Part 13 of “The Restricting Covenant” Series: The NLRB, NLRA and Non-Competes

The acronyms “NLRB” or “NLRA” rarely appear in articles about enforcement of private sector non-compete agreements. Until recently. Dun dun dun! (Que the “dramatic gopher video” on YouTube).

In this thirteenth article of “The Restricting Covenant” series, I discuss two cases in which the National Labor Relations Board (“NLRB”) determined that an employer’s enforcement of non-compete and non-solicitation agreements violated Section 8(a) of the National Labor Relations Act (“NLRA”). Section 8(a) makes it an unfair labor practice for an employer to maintain workplace rules that would reasonably tend to chill employees in exercising their Section 7 rights to engage in or refrain from concerted activities protected under the NLRA.

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Part XII of “The Restricting Covenant” Series: Consideration, Covenants and Car Salesman

If you’ve ever purchased an automobile, you know that haggling for a good deal is either the best, or the worst, part of the car-buying experience. That new car smell is pretty memorable too.  No matter the aroma or the final purchase price, however, in order to drive home in that shiny new vehicle, you ultimately must agree to give the dealership a certain amount of money, known in legal terms as “consideration.”  This concept of consideration is equally important in the non-compete world, as explored in this twelfth article in The Restricting Covenant Series, through the lens of a hypothetical car salesman.

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Check Your Employment At-Will Disclaimers: New Jersey Appellate Court Scrutinizes Company’s Code of Conduct

A recent decision by the New Jersey Appellate Division is a glaring reminder for employers in New Jersey and elsewhere to review their employee handbooks, manuals and other codes of conduct periodically to ensure that their employment at-will disclaimer language is clear and prominent in compliance with the seminal decision on this issue, Woolley v. Hoffmann-La Roche, Inc. 99 N.J. 302, modified, 101 N.J. 10 (1985), and its progeny.

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Part XI of “The Restricting Covenant” Series: Restatements of the Law and Restrictive Covenant Disputes

In this eleventh article in the continuing series “The Restricting Covenant,” I discuss the “Restatements of the Law,” which, while not law per se, are important secondary legal sources that should not be overlooked when tackling thorny restrictive covenant disputes.

Relevance of the Restatements in Non-Compete Cases

In many states, decisions regarding the validity and enforceability of non-compete agreements are made pursuant to the “common law.” The common law is a body of law developed over a course of time from judicial decisions and rulings. The Restatements of the Law attempt to “restate,” organize, and explain the common law of the United States. They are organized into 15 different areas of law, including Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Torts and Trusts. They are published by the American Law Institute (ALI) and written by professors, judges and private attorneys. Each “statement of law” has a specific section, and each section is accompanied by “Comments,” “Illustrations” (with hypos), and “Reporter’s Notes” (with case citations).

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Part X of “The Restricting Covenant” Series: Orthopedic Medical Devices and Non-Competes

In this tenth article in the continuing series “The Restricting Covenant,” I discuss non-competition issues that arise in the orthopedic medical device industry.

I would venture to say that, in the past 20 years, the orthopedic medical device and equipment industry is at the top of the charts for high-stakes litigation and precedent-setting rulings with respect to non-competition and non-solicitation disputes. Many orthopedic medical device and equipment companies have sued each other and their former employees, sales representatives, independent contractors, vendors, consultants or distributors for violating the terms of their restrictive covenants. These companies have sought injunctive relief and money damages.

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Part IX of “The Restricting Covenant” Series: Tolling and Technicians

This year’s Halloween festivities, my recent binge watching of “Stranger Things 2,” and Harry Potter’s invisibility cloak, inspired the topic of this ninth article in “The Restricting Covenant” Series, which discusses tolling provisions in non-compete agreements and restrictive covenant cases. Specifically, can a tolling provision provide judicial relief to an employer if its former employee hid under the cover of darkness and concealed violations during the restricted period? What relief do employers have in this situation?

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