As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public.
The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay. Independent contractors come in a variety of shapes and sizes. Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries).
On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.” The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.” The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” (Emphasis added). While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.” The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.
Yesterday, the Supreme Court of the United States issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc., where it addressed questions surrounding the obligation of an employer to make a religious accommodation. The decision is an important one, so an understanding of what the Court exactly concluded and how its dictates should be adopted for employers on a day-to-day basis is essential. In order to truly gain that understanding, though, let’s briefly take a bit of a bigger-picture look at the issue of religious accommodation in general first.
On February 25, 2015, the United States Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc, a case where religious articles of clothing have come to clash with an employer’s neutral dress code policy. In this case, a Muslim teenage girl applied for a job at an Abercrombie & Fitch store. Abercrombie requires all of its employees to adhere to a “Look Policy” which, among other things, prohibits wearing black clothing or headgear. Consistent with her religion, the applicant normally wore a hijab, a type of headscarf, for modesty purposes. The applicant’s headscarves, however, were different than those frequently worn by devout Muslim women. Unlike others, her headscarves did not cover her neck, were not tightly bound, and were often bought at ordinary mall clothing stores.
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court. Typically, however, employers confront allegations of retaliation only from current or just-made-former employees. Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances.