Companies and employers aroundJames-Kachmar-08_web the country seek to protect their intellectual property by, among other things, using non-compete provisions in employment agreements. Generally, these provisions are intended to prevent an employee from soliciting or doing business with a former employer’s customer/clients over a set period of time and/or in regard to a set geographical area. Under California law, and specifically Business and Professions Code section 16600, such provisions are unenforceable unless they fall within one of the statutory exceptions, i.e., primarily in connection with the sale of a business interest. For years, although California state courts would refuse to enforce such provisions under section 16600, federal courts in California sometimes applied a narrow court-created exception and allow such provisions to be enforced provided that they were narrowly tailored as to time and geographical area. In 2008, the California Supreme Court unequivocally ruled that such provisions were unenforceable under section 16600 and rejected the “narrowly restricted” exception used by federal courts. (See Edwards v. Arthur Andersen, LP, 44 Cal.4th 937 (2008).)

In response to the Edwards decision, many California companies and employers began to omit such provisions from their new employment agreements or re-write them with specific language restricting an employee from using trade secret information to unfairly compete. However, other companies and employers left their old agreements untouched and in place thinking merely that they would not enforce them should the need arise. A recent court decision, Couch v. Morgan Stanley & Co., Inc. (E.D. Cal. Aug. 7, 2015), reveals the risk an employer or company faces in failing to update their older employment agreements to remove or revise such provisions.

Continue Reading Hidden Pitfalls of Old Non-Compete Provisions

On August 7, 2015, the California Labor Commissioner issued its first opinion letter on one discrete issue under the California Health Workplaces Healthy Families Act which requires employers to provide paid sick leave to employees.  The question posed to the Labor Commissioner was this:

 If an employee currently works a regular 10 hour shift, and if the employer elects to proceed under a “no accrual or carry over” system … of providing paid sick leave, does the employer have to “front load” that employee at the beginning of the year with 30 hours of leave (three days at 10 hours per day) or only with 24 hours of leave on the theory that a “day” is limited to a maximum of eight hours?Beth-West-15_web Continue Reading Labor Commissioner’s First Opinion Letter On California’s New Paid Sick Leave Law

In the bustling craft brew transparenteconomy brewers are faced with new issues every day. One that recently came to my attention arises when the craft brewery’s brewmaster or head brewer decides to either start his own craft brewery, or go to work for another brewery. While this may not initially seem like a big deal, it gets much more complicated when that brewmaster or brewer is responsible for the creation of your flagship brew. The question arises: who owns the intellectual property rights to that brew? Of course, the brewery is going to say that they have been selling, distributing, and promoting the brew, so it must be theirs. On the other hand, the brewer is going to say that he created it, so it must be his. The truth is that determining who owns the intellectual property rights to the brew formula can get quite complicated, encompassing numerous factors. But it does not have to be.

With a booming industry such as craft brew, it is imperative that the appropriate precautions be taken to protect the craft brewery’s most lucrative asset: the beer itself. In order to protect a brew formula from being taken from your company and utilized by a competitor when one of your brewers, the creator of the formula or not, leaves the company, the formula must be treated as a trade secret. The California Uniform Trade Secrets Act (“UTSA”) defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, or technique, or process, that:
(1) derives independent economic value, actual or potential, from not being generally known to the public, or to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Continue Reading Hey, that’s my beer! I think…

Joining similar holdings from several other circuits, the Ninth CircuitLucas Clary 02_web recently held in Mayo v. PCC Structurals, Inc. that a depressed employee who threatened to kill his co-workers and was thereafter fired was not a qualified individual under the ADA.  The court therefore affirmed the district court’s summary judgment on the employee’s disability discrimination claim.

Stress, Depression, and Bullying Lead Employee to Threaten Co-Workers’ Lives

The plaintiff, Timothy Mayo, welded aircraft parts for PCC Structurals.  In 1999, Mayo was diagnosed with major depressive disorder (MDD).  Despite the diagnosis, he continued working without incident for years.  In 2010, that changed.  Mayo and some other co-workers felt they were being bullied by their supervisor.  Following a co-worker’s complaint and a subsequent meeting to discuss the bullying, Mayo told three different co-workers that he wanted to kill the supervisor.  He told one co-worker that he felt like bringing a shotgun to work and “blowing off” the supervisor and others’ heads.  He told another co-worker that he wanted to “bring a gun down and start shooting people,” explaining that 1:30 p.m. was an optimal time because all of the supervisors would be present.  Pretty scary stuff.

Mayo’s co-workers reported the threats and HR reached out to him.  He told an HR representative that he “couldn’t guarantee” he wouldn’t carry out the threats.  PCC suspended him and called the police, who in turn took Mayo into custody for six days on the basis that he was a threat to himself and others.  After his release, Mayo spent two months on FMLA leave.  His doctor thereafter cleared him to return to work but suggested that he be assigned a different supervisor.  Instead, PCC fired him.

Continue Reading Ninth Circuit Says Employee Who Made Death Threats Against His Co-Workers Could Not Sue His Employer For Disability Discrimination

Summary of Program

Companies and their employees widely use social media in their daily business activities.  These networking sites are used by employees to communicate with one another as well as current and potential customers.  However, the use of social media may occasionally adversely impact an employer’s business or present other legal risks.  What should an employer do to protect itself without intruding on an employee’s rights?LaborEmpSeminarLogo

Program Highlights:

  • Employer’s use of employee’s social media information versus the employee’s right to privacy.
  • Protection of employer’s confidential and proprietary information.
  • Ramifications of B.Y.O.D. policies.
  • Potential employer liability for employee’s online conduct.
  • The importance of effective Electronic Use and Social media policies.
  • Legal limits for employee use of social media in the workplace.

Date:   August 13,  2015

Time:   9:30 a.m. – 11:30 a.m.

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.