Employment Matters Blog

Keep Your Hands Off the Customers … and the Cows

Posted in employee mobility, minimum wage, non solicitation, Non-compete, restrictive covenants

Written by Jennifer Rubin

A federal district court in Washington has confirmed that an employer’s relationship with the cows that its employees serviced is insufficient to establish a legitimate protectable interest to enforce a non-compete.

Yes, the court’s decision in Genex Cooperative, Inc. v. Contreras not only confirmed that bovine inseminators were free to solicit their prior clients (and cows), but the case provides some good reminders about drafting enforceable non-competes.

The case involved three bovine inseminators who, unhappy with their wages and working conditions (which included the failure to adhere to state minimum wage laws) quit their jobs with Genex and, the next day joined its competitor CRV USA — who immediately put them to work inseminating the cows of Genex customers. Continue Reading

SHRM: Employees’ Use of Sharing Economy Poses Risk

Posted in employer liability, independent contractor, workers compensation

My colleague Mitch Danzig was quoted in a SHRM article entitled Employees’ Use of Sharing Economy Poses Risks in which he comments on the risk employers face when requiring employees to use shared economy services such as Uber or Airbnb. The article focuses on how employers should tackle the booming sharing economy in regards to business travel, as well as the sharing industry’s future legal landscape.

HR Morning: High Court’s Decision Could End Up Costing Employers Big

Posted in Compensation, staffing, Supreme Court

My colleague Jim Nicholas was quoted in an HR Morning article entitled High Court’s Decision Could End Up Costing Employers Big in which he comments on Integrity Staffing Solutions, Inc. v. Jesse Busk, et al., a case pending in the Supreme Court on compensable vs non-compensable activities for employees. The article focuses on different facets of the issue, the justices’ viewpoints about the case, and its possible implications for all employers.

The Affordable Care Act—Countdown to Compliance for Employers, Week 11: Rethinking ACA Compliance Strategies Involving Reference Pricing Models and “MVP” Arrangements

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi

Under the Affordable Care Act’s rules governing employer shared responsibility—which are codified in Internal Revenue Code § 4980H—where an applicable large employer makes an offer of group health plan coverage that is both “affordable” and provides “minimum value” to substantially all of its full-time employees, the employer is not liable for assessable payments under Code § 4980H. (Final regulations under Code § 4980H are available here; and a set of Questions and Answers prepared by the IRS describing the final rules can be accessed here.)

In an effort to drive down the cost of complying with these rules, certain applicable large employers—principally those in industries in which coverage was not previously offered across-the-board to most, if not all, full-time employees—have sought less expensive ways to offer coverage that is both “affordable” and provides “minimum value.” In an earlier post we described some of the emerging compliance strategies, which included the reference pricing models and “MVP arrangements” that some employers were considering. Continue Reading

Fail to Pay Wages in D.C. and Get Sued With Some of Your Closest Friends (and Contractors)

Posted in Employment Legislation, staffing, Wage and Hour

Written by Tyrone P. Thomas (follow Tyrone on Twitter at https://twitter.com/tyronepthomas)

If you are a D.C. employer, temporary staffing agency, contractor or subcontractor, you have yet another wage and hour law to contend with: The Wage Theft Prevention Amendment Act of 2014.  Among other things, the law introduces new penalties for failure to pay earned wages and exposes to liability related entities that have no relationship to the employee.  Here are the highlights:

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New York City Council Continues Push to Ban Credit Checks in Connection with Employment Decisions

Posted in Applicant, background checks, consumer report, credit report, Employment Legislation, New York

New York Skyline Civil Rights LawWritten by Michael Arnold

The New York City Council’s Committee on Civil Rights recently held a hearing on a bill that would amend the New York City Human Rights Law to prohibit employers from basing an employment decision on the consumer credit history of an applicant or employee.

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He Loves Me, He Loves Me Not – Federal Appeals Court Confirms that Favoritism of a Paramour is Not Gender Discrimination

Posted in discrimination, gender, Title VII

Office Romance Gender DiscriminationWritten by Gauri Punjabi

As one employee recently learned, a supervisor’s favoritism toward another employee because of a romantic relationship does not equate to unlawful discrimination. Additionally, a complaint of said favoritism cannot serve as the basis for an actionable retaliation claim.

In Clark v. Cache Valley Electric Company, Kenyon Brady Clark, a project manager, claimed that his supervisor discriminated against him by favoring another female project manager with respect to bonuses, job assignments, and other working conditions, because the supervisor had been, or was, romantically involved with the other project manager.

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California Raiders … Not the Football Kind

Posted in California, employee mobility, non solicitation, restrictive covenants

employees leaving non competesWritten by Jennifer B. Rubin

In a pair of recent decisions, two courts interpreting California’s quirky non-compete law confirm that employee non-recruitment covenants in California are enforceable – but only if those covenants are necessary to prevent employee raiding.

Most states approach non-recruitment covenants through the “reasonableness” lens – if the enforcement of a non-recruitment covenant is necessary to protect an employer’s legitimate business interest in protecting the stability of its workforce and business, then chances are the covenant will be enforced.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 12: The Treatment of Unpaid Leaves of Absence Under the Look-back Measurement Method

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi

Final regulations implementing the Affordable Care Act’s employer shared responsibility rules furnish employers with two alternative methods—the monthly measurement method and the look-back measurement method—for identifying full-time employees. (The Act’s employer shared responsibility standards are codified in Internal Revenue Code § 4980H; the final regulations can be accessed here.) For each method, the final regulations provide standards governing breaks-in-service that are unique to Code section 4980H. For employers choosing to apply the look-back measurement method, the principle purpose of the break-in-services rules is to determine whether an employee, upon his or her return from a service break, may be treated as a “new employee” or a “continuing employee.” The employee’s status as a new or continuing employee governs when the employee must be offered group health plan coverage without exposing the employer to assessable payments under the Act’s employer shared responsibility standards.

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Who Hurts More? Another Battle in the Non-Compete Wars

Posted in employee mobility, non solicitation, Non-compete, restrictive covenants

Non-Compete LawWritten by Jessica Catlow

A recent decision from a Georgia federal district court concerning post-employment non-compete agreements reached two notable conclusions of which employers should take note:

  1. Restricting a former employee’s access to customers could result in lost opportunities for the employee which are difficult, if not impossible, to quantify; and
  2. Loss of business due to free and fair competition is not a “harm”; violation of legal rules designed to promote competition however, is a harm.

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