Articles Posted in Non-Compete Agreement / Covenant Not to Compete

Employers in New Jersey must review their current policies and practices to ensure compliance with a new statutory prohibition on the inclusion of non-disclosure provisions in employment contracts or settlements involving discrimination, harassment, or retaliation claims. The new law, signed by New Jersey governor, Phil Murphy, on March 18, 2019, and effective immediately, states that employers cannot insist that employees keep confidential the details of such claims or settlements. The law makes clear though that it should not be construed as prohibiting employers and employees from entering into non-compete agreements and confidentiality agreements relating to proprietary information, such as non-public trade secrets, business plans, or customer lists or information.

The law renders any provision in an employment contract that waives “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment … against public policy and unenforceable against a current or former employee who is a party to the contract or settlement.” The law also does not permit prospective waivers of any right or remedy under the New Jersey Law Against Discrimination, or any other state statute or case law. The new provisions, however, do not apply to collective bargaining agreements. Continue reading ›

As fewer physicians are forming their own practices, they are finding one potential disadvantage to hospital or physician group employment: non-compete agreements. Physician employment contracts, particularly for specialists, increasingly include non-compete agreements or non-solicitation agreements (sometimes referred to collectively as restrictive covenants). This can lead to expensive, protracted legal disputes when doctors attempt to leave one physician group for another or desire to form their own practices. Further, many patients lose contact with their doctors when they switch practices. In a recent survey of nearly 2,000 primary care doctors in 5 states, 45% of the physicians surveyed had covenants-not-to-compete or other restrictive covenants in their employment agreements.

As large health systems look for ways to remain profitable, many are turning to physician practices to expand specialty offerings and attract new patients (or obviate the need for patients to go to other hospitals or practice groups for different medical needs). From 2015 to 2016, hospitals acquired 5,000 physician practices and employed more than 14,000 physicians, according to a study conducted by the Physician Advocacy Institute. According to the study, between 2012 and 2016, hospital-owned physician practices doubled and there was a 63% increase in hospital-employed doctors. Nothing in recent health care trends indicates an end to this movement. Continue reading ›

Where an employee was free to take the knowledge he had accumulated over his nearly 30-year long career into his next job as a consultant, representing buyers of the products of his former employer.

Archer Daniels Midland is one of the largest manufacturers of corn-based sweeteners in the United States. In its most recent fiscal year, the sweeteners division of ADM realized a profit of $600 million. ADM sells its sweeteners to a few hundred buyers in the United States, including Sensory Effects, Inc. and PMP, Inc.

ADM categorizes buyers in one of two categories: toll contract or flat rate. Toll contract buyers contract to buy a fixed quantity of sweetener from ADM during a year, with the price fluctuating in response to the price of corn. Toll contracts may be entered into at any time of the year. Flat rate contracts can be entered into only during ADM’s annual contracting season, which lasts 30 to 60 days, beginning in the late summer. Under a flat rate agreement, the buyer agrees to pay a fixed price for a full year’s supply of sweetener.

Lane Sinele worked for ADM from January 1990 until his retirement in August 2018. At his retirement, Sinele was the manager of national accounts for ADM’s sweetener division. Sinele represented ADM, soliciting, procuring, and servicing buyers of sweeteners. Sinele handled the accounts for both Sensory Effects and PMP. As part of his employment, Sinele signed two non-disclosure agreements, though he did not sign either non-compete or non-solicitation agreements. During his career, Sinele had access to ADM’s Tableau system, which contained proprietary information about freight systems, factories, customer orders, manufacturing costs, and margins. Continue reading ›

Massachusetts’ new non-compete agreement statute, The Massachusetts Noncompetition Agreement Act, may provide the blueprint for states like Illinois to follow in codifying the requirements for enforceability of non-competition agreements. Unlike in Massachusetts, much of the current non-compete law in Illinois is not statutory but has been developed at common law by judges over the years in a multitude of judicial opinions. Massachusetts has taken a different approach by choosing to codify its requirements for an enforceable covenant-not-to-compete. In doing so, Massachusetts joins states such as Utah and Idaho who have also recently passed laws regulating non-compete agreements.

The new Massachusetts law went into effect in late 2018 and applies only to non-compete agreements (also known as agreements-not-to-compete or covenants not-to-compete) entered into after October 1, 2018. As a result, its full ramifications have not yet been realized. The new law is an effort to regulate non-compete agreements by limiting their enforceability and codifying express requirements for enforceability. The new law applies not only to agreements with employees but also to agreements with independent contractors. To be enforceable under the new law, a non-compete agreement must (1) be in writing; (2) be signed by the employer and the employee; and (3) expressly state that the employee has the right to consult with counsel prior to signing. In addition, the employer must provide a copy of the non-compete agreement to the employee or independent contractor at the earlier of a formal offer of employment or ten business days before the start of the employment. Finally, non-competes entered during employment must be supported by independent consideration beyond continued employment. Continue reading ›

Where dance academy and employee had an employment contract that specified non-compete provision lasting “not less than five years,” the provision meant five years under Illinois law, and the reasonableness of the restriction was a fact-based question requiring more evidence to determine.

In April 2017, Pam’s Academy of Dance/Forte Arts Center sued Callie Marik, a former employee, seeking monetary damages and injunctive relief. The complaint alleged breach of contract and violation of the Illinois Trade Secrets Act. Pam’s Academy alleged that Marik breached the parties’ non-disclosure and restrictive covenant agreement by opening a dance studio within 25 miles of Pam’s Academy and soliciting students and/or teachers from an improperly obtained customer list.

Marik moved to dismiss the complaint, arguing that all of Pam’s Academy’s claims were defective because the provisions of the contract were invalid and unenforceable under Illinois law, and the complaint failed to allege a plausible basis for the allegation that Marik misappropriated a customer list. After a hearing, the trial court struck paragraph 7 of the original agreement, which banned Marik from soliciting, interfering with, diverting, or otherwise communicating with any customers or employees of the academy for purposes of providing similar services as the academy. The court found that this restriction, having no time limitation, was overly broad. The court then certified two questions for interlocutory review seeking an answer as to whether employment-based restrictive covenants with time periods of not less than five years and not less than three years were enforceable under Illinois law, and whether, in the context of employment-based restrictive covenants, whether the terms “not less than five years” and “not less than three years” meant five and three years, respectively. The Illinois Appellate Court, Third District authorized the appeal. Continue reading ›

When non-compete agreements can and cannot be used?

One of outgoing attorney general Lisa Madigan’s final acts was to settle a lawsuit the Attorney General’s office had brought against one of the nation’s largest payday lenders Check Into Cash alleging that the lender’s use of non-compete agreements ran afoul of Illinois law.

Illinois is one of a growing number of states cracking down on the widespread, indiscriminate use of non-compete agreements, particularly with low-skill or low-wage employees. Many employers who use non-compete agreement do not use them for their intended purpose–to protect an employer’s proprietary and valuable information–but instead, use them to prevent employees from leaving and to reduce the available workforce for competitors. It is this practice many states are seeking to curb.

States are also targeting another group of employers: those who attempt to use non-competition agreements for their intended purpose but do so using overly broad, poorly worded agreements. Courts have grown increasingly hostile to such agreements, opting to throw out the entire agreements rather than reign in or rework them (sometimes called blue penciling).

Three things are certain in the area of non-compete agreements (also referred to as restrictive covenants): (1) the agreement must be narrowly tailored so that it protects the employer’s legitimate business interest but does not unnecessarily go beyond that; (2) a poorly worded non-compete agreement is worse than no agreement as it provides a false sense of security but will likely not be enforced by a court (a fact an employer will learn only after lengthy, costly litigation); and (3) a non-compete agreement is not the type of agreement you can set and forget.

Non-compete law, perhaps more than any other area of law, is constantly changing and evolving. A do-it-yourself non-compete agreement or one drafted years ago likely will not hold up in court today. It is wise to have an attorney experienced in non-compete agreement law review and update your non-compete agreement every few years. The money spent now will more than pay off later when you are relying on that agreement to prevent an employee from walking out the door and taking your valuable, proprietary information to a competitor.

What non-compete agreements are and are not.

A non-compete agreement is a contract (or a provision in a contract) between an employer and an employee that prohibits the employee from performing certain activities within a specified geographic area for a set amount of time. The purpose of non-compete agreements is to protect an employer’s proprietary and valuable information. An employer who invests time and money in training an employee and discloses valuable information that the employer has developed at great expense wants protection from that employee leaving and using that information to directly compete with the employer. Examples of the type of information an employer might want to protect include customer lists, vendor lists, pricing lists, methods and procedures, and client renewal dates (for insurance brokers). Employers often use non-compete agreements in conjunction with non-solicitation agreements to further protect them from the impact of losing an employee.

Non-compete agreements are not a mechanism for retaining employees by eliminating all alternative employment opportunities. They also are not a mechanism for preventing competitors from being able to find workers for open positions. If there is evidence that an employer has used non-compete agreements for these prohibited purposes, a court will not enforce the agreement.

The first thing an employer must understand is when a non-compete (or non-solicitation) agreement can and cannot be used. As the Check Into Cash lawsuit demonstrates, non-compete agreements are not appropriate for all employees. The Illinois Freedom to Work Act, 820 ILCS 90/1 et seq., prohibits the use of non-compete agreements for employees whose earnings do not exceed the greater of minimum wage or $13 per hour. Continue reading ›

A complaint alleging breach of a non-disclosure agreement and misappropriation of trade secrets was successfully dismissed for lack of jurisdiction where the defendant was not alleged to have sold a competing product within the state in which the action was filed.

Brad Diedrich worked from May 2003 through September 2017 for Mitek Corporation, an Illinois manufacturer of audio equipment. Diedrich worked as a Senior Engineering Manager for most of his time at the company. Through his work, Diedrich learned trade secrets and confidential information at Mitek. In 2016, Diedrich signed a non-disclosure agreement. The agreement also contained non-competition and non-solicitation clauses.

In April 2017, Diedrich went with Mitek’s President and CEO, John Ivey, to a Hong Kong electronics fair. At the fair, one of Mitek’s business partners, EVR, proposed to sell Mitek a digital signal processing amplifier. Ivey asked the company to send information regarding the proposal to Diedrich, but Diedrich failed to follow up on the proposal. Soon after, EVR agreed to work with a division of MTX to develop the new product. After executing a confidentiality agreement, EVR sent a prototype to MTX, which Diedrich viewed and examined. Continue reading ›

A free market requires a free labor market, and yet many of the politicians who claim a free market as a central component of our democracy actively work against the formation and maintenance of a free labor market.

A free labor market means workers are free to work for the companies they want to work for, doing the kind of work they want to do, but many companies have been using things like non-compete agreements and anti-poaching restrictions to keep workers from leaving to work for competitors.

The problem with such restrictions is that a labor market in which employees have more options is a more competitive labor market. When employees have the option to leave to work for another company that’s offering them more money, they have the opportunity to either leave their current employer in favor of higher wages or to stay and negotiate higher wages with their current employer. More freedom means more bargaining power, but companies have been actively working to restrict that freedom – and by extension, that bargaining power.

Anti-poaching restrictions have become the latest method companies have used to try to keep employees right where they want them. Fast food restaurants, in particular, have been using anti-poaching clauses in their contracts with franchisees in order to make sure franchisees don’t poach employees from each other. Such clauses usually forbid franchisees from hiring applicants who are current or recent employees of the parent company or any of its other franchisees without the express permission of the current or previous employer. Continue reading ›

The Non-Compete

All contracts are subject to scrutiny before the law, especially when a dispute arises, including employment ones.  The importance of fair and just contracts always comes up in the media spotlight and the courts.  If a contract is too much in favor of one party who has far more bargaining power over the other party, it may violate the law. Employers should take this into consideration when drafting terms and have them reviewed by attorneys who are familiar with restrictive covenants within the scope of employment law.

One Clause Cannot Fit All Employees

A “one size fits all policy” when drafting restrictive covenants, will risk the clause being unenforceable. This is especially true if the demand is unreasonable or not necessary to protect legitimate business interests. When entering into the employment domain, covenants are imposed on employees restricting what they can and cannot do once they leave the job. Violations and restrictions are what employers often look for when they wish to seek enforceability of a contract that was entered into when employees decide to move elsewhere. Typically, such agreements prohibit the competing with an ex-employee for a certain period after the employee has left the business, or prevents the ex-employee from soliciting or dealing with customers of the business by using knowledge of those customers gained.  This issue was a reminder in the case of Dumrauf, where the Courts later deemed teh non-compete agreement to be unenforceable because it was too restrictive.

The Illinois Attorney General, Lisa Madigan, required WeWork Inc. to end its use of an overly broad clause for almost all of its employers. Overall, over 1,800 employees agreements were altered to become a less restrictive version and 1,400 agreements were rendered too restrictive voided.  The agreement went so far as to prohibit all employees from taking jobs with competitors, including cleaners, assistants, baristas and others who earn close to minimum wage.  It was viewed as being a career obstacle which did not allow people to make better decisions with their lives. The clause appeared to be one set for all employees and barred them for working with competitors after they left.  It also prohibited a worker from working anywhere where WeWork did.  That is a cost that WeWork had to bear as a social stigma in society, legally and will have a negative image in the minds of future employees as well.  Building back trust and rapport will be difficult. Continue reading ›

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