Pennsylvania Supreme Court Finally Kills Hope That Magic Words Can Substitute for Valuable Consideration in Exchange for Post-Offer Restrictive Covenants

Posted on November 20th, by Editor in Audits/Due Diligence, Crisis Management. Comments Off on Pennsylvania Supreme Court Finally Kills Hope That Magic Words Can Substitute for Valuable Consideration in Exchange for Post-Offer Restrictive Covenants

By Daniel Aiken and Vik Jaitly

To most practitioners, Pennsylvania law governing the consideration required for an employment agreement containing a restrictive covenant (e.g., a non-competition clause or non-solicitation clause) has been simple: (1) if the restrictive covenant is entered at the inception of the employment, the consideration to support the covenant is the award of the position itself; (2) if the restrictive covenant is entered during employment (i.e., post-offer), it is enforceable only if the employee receives new and valuable consideration—that is, some corresponding benefit or a favorable change in employment status. To avoid the need to provide a current employee additional consideration, some employers added magic language to their restrictive covenants, based on a statute from 1927, which arguably made a restrictive covenant enforceable without new consideration.

Specifically, the Uniform Written Obligations Act (“UWOA”) states that a written promise “shall … Read More »


Beware of the Literal and Hypothetical When Considering Work Rules

Posted on November 19th, by Editor in Audits/Due Diligence, Counseling & Compliance Training, Crisis Management. Comments Off on Beware of the Literal and Hypothetical When Considering Work Rules

By David Woolf

National Labor Relations Board activity in the area of work rules, among other areas, has become the new normal. Employers have come to expect that the Board will find a work rule unlawful if the rule, taken literally, could hypothetically interfere with an employee’s right to engaged in “concerted activities” – legal speak for two or more employees raising issues about the terms or conditions of their employment. Now, the Board is also finding success on appeal.

Most recently, the District of Columbia Court of Appeals decided Hyundai America Shipping Agency, Inc. v. NLRB, a case in which Hyundai appealed the Board’s finding that certain work rules in its handbook violated the National Labor Relations Act because they had a tendency to interfere with its employees’ right to engaged in concerted activities. Those work rules included: (1) a prohibition … Read More »


Standards of Proof in Employment Wage and Hour Class Actions Remain a Hot Topic for U.S. Supreme Court

Posted on November 17th, by Editor in Wage/Hour Class Actions. Comments Off on Standards of Proof in Employment Wage and Hour Class Actions Remain a Hot Topic for U.S. Supreme Court

By Lawrence J. del Rossi

Last week the United States Supreme Court heard oral arguments in a donning and doffing class and collective action against Tyson Foods, Inc. (see full transcript of oral argument here) that has the potential to dramatically expand the certification of class and collective wage and hour “off-the-clock” actions.

The Fictional “Average Employee”

One of the primary issues in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, is whether the plaintiffs’ use of statistical averages in a Fair Labor Standards Act (“FLSA”) case was appropriate to certify a federal Rule 23(b)(3) damages class and to prove liability and damages at trial.  The plaintiffs relied on expert testimony to prove that a class of more than 3,000 workers at an Iowa pork processing plant were owed overtime wages for time spent donning and doffing personal protective equipment and walking to and … Read More »


2015 Elections — Roundup of Employment-Related Ballot Initiatives

Posted on November 10th, by Editor in Counseling & Compliance Training, Fair Pay Act Obligations, Wage/Hour Class Actions. Comments Off on 2015 Elections — Roundup of Employment-Related Ballot Initiatives

By Dennis Mulgrew

Local governments or voters often pass statutes or ordinances on employment-related subjects that require employers to ensure that their policies are compliant not just on a state-by-state basis, but even on a city-by-city or county-by-county basis within the same state. During this past week’s election, voters around the country considered a number of local employment-related ballot initiatives, some noteworthy examples of which are below:

Voters in Elizabethtown, New Jersey Approve Paid Sick Leave

Elizabethtown, New Jersey joins a number of other cities (including several in New Jersey) in enacting a paid sick leave ordinance. Voters approved a measure that requires employers to offer one hour of paid sick time to employees for each 30 hours worked.

Voters in Houston, Texas Reject Anti-Discrimination Ordinance

Many cities have enacted local anti-discrimination ordinances which complement or mirror anti-discrimination statutes under state and federal law. In … Read More »




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