Archive for the ‘Employment Law’ Category
Are you going to get sued under your employment agreement?
I regularly look at employment agreements that contain non compete and non-dislcosure limitations/ Often, the circumstances are that an employee has left and the former employer needs to know what their rights are. Sometimes, I advise employees on their rights in regard to their former employer. I distilled a lot issues down into a few key points that employers consider when deciding whether to try to enforce an employment agreement non-compete or non disclosure provision:
1. Money. The financial resources available to the company.
2. Length of Employment. The length of time the employee has been with the company. The longer the relationship between the employee and company, the more likely the company is to believe the employee has valuable information that may hurt the company. There also may be more of an emotional attachment in a longer relationship which a company sometimes feels is violated by the employee’s simple act of changing jobs. Also factored into this category is whether the employer believes that the information the employee has could be damaging to the employer if disclosed.
3. Positive Results. How strongly the company feels about its’ chances of getting a positive result. There are times when violation of an employment agreement is so clear, the employer’s chances of winning a lawsuit or getting a favorable settlement are virtual “locks.” However, I have seen many murkier situations where litigation could be lengthy and expensive and this dissuades the employer from going to court.
4. Attitude. The attitudes of the Employer’s decision makers. Are the individuals who will decide whether to sue, settle or let it go, naturally aggressive or more conciliatory in nature?
5. Experiences. The previous experience (if any) the employer has had with enforcement of employment agreements. Positive experiences provide the confidence to go to court again while a negative experience usually leads to substantial trepidation.
Proper vs. Improper Employment Termination (how to fire)
Below is some very simple guidance on terminating employees, if you, as an employer, are going to have to do it. If you happen to catch an employment termination claim, your attorney will be really glad you did these things.
Proper Termination Improper Termination
| Follow policy and procedure | Firing without sufficient documentation |
| Gather and maintain proper documentation | Firing without following proper procedure |
| Do not delay once decision is made | Providing a positive reference for a terminated employee |
| Determine status of employee | Arguing with the employee during the termination meeting |
| Have at least one witness during termination meeting | |
| Provide written and dated termination notice; obtain employees signature on notice |
Worst piece of evidence in a sexual harassment case?
In working with employers and employees on sexual and racial harassment claims, I have seen some extroadinary stupid actions. Supervisors who joke about a female suboordinates body parts, a manager running around with panties on his head, a boss who forced female employees to have meetings at strip clubs the and insaneness of a male supervisor referring to a female employee’s pack of cigarettes in her shirt pocket on her chest as a “third tit” (That is a quote).
By far though the email exchange below between a a male supervisor and a female employee about to take medical leave is the worst:
Female Employee: Just reminding you I will be gone from tomorrow through the 14th, on medical leave. I know I will be missed J Hope I have a job when I come back!
Supervisor: You will have a job when you come back . . . it may be as my mistress, but you will have a job.
This exchange teaches two lessons:
- Don’t write anything you would be embarrassed for your wife, husband, mother to read.
- If you must write it, remember it could be read in court some day or even worse be published to the world through the Web.
This sexual harassment case settled on terms favorable to the employee.
Be careful in the shark-infested waters of employment references
While giving truthful employment references is not legally actionable, references, by nature, tend to be highly judgmental. The employer’s view of the truth may be different than the employee’s view of the truth. This is particularly true in the case of under-performing employees.
In the case of employment that has been involuntarily terminated [i.e., fired], it is a fair assumption that the employee will typically feel some ill will towards his or her former employer and may just be looking for an excuse to file a legal suit. Often employees who leave the service of a company voluntarily have done so because they were unhappy in the company or in their position. In any case, references given for former employees can create an opening for legal action if the employee does not feel he or she has been fairly represented by the former employer.
Some small business owners feel they can be less cautious when giving verbal references than they would be in the case of supplying a written one. Not true! Any type of reference can be legally actionable. While many courts are sympathetic to the need of employers to give references, others are not. Courts have been known to rule for an employee because a reference given, while good, was not good enough.
It is a safe policy to offer no references at all beyond confirming dates of employment, position held, and rate of pay earned. This may not seem right, but your responsibility is to keep your business running smoothly and out of court so that your current employees can enjoy a healthy working environment.
What does at-will employment mean?
It is prudent for employers and employees to know where they stand legally.
In Oklahoma, the “ terminable at-will employment doctrine” allows an employer to discharge an employee for good cause, for no cause, or even for morally wrong cause without being liable for a legal wrong.
It means your Oklahoma employer can terminate you at time, for any reason. It means you can terminate your employment at any time, for any reason. Each day of employment is a try out for the next.
Even if you are an “at-will” employee, your employer generally cannot terminate you because of your skin color, your gender, your national origin and some other protected status along those lines.
If you have an employment contract that provides for employment with business for a specific period of time, then you are not an “at-will” employee.
Non compete Agreements are still not OK in Oklahoma
I wrote a few months ago about how Oklahoma law prohibits non compete agreements for former employees and touch on exceptions here. Yesterday, the Oklahoma Court of Civil Appeals reiterated that any agreement which restricts a former employee’s ability to work in the same field as the former employer is void under Oklahoma law.
The case is Scanline Medical, L.L.C. v. Brooks. The restrictive agreement in question absolutely prohibited the former employee from “sell[ing] any medical device product competitive with any of the Spinal Concepts [or Orthovita] Products, or in any way [possessing] a financial interest . . . in any business engaged in the distribution, solicitation, promotion or sale of any medical device product competitive with any of the Spinal Concepts [or Orthovita] Products.”
By completely preventing the former employee from working in his “chosen profession” the noncompete agreement violated Oklahoma law and the Court would not enforce it. Competition is allowed but an employer can protects it confidential and proprietary information with the right agreements in place.
I work with employers and employees to address non compete agreement issues and put reasonable protections in place to protect both sides. Please feel free to contact me at sjr@shawnjroberts.com if you have any questions.
Two scenarios where a non compete agreement is enforceable
In an article from a few months ago, I wrote about how Oklahoma law categorically invalidates non compete agreements. Oklahoma has made a public policy decision that with a couple of exceptions employees will not be barred from competing. Below are the exceptions to the rule:
1. When you sell goodwill. When a business sells their interest in the business including the goodwill, Oklahoma law allows a non compete agreement between the seller and buyer. While “goodwill” is an intangible assets and often difficult to define, in Oklahoma it generally means the “custom or patronage of any established trade or business; the benefit or advantage of having established a business and secured its patronage by the public.”
2. Business Partners splitting up. A non compete agreement is also allowed when a business with multiple owners or partners dissolves. In anticipation of a dissolution of the partnership, the partners may agree that none of them will carry on a similar business within a specified county and any county or counties contiguous thereto, or a specified city or town or any part thereof.
If you have any questions about non compete agreements, please feel free to contact me anytime at sjr@shawnjroberts.com.
Follow Us!