North America

Eighth Circuit Finds Independent Contractor’s Non-Compete Unreasonable

It is fairly uncommon for a circuit court to opine on the reasonableness of a restrictive covenant. In Ag Spectrum Co. v. Elder, No. 16-3113, 2017 U.S. App. LEXIS 14128 (8th Cir. Aug. 2, 2017), the Eighth Circuit issued a decision holding that an independent contractor’s non-compete was unreasonable and unenforceable. Applying Iowa law, the Eighth Circuit explained that reasonableness depends on the circumstances, including consideration of several factors such as: (1) the employee’s closeness to customers; (2) the employee’s peculiar knowledge gained through employment that provides a means to pirate the customer; (3) the amount and sophistication of employer-provided training and the nature of the business; and (4) matters of basic fairness. The Court stated that the fundamental goal is to prevent unjust enrichment.

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Delaware Bans Compensation History Inquiries

On June 14, 2017, Delaware Governor John Carney signed into law a bill that amends Delaware’s Code relating to unlawful employment practices to prohibit employers from (i) engaging in salary-based screening of prospective employees where prior compensation must satisfy certain minimum or maximum criteria or (ii) seeking the compensation history of a prospective employee from the prospective employee or a current or former employer (the “Law”). Under the Law, “compensation” is defined broadly to include wages, benefits, or other compensation.

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David Williams Russell Named a Lifetime Achiever by Marquis Who’s Who

CARMEL, IN, July 28, 2017 /24-7PressRelease/ — Marquis Who’s Who, the world’s premier publisher of biographical profiles, is proud to name David Williams Russell a Lifetime Achiever. An accomplished listee, Mr. Russell celebrates many years’ experience in his professional network, and has been noted for achievements, leadership qualities, and the credentials and successes he has accrued in his field. As in all Marquis Who’s Who biographical volumes, individuals profiled are selected on the basis of current reference value. Factors such as position, noteworthy accomplishments, visibility, and prominence in a field are all taken into account during the selection process.

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Massachusetts Courts Have Spoken: Guidance Regarding No-Tipping Policies

The change in tip jars quickly adds up, and can especially add up in Massachusetts, where the failure to lawfully distribute tips among wait staff employees may subject a restaurant to mandatory triple damages. The Massachusetts Tips Act (Tips Act), with its complexities and nuances, has vexed restaurants throughout the Commonwealth since its inception in 2004. Whether restaurants and franchises permit wait staff employees to accept tips or not, there are important aspects of the Tips Act employers should be aware of.

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Alberta Court of Appeal Closely Examines Employer’s Privilege Claims

 

The Alberta Court of Appeal recently released its decision in Alberta v. Suncor Energy Inc., 2017 ABCA 221.  The court upheld the importance of lawyer-client and litigation privileges, holding that they play a “central role” in the Canadian justice system,.  However, where an employee had been fatally injured, the court took a closer look at the factual basis for the employer’s claims of privilege over documents that formed part of its investigation into the death. 
 
On April 20, 2014, an employee of Suncor Energy Inc. (“Suncor”) was fatally injured at a worksite near Fort McMurray, Alberta.  The Alberta Occupational Health and Safety (“OHS”) officers issued a stop-work order that day.  Immediately after the accident, anticipating litigation, Suncor began an internal investigation and threw a privilege blanket over all information relating to the investigation.  Legal counsel for Suncor directed the investigation team to segregate all documents and to endorse all material as “privileged and confidential”. 
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Senate Confirms Trump NLRB Nominee Marvin Kaplan; Delays Nomination of William Emanuel

On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess. The cloture vote kicks off a 30-hour period of debate. A final confirmation vote will then be scheduled.

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Taking FMLA leave does not guarantee reinstatement

Employees sometimes think taking FMLA leave insulates them from an adverse employment action. Not so, as a couple of recent cases make clear.

Autumn Tibbs worked as the administrative assistant to the Chief Judge of the Circuit Court of the Seventh Judicial Circuit of Illinois. The Chief Judge has responsibility for the administrative functions of the circuit. Judge Leslie Graves, the Presiding Judge of Sangamon County, supervised Tibbs.

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Lawyers Behaving Badly

It’s a bad idea for lawyers to threaten to call immigration authorities to gain advantage over another party. In 1995, plaintiff Jose Arnulfo Arias went to work as a milker for Angelo Dairy. Three Angelos owned and operated the dairy: Luis, Maria, and Joe (“Angelos”). When the Angelos hired Arias, they did not complete and file a Form I-9 (“I-9”) regarding his employment eligibility in the United States.

Instead of complying with the law, the Angelos used it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis responded that if Arias left to work at the other dairy, Luis would report the other dairy to federal immigration authorities as an employer of undocumented workers, which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.

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New I-9 Form and Handbook

US Citizenship and Immigration Services released a revised version of Form I-9, Employment Eligibility Verification on July 17, 2017. On September 18, 2017, employers must use the revised form with a revision date of 07/17/17 N. USCIS revised the Form I-9 instructions as well as the list of acceptable documents on Form I-9.

USCIS also published the updated M-274, Handbook for Employers: Guidance for Completing Form I-9. The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. The new version, dated July 2017 replaces the previous version.

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Former employees must arbitrate ADEA claims on individual basis

In June 2012, General Mills announced it was terminating about 850 employees. General Mills offered them severance packages in exchange for signing release agreements. By the agreements’ terms, employees released General Mills from all claims relating to their terminations—including, specifically, ADEA claims. The agreements also stated that claims covered by the agreements would be individually arbitrated:

[I]n the event there is any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, all such disputes or claims will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of class, collective, or representative proceeding.
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