North America

The Longest Lasting Non-Compete Case Of All Time?

Non-compete litigation is generally fast and furious, with witness interviews, fact gathering, drafting, requests for injunctive relief, and expedited discovery all happening within a very compressed timetable. Accordingly, a recent decision issued by the Indiana Court of Appeals (Think Tank Software Development Corporation v. Chester, Inc., et al.) in a case filed in April of 2002 is a “head scratcher”: how could any non-compete case take nine years to resolve? The short answer is that after some initial skirmishing over a restraining order, a change of venue, and the dissolution of that restraining order, the case apparently went dormant for two years. Then, after an unsuccessful motion to dismiss the case for want of prosecution in 2004, the case lurched into discovery which lasted until November 30, 2009. The defendants then successfully moved for summary judgment, after which the case moved on to the Court of Appeals, which affirmed in part and reversed in part, sending the case back to the trial court . . . for still further proceedings.

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Ask Friday!

Here at Zen I’ve decided to start a weekly post called “Ask Friday!” where I’ll take a reader question and answer it.  You can leave your questions in the comments for any post, if you’d like, or message me on Twitter, LinkedIn or Facebook.

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Section 409A Compliance: Release of Claims Provisions Require Employer Action Now

In Notice 2010-80, the Internal Revenue Service (“IRS”) expanded the methods and procedures for correcting provisions in deferred compensation plans or employment, severance, or other agreements that are in violation of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and the guidance issued thereunder. The IRS also provided in Notice 2010-80 additional guidance and transitional relief for documentary failures relating to the common practice of conditioning payments that are payable upon termination on the employee’s execution of a release of claims. As discussed below, in order to take advantage of the transitional relief, there are specific rules to follow and a plan amendment may be required. These rules also apply to other employment-related actions, such as the execution and submission of a noncompetition or nonsolicitation agreement.

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Minimize Your Risk of Invalidating the Tip Credit Paid to Tipped Employees Performing “Dual Jobs”

By:  Douglas Weiner and Charles H. Wilson

In a recently reported case from the Eighth Circuit Court of Appeals, Applebee’s servers and bartenders alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and, therefore, should be paid the minimum wage of $7.25 for the time spent performing non-tipped work, rather than the direct wage of $2.13 the FLSA allows employers to pay employees in tipped occupations See 29 U.S.C. § 203(m) and 29 U.S.C. § 203(t).

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Do you know the status of your workers? The right answer is more important than ever.

On April 28, a multi-disciplinary team of McDonald Hopkins lawyers explored the issue of worker classification – and misclassification – and the impact it can have on your business. With perspectives from tax, employee benefits, business law, and labor and employment attorneys, the panelists discussed the various tests used for distinguishing employees from independent contractors as well as potential liability under the Internal Revenue Code, the Employee Retirement and Income Security Act, and the Fair Labor Standards Act, among others. Panelists also offered tips for avoiding some of the most common mistakes found in employment agreements, benefit plans, and other business records.

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Minimize Your Risk of Invalidating the Tip Credit

By Douglas Weiner and Charles H. Wilson

In a recently reported case from the Eighth Circuit Court of Appeals, Applebee’s servers and bartenders alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and, therefore, should be paid the minimum wage of $7.25 for the time spent performing non-tipped work, rather than the direct wage of $2.13 the FLSA allows employers to pay employees in tipped occupations See 29 U.S.C. § 203(m) and 29 U.S.C. § 203(t).

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Paul Starkman article on expansion of employer liability by Supreme Court appears in recent edition of Inside Counsel

Arnstein & Lehr attorney Paul E. Starkman

Paul E. Starkman

Arnstein & Lehr Chicago Partner Paul Starkman‘s article “Labor: U.S. Supreme Court Expands Employer Liability in Recent Decisions,” appeared in the April 18 edition of InsideCounsel. The article addresses two recent decisions by the Supreme Court (Staub v. Proctor Hospital and Kasten v. Saint-Gobain Performance Plastics Corp.) that expanded employer liability for workplace discrimination and retaliation against employees.

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Attestation for EHR Incentive Programs Available

Earlier this month, CMS launched the attestation portion of the EHR Incentive Payment Program.  Beginning on April 18th, eligible professionals and hospitals are now able to attest to meaningful use (or adopt, implement or upgrade for Medicaid).  Along with the attestation itself, CMS launched its Meaningful Use Attestation Calculator, a wizard which walks eligible professionals and hospitals […]

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United States Supreme Court enforces class action waiver in arbitration agreement

In a move that could have a significant impact for employers, the United States Supreme Court recently upheld a so-called class action waiver provision in an agreement to arbitrate.  Although the decision occurred in the context of a consumer contract, the implications are likely to be far more wide-ranging.  In particular, employers that require employees to agree to otherwise enforceable arbitration clauses are likely to have those clauses upheld and enforced even if they include a bar to classwide arbitration.

In AT&T Mobility, LLC v. Concepcion, AT&T offered a free phone to anyone who signed up for itsThumbnail image for Cellphone-CourtesyOf_www.adigitaldreamer.com.jpg cell phone service.  The contract between AT&T and cell phone service purchasers included a mandatory arbitration clause that barred classwide arbitrations.  Dissatisfied with the fact that AT&T charged sales tax on the “free” phone, cell phone service purchaser Vincent Concepcion joined a purported class action law suit in a California Federal District Court.  AT&T moved to compel one-on-one arbitration under the sales contract.  Both the District Court and the Ninth Circuit Court of Appeals refused to do so.  The lower courts relied on a California state court decision that held that class arbitration waivers in consumer contracts were unconscionable and, therefore, rendered the arbitration clause unenforceable.

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15 Inspiring Women Entrepreneurs

Here is an interesting article and assessment of at least 15 women entrepreneurs: “15 Female Entrepreneurs Who Are Incredibly Inspiring.” Indeed, the article has an eclectic grouping of women. However, we are sure our readers might know at least 15 who have not made this list!

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