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Our Oak Brook covenant not to compete attorneys were interested to see a major non-compete lawsuit happening right here in Chicago. FierceWireless.com reported Jan. 19 that wireless telephone giant Motorola sued former executive David Hartsfield in federal court, claiming he will inevitably disclose Motorola’s confidential business information if he is allowed to take a new job at Finnish wireless phone company Nokia. Motorola is seeking a restraining order to prevent Hartsfield from taking the job.

Hartsfield resigned in December from a job developing CDMA technology at Motorola to take the position of vice president of CDMA at Nokia. In its lawsuit, Motorola claims that the non-disclosure agreement in Hartsfield’s employment contract will be violated if he takes the job. In particular, Motorola claims that it needs to protect product and pricing strategies. Hartsfield has filed a motion to dismiss the suit, arguing that it unreasonably interferes with his ability to make a living, and that Motorola has not identified any wrongdoing on his part. He also plans to argue that the non-disclosure agreements common in the wireless industry are not legitimate. Motorola has aggressively pursued non-compete and non-disclosure lawsuits in the past, including a 2008 non-compete lawsuit against an executive who left for Apple’s iPhone sales business. That case was dismissed in 2009.

DiTommaso-Lubin is not involved in this case. However, our Northbrook, Evanston, Waukegan, Joliet, Lisle, Downers Grove, Wheaton, Naperville, Aurora, Elgin, and Chicago non-compete contract attorneys believe Hartsfield could build a strong defense, if his claims are true. Although the federal court has diversity jurisdiction, it must apply Illinois law, which requires it to identify a legitimate business interest behind non-disclosure and non-compete agreements. If there is none, the law says Motorola may not restrain the otherwise legal business activity of Hartsfield moving to a competitor. Hartsfield claims CDMA is an industry-wide standard, not a technology proprietary to Motorola. Similarly, at least some of Motorola’s pricing information must be public knowledge. That means the company may have an uphill battle proving that this knowledge, at least, is a trade secret worthy of protection.

As Chicago employee rights attorneys, we were interested to see what may have been the first unpaid overtime filing of 2010 in the U.S. District Court for the Northern District of Illinois. Harris v. Cheddar’s Casual Café, No. 20-cv-0045 (N.D. Ill.) was filed Jan. 5 by three former servers and bartenders who seek to certify a class of current and former employees denied overtime and tips by the Cheddar’s Casual Café chain of restaurants. Plaintiffs Donny Harris, Keith McKinstery and Shaniqua Bell allege that managers at a Cheddar’s in Boilingbrook, Ill shaved time off their timecards and required them to work off the clock in order to avoid paying overtime. They also allege that their tips were diverted to a tip pool that illegally included non-tipped workers.

The complaint in the case says plaintiffs, and other similarly situated workers, were required to clock in and out for their shifts using the chain’s computerized system. They allege that the restaurant, and manager Solomon Tristan, illegally manipulated the timesheets created by that system to remove hours. They also allege that they were encouraged to work before clocking in and after clocking out, further denying them overtime. Furthermore, the plaintiffs say, they were compelled to participate in a tip pool that included the restaurant’s “quality assurance” workers, who they say are not tipped employees. Under federal law, employers may not pay tipped employees less than minimum wage unless they are allowed to keep all their tips, or contribute only to a legal tip pool. Thus, the complaint said, Cheddar’s policies violate the Fair Labor Standards Act.

At Nationwide Consumer Rights, our Wheaton, Ill. overtime attorneys see cases like this frequently. Hourly employees such as waiters and bartenders are regular targets for employers who prefer not to pay all of the wages they owe, and even sometimes to skim their earned tips to pay other employees. This behavior relies on employees to stay quiet, either because they don’t know they have rights or because they’re afraid of punishment for speaking up. However, federal and state law is very clear employees must be compensated for all of their time at work, and paid time and a half for any time over 40 hours in a week. Failure to follow these basic requirements exposes companies to lawsuits seeking all of the back pay owed, attorney fees and any other costs incurred. In cases of egregious law-breaking, courts may also require employers to pay punitive damages -- money intended to penalize willful law-breaking.

Our Illinois overtime rights lawyers were interested to see a recent ruling on unpaid overtime from the Seventh U.S. Circuit Court of Appeals. In Musch v. Domtar Industries, No. 08-4305 (7th Cir. Nov. 25, 2009), Alan Musch and his colleagues were maintenance workers at two Wisconsin paper mills owned by Domtar Industries. In their lawsuit, they say their job routinely exposes them to dangerous chemicals, requiring them to put on special protective gear before shifts and to shower and change after. They are not paid for the time it takes to do those things, however. They sued for unpaid overtime pay for the showering and changing time, as well as for time spent shaving, a requirement under Domtar company policy.

After the case was filed, Domtar moved for summary judgment dismissing the case. It argued that company policy says workers should shower and change immediately after exposure to a hazardous chemical, even if that means the employee goes into overtime. Because it has that policy, the company argued, overtime compensation was inappropriate. The district court agreed and granted summary judgment for Domtar. After the court declined to reconsider, the plaintiffs appealed both rulings. They argued that the district court missed or ignored evidence showing that chemicals actually were on workers’ skin; that is, they do not shower because they merely think they might have the chemicals. Thus, changing and showering time is appropriate for overtime pay under the Fair Labor Standards Act.

In its analysis, the Seventh Circuit started by noting that the FLSA and Wisconsin law both require employers to pay for all of the work employees do. However, federal law makes a distinction between work and preliminary or postliminary activities. Changing and washing is ordinarily considered preliminary or postliminary, the court wrote, but may sometimes be considered part of the job if it’s “integral” and “indispensable” to the job. The plaintiffs argued evidence showed that they didn’t always realize there were chemicals on their skin until the end of shifts, meaning showering after shifts would be following the company’s stated policy.

The Seventh Circuit disagreed. The plaintiffs’ evidence showed that showers were sometimes necessary, it wrote, but not that the Domtar policy of showering after any exposure was insufficient. Furthermore, the court said, employees admitted to bringing work clothes home to wash them, suggesting that they don’t believe the chemical exposure is that serious. Finally, employees are free to seek overtime under the existing company policy when they are required to shower and change, the Seventh said. Because these are all “normal conditions” under the meaning of the FLSA, the post-shift changing and showering is postliminary activity, not an essential job requirement, the court wrote. Thus, it upheld the trial court’s orders.

If you believe your employer has been breaking the law by withholding your overtime pay, you should call the Chicago wage and hour lawyers at DiTommaso-Lubin. To learn more about your legal options and discuss your case, you can call us toll-free at 1-877-990-4990 or send us an email.