He decides to stop at a restaurant at the airport before catching his flight. While at the restaurant, he makes several calls to update various people about how his sales meetings went and he identifies each client with whom he met. He shares a plethora of information in each call, including detailed pricing discussions, push-backs by the clients, and product concerns. He also announces that he chose to not disclose a critical piece of news regarding possible trade issues with another country. Of course, all of these discussions occur within an ear-shot of numerous people, including, unbeknownst to your sales representative, a competitor. Read more ›
Workplace violence is one of the most troubling issues keeping HR professionals and in-house counsel up at night – and with good reason. Just last week alone, there were three workplace shootings in a span of 24 hours. In 2018, workplace shootings have occurred coast to coast, in rural, suburban and urban settings. And, according to OSHA, approximately two million employees report being victims of workplace violence each year. Read more ›
Many employers go above and beyond any legal requirements in providing paid or unpaid leave benefits to employees to bond with their child. So what could be bad about that? Well, check your employee handbook. Do you have a maternity leave policy? Do you have a paid leave policy that provides greater benefits to moms than dads, or to primary caregivers over secondary caregivers? If so, beware. Read more ›
An obvious key to maintaining good employee relations is to keep employees satisfied with their work and their work environment. While it is, of course, impossible to keep all of your employees happy and satisfied at all times, it is important to consider the reasons behind employee dissatisfaction and the steps which can be taken to erase that dissatisfaction so that employees will not feel they must contact an outsider, such as a government agency or worker advocacy group, to represent them on the job. Most causes of employee dissatisfaction can be eliminated if they are only recognized and treated quickly. Read more ›
On September 4, 2018, the U.S. Department of Labor Wage and Hour Division rolled out “updated” FMLA compliance forms and, despite containing no substantive changes, if your company uses the model FMLA forms, these new forms should be utilized starting now. The forms for Notice of Eligibility, Designation, and Certifications for the various covered Serious Health Conditions are available at this link on the DOL’s website. You have the new FMLA forms if the “expires” date in the upper right-hand corner reads “8/31/2021.” Do not be distracted by the “revised” date at the bottom of the page; the 2015, 2013 and even 2009 dates simply reflect that the content of the FMLA forms has not changed in quite some time. Read more ›
San Antonio City Council approved a Paid Sick Leave Ordinance on Thursday, August 16, 2018, which allows workers to accrue up to 64 hours of paid sick leave each year. This law largely tracks the recent Austin sick pay ordinance, passed in February 2018. The highlights of the San Antonio legislation are:
- Under the ordinance, employers are required to grant employees one hour of paid sick leave for every 30 hours worked, subject to yearly caps. For employees with 15 or fewer employees, the cap would be six (6) days per year. For larger employers, the cap would be eight (8) days of paid sick time. Employees may use this leave for physical or mental illness, preventative care or to care for a family member. Paid sick time becomes available for an employee’s use as soon as it accrues.
- Most employers will have to comply with the Ordinance beginning August 1, 2019. Employers with five employees or fewer do not need to comply until August 2021.
- Employers who already provide more generous sick leave policies than those proscribed by the ordinance are not required to make any changes.
- The law only applies to persons who work within the city limits of San Antonio for at least 80 hours per calendar year.
The ordinance was passed outright after supporters gathered more than 144,000 signatures, which would have been enough to force an election by popular vote. Notwithstanding the recent passage of the ordinance in San Antonio, a state appellate court blocked the Austin ordinance from taking effect on Friday, August 17. The appeal was from a trial court decision in Austin which had allowed the ordinance to take effect. It is expected that a similar lawsuit to block the San Antonio ordinance will also be filed. State lawmakers have also promised to pass legislation in the 2019 session that would declare such statutes invalid and preempted by state law. This will be an important test of separation of powers between the more conservative state government and more liberal cities like Austin.
Protecting your trade secrets and proprietary information is a vital part of your business. Every company needs to have policies and agreements in place to prevent employees from stealing property, and wrongfully soliciting your employees and customers when they leave to work for a competitor. Equally important, you must ensure that newly hired employees understand their own obligations to past employers and do not take actions that may unwittingly expose your company to liability.
- When hiring a new employee (especially in management or sales), consider including language in the offer letter affirming that the employee has disclosed any restrictive covenants in effect from prior employers, and acknowledging that he/she will not bring any confidential documents, data, or information from previous employers to the company. Such language may protect the company from being sued if a new employee fails to disclose a restrictive covenant, or otherwise engages in a breach of duties owed to a prior employer.
- If you are considering hiring a group of employees from a competitor, negotiate with each one separately wherever possible. In many states, employees (especially managers) owe a duty of loyalty to their employer. Acting as a go between or actively soliciting for a competitor while still employed with the prior company could raise legal issues. If you are looking to hire a team or group, it is best to hire the point person first, then once aboard that person can set out to recruit the remaining employees to come to your company (assuming that employee has no contractual restrictions on solicitation).
- Develop a protocol for ensuring that high level departing employees do not download or otherwise misappropriate proprietary information. When notified of a resignation: (1) Conduct a review of work email for transmittal of information to personal email accounts; (2) Identify any suspicious use of removable USB devices; and (3) Conduct an exit interview that consists of asking the employee to affirm that all property has been returned, including all electronic devices and passwords.
- Handbook policies on confidentiality and the return of company property are appropriate, but a breach of a policy is not actionable, and does not entitle the company to injunctive relief (i.e. an order requiring compliance). Consider requiring a confidentiality agreement for any employees who have access to important company data or property that could be harmful if disclosed to a competitor, and you may want back if not returned.
- For key personnel, you may need more than a confidentiality agreement to protect the company’s interests. In those cases, consider the use of a non-compete and/or non-solicitation agreement (which can be coupled with the confidentiality portion into one document). A non-compete provision restricts the employee from working for a competitor for a certain period of time in a defined geographic area. Such covenants must be reasonable, and narrowly tailored to protect the client’s interests. A non-solicitation provision does not restrict the employee from working for a competitor, but restricts certain activities for that competitor, usually soliciting company customers or employees for a period of time. Like a non-compete provision, a non-solicitation covenant must be reasonable. For example, the restriction should only apply to customers with whom the employee actually had contact or access to confidential information, as opposed to a restriction from contacting all of the company’s customers.
Non-compete litigation is state specific and the laws can vary widely from state to state. For example, Texas allows reasonable restraints on competition, while California (and recently Massachusetts) outlaw such agreements. It is advisable to have any agreements reviewed for enforceability in the states where such agreements are likely to be enforced.
Many pollsters are predicting Congress could switch from Republican to Democratic control in November. It has been quite some time since we have seen any significant employment legislation from the Congress, but a newly invigorated Democrat Congress might get busy and start passing laws. A recent bill introduced by Senator Elizabeth Warren (D-MA) is a preview of what that legislation might look like next year.
Warren and fellow Democrat Senators Chris Murphy (CT) and Ron Wyden (OR) have introduced the “Workplace Mobility Act,” which would outlaw non-compete agreements. Specifically, the bill would require a posting advising employees that such agreements are unlawful, and provide for a private cause of action and fines against employers who enforce or threaten to enforce a restriction on competition. The law would allow agreements to protect trade secrets as defined under the U.S. Code, but is silent as to whether restrictions on soliciting customers or employees would be prohibited. The bill narrowly defines a non-compete agreement as one which limits an employee from performing similar work within a specific geographic area or for a specified period of time. The full text of the bill can be found here.