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The Modern Workplace

Posts in Contracts & Agreements.
The beginning of a new year is a good time for employers to consider reviewing and possibly revising any non-compete and confidentiality agreements in place for their workforce or to consider putting such agreements in place. Generally, courts look more favorably upon the enforcement of confidentiality agreements than on non-compete or non-solicitation restrictions and all are subject to state law, as discussed more below. It is also possible that the federal law landscape on non-compete agreements might change significantly under the new administration of President Biden
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The uptick in new state laws prohibiting non-competition agreements with low-wage (and in some cases, not-so-low-wage) workers has remained steady throughout 2020. Most recently, Virginia, Rhode Island and Washington have joined a growing contingent of states prohibiting non-competition agreements with workers who do not meet certain earnings thresholds. For many employers, the earnings thresholds may be higher than expected and the penalties for violations of the new laws may be harsher than expected. This post is intended to provide a brief summary of certain new earnings ...
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As we discussed in prior posts (MinnesotasNew Wage Theft Law: Are You Prepared? and Minneapolis Wants a Piece of the Wage Theft Pie), Minnesotas 2019 legislature passed expansive new wage theft protections for employees. Most of the new laws provisions became effective July 1. The new criminal penalties for intentional wage theft are effective August 1. While the new law contains numerous significant changes to wage-related notice and recordkeeping requirements, payment of commissions and bonuses is also affected and deserves an employers close attention to achieve compliance ...
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If you are an FMLA-covered employer or you conduct employment-related background checks, youll want to take note that federal agencies have issued updated forms that may need to be incorporated into your practices. In September 2018, the U.S. Department of Labor (DOL) issued new model Family and Medical Leave Act (FMLA) certification forms and, that same month, the federal Consumer Finance Protection Bureau (CFPB) updated its Summary of Rights form for use in conducting background checks falling under the federal Fair Credit Reporting Act (FCRA).



New Model FMLA Certification ...
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Non-competition and non-solicitation agreements can be useful tools for companies trying to protect their key client relationships and confidential information. Enforcing these agreements, however, can sometimes be difficult, given the laws general disfavor of them. A recent Minnesota Court of Appeals case illustrates how a thoughtfully drafted non-compete can protect a company in the event that a former key employee begins competing with his former company.


In Lapidus v. Lurie LLP, a former name partner of a well-known Minneapolis accounting firm was found to have solicited ...
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Last week, in Boswell v. Panera Bread Co., the Eighth Circuit Court of Appeals held that Panera Bread illegally imposed caps on amounts paid to managers under its bonus program. In order to recruit and retain managers, Panera had created a program under which managers were eligible to receive a one-time bonus to be paid five years after the managers signed at-will employment agreements containing the bonus program. In order to receive the bonus, the manager had to be employed as a manager at the time of payment.

However, after a downturn in profits, Panera decided to place a $100,000 cap on ...
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The White House has detailed a broad series of new administrative steps in response to an earlier Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs. The White House described these steps as consistent with the continuing effort of the administration to find ways to increase job growth and reduce income inequality across the country. Although the new administrative steps do not include new prohibitions and generally do not require immediate action, the steps do raise the possibility of near-term legislative and ...

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As we begin December and head into the end of another year, our thoughts often turn to giving.  But, unfortunately, it is also a time when employers should give some thought to taking e.g. the possible theft of confidential business information.  It is common for employees considering career changes, whether taking a job with a competing company or starting their own business, to make that move shortly after the start of a new year (oftentimes sticking around long enough to receive year-end bonuses).  And, an all too common first step to those career moves can include the gathering of ...
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The Minnesota Court of Appeals has made it a bit tougher to enforce certain non-competition agreements, but, with careful drafting, employers can safeguard themselves against the Court's ruling. In J.A.B., Inc. v. Naegle, 867 N.W.2d 254 (Minn. Ct. App. 2015), the Court of Appeals held that a two-year non-solicitation agreement that did not expressly recite the legal consideration for the agreement was unenforceable in light of Minnesota's statute of frauds, set forth at Minn. Stat. 513.01.

Under fundamental principles of contract law, a contract must be supported by ...

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Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan ...

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Some things should be kept private. This week, the blogosphere provided several anecdotal reminders of this principle for both employers and employees. As we noted in an earlier post, one former employee learned the hard way not to violate a settlement confidentiality provision when his settlement unraveled as a result of a Facebook post. You can also read on below to learn more about the potential future of employee privacy law. Also, check out the link below about when and how employers can access an employee's social media account used for business purposes. Finally, we have ...

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Confidentiality clauses are a standard provision in most agreements settling an employment dispute. Last week, a former preparatory school administrator learned the hard way that these provisions matter to employers and that violating a confidentiality clause can be costly.

An appeals court in Florida ruled last week that a Facebook post made by the former school administrators daughter violated the confidentiality clause in his settlement agreement with his old employer. As a result, the former administrator forfeited $80,000 of his settlement. 

The former ...

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In this era of hyper self-promotion and cyber networking, through the wonders of social media, former employees are commonly creating some of the most incriminating evidence establishing their violation of non-compete and non-solicitation agreements. When employees switch jobs, they now frequently broadcast that changed status to all of their contacts through social media platforms, such as LinkedIn and Facebook. Among those contacts, however, may be a significant number of customers or clients of their now former employer. If the employees previously signed ...

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Anything you say on Facebook can and often will be used against you in a court of law. Technology has not only changed the workplace; it has also changed employment lawsuits. We've provided a link below to an article discussing how data from smartphones and social media can take center stage in a workplace harassment lawsuit and methods for mitigating legal risks. You can also read on below about how electronic metadata drastically impacted a non-compete case. Speaking of technology having a drastic impact, there's also a link below to an app designed to help you fight for immigration ...
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Yahoo is front and center in tech news this week, but not because of its services. Last Friday, the company told its employees that as of June 1st, no one will be permitted to work from home. The internal memo cited quality and efficiency concerns related to telecommuting. The change has angered some employees and sparked criticism.
In other interesting news, today is Pope Benedict XVI's last day in office, and cardinals will soon meet in conclave to elect a new pope. Though technological advances such as Twitter and camera phones make secrecy a difficult goal to obtain, the Catholic ...
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This week saw the introduction of a bill in the Minnesota House of Representatives that would outlaw the enforcement of most noncompete agreements in Minnesota. Under the pending legislation, all noncompete agreements would become unenforceable, with just three exceptions. The exceptions provide for very limited enforcement of noncompetition agreements in particular circumstances: in connection with:  the sale of a business, in connection with the dissolution of a partnership, and in connection with the withdrawal of membership in a limited liability company. 
Although ...
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This week, there were a number of interesting developments in the world of employment labor law. A NLRB judge ruled that a union's Facebook page is not an extension of the picket line. The case involved striking workers' threatening comments on the union's Facebook page. The NLRB Acting General Counsel initiated the complaint against the union, arguing that the union, which did nothing to disavow the comments, should be held responsible for them, just like it would be if they were made out on the picket line. The NLRB judge disagreed and dismissed the complaint.

The other two ...

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Do you have employment or severance agreements (or any other deferred compensation plan) that require employees to sign a release, noncompetition or nonsolicitation agreement before post-termination payments are made? If so, you may have a problem, and you may only have until the end of 2012 to avoid potentially significant tax penalties.
Many employment severance agreements (and other agreements providing deferred compensation to employees) require employees to sign a release of claims against the employer before payments are made. Sometimes there is also a requirement that ...
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A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.

It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the ...

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In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...

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Employee use of social media tools, such as an actively managed professional profile on LinkedIn, can be quite beneficial to the business interests of an employer.  As with many work-related innovations, however, sometimes there can be too much of a good thing.  Social media tools can be vehicles for serious harm to employers.  In particular, the use of social media sites by employees can lead to disclosure of a company's confidential business information, and may also provide significant opportunities for unlawful competition by employees.  These very real threats to an employers ...
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