Category: Crisis Management


Part IV of “The Restricting Covenant” Series: Coaches and Colleges

Posted on June 6th, by Editor in Crisis Management. Comments Off on Part IV of “The Restricting Covenant” Series: Coaches and Colleges

By Lawrence J. Del Rossi

This is the fourth article in a continuing series, “The Restricting Covenant.” It discusses the concept of protectable “playbooks” in restrictive covenant cases and the individuals that use them to compete.

Let’s Play Ball, but with Restrictions

This year’s NFL Super Bowl LI ended in spectacular fashion when the New England Patriots made an historic comeback to win in overtime against the Atlanta Falcons. After the game, there was much discussion about the Patriots’ unique “playbook,” their coach, and his game strategy for winning the Super Bowl for the fifth time in nine appearances.  This discussion led me to the question of whether a sports organization can restrict a coach from leaving one team and coaching another competing team.  Can it restrict a departing coach from recruiting athletes for a new team?  Can it demand the … Read More »


Part III of “The Restricting Covenant” Series: Recipes and Restaurants

Posted on May 4th, by Editor in Crisis Management. Comments Off on Part III of “The Restricting Covenant” Series: Recipes and Restaurants

By Lawrence J. Del Rossi

This is the third article in a continuing series, “The Restricting Covenant.” In restrictive covenant cases, a company’s trade secrets are sometimes referred to as its “secret sauce” or “secret recipe.”  The “secret formula” of Coca-Cola soda is an analogy used to help explain the uniqueness of a company’s protectable interest and the need to prevent unauthorized disclosure, misappropriation or unlawful competition.  This talk about secret sauces and recipes not only made me hungry, but it also relates to the subject of this article – restrictive covenants, trade secrets and the food and restaurant industry.

What’s in Your Secret Sauce?

Food recipes can constitute trade secrets.  In Tavern Restaurant v. Brandow, for example, the Supreme Court of Iowa held that a restaurant had successfully demonstrated at trial that its former manager and his new employer (a competing restaurant) … Read More »


Part II of “The Restricting Covenant” Series: Barbers and Beauty Shops

Posted on April 3rd, by Editor in Crisis Management. Comments Off on Part II of “The Restricting Covenant” Series: Barbers and Beauty Shops

By Lawrence J. Del Rossi

This is the second article in a continuing series, “The Restricting Covenant.” In this article, I discuss a topic that is near and dear to me – my hair and my long-time relationship with my barber.  I have used the same barber to cut my hair since high school, even after moving many miles away.  I sit in his chair, he cuts my hair with expert precision, and I am a satisfied customer.  This got me to think about one of the most basic reasons why employers want to impose non-compete and non-solicitation obligations on their employees – the value and strength of a long-term customer relationship.  Courts have long recognized that protecting customer relationships is a legitimate protectable business interest that can support the enforcement of a restrictive covenant if it satisfies standards of “reasonableness.”  … Read More »


Part I of “The Restricting Covenant” Series: Psychologists and Psychiatrists

Posted on March 2nd, by Editor in Crisis Management. Comments Off on Part I of “The Restricting Covenant” Series: Psychologists and Psychiatrists

By Lawrence J. Del Rossi

Restrictive covenants are private agreements that restrict an individual’s business activities within a specific geographic area for a period of time, in return for wages, access to information, or some other type of tangible benefit. Like the spots of a leopard, they come in all shapes and sizes.  Their enforceability varies from state to state, from occupation to occupation, and from industry to industry.  Many states have quirky or arcane rules or regulations tailored to specific occupations.  Some industries have specific rules and practices that dictate the parties’ course of dealing and determine the “reasonableness” of the restrictions.  Some employers prefer non-competes, while others prefer non-solicitations or non-disclosures, or some combination of each.  In any event, before agreeing to be restricted, or before asking someone to be restricted, this legal landscape should be explored and understood … Read More »


Third Circuit Makes it Easier to Prove ADEA Disparate Impact Claims By Use of Subgroups of Older Workers

Posted on January 20th, by Editor in Counseling & Compliance Training, Crisis Management. Comments Off on Third Circuit Makes it Easier to Prove ADEA Disparate Impact Claims By Use of Subgroups of Older Workers

By Lawrence J. Del Rossi 

The Third Circuit Court of Appeals recently issued a precedential decision, Karlo, et al. v. Pittsburgh Glass Works, LLC, that likely will make it easier for subgroups of older workers to bring lawsuits under the Age Discrimination in Employment Act (“ADEA”), on a “disparate impact” theory of liability.  It also creates a split with the Second, Sixth and Eighth circuits, paving the way for greater uncertainty for national employers.

The Karlo Decision – Comparison of Subgroups Permitted For Disparate Impact Analysis  

The defendant Pittsburgh Glass Works, LLC instituted reductions in force that resulted in the termination of approximately 100 employees.  The plaintiffs, a group of workers all over the age of 50, brought a putative ADEA collective action, asserting, among other things, disparate impact claims.  To establish a prima facie case for disparate impact under the ADEA, a … Read More »


Laboring Under New Laws

Posted on January 9th, by Editor in Audits/Due Diligence, Counseling & Compliance Training, Crisis Management, Fair Pay Act Obligations, Wage/Hour Class Actions. Comments Off on Laboring Under New Laws

By Mark E. Terman

*Originally published by CalCPA in the January/February 2017 issue of California CPA — the original article can be found here.

Few things in this world can be certain, except that the California Legislature will expand regulation of employers each year and the sun will come up tomorrow. In an apparent pendulum swing, 569 bills introduced in 2016 mention “employer,” compared to 224 in 2015 and 574 in 2014. Most of those bills did not pass, and of the ones that did, most were not signed into law by Gov. Brown. Essential elements of selected bills that became law affecting private employers, effective Jan. 1, 2017, unless otherwise mentioned and organized by Senate and Assembly bill number, follow.

California Minimum Wage Ascending to $15
SB 3 sets a state minimum wage for non-exempt employees that will escalate annually over the next … Read More »


Recent Scrutiny of Non-Competes

Posted on December 6th, by Editor in Crisis Management. Comments Off on Recent Scrutiny of Non-Competes

Larry Del Rossi published an article for Today’s General Counsel titled, “Recent Scrutiny of Non-Competes.” Larry provides an overview of non-compete agreements (also known as restrictive covenants) and discusses a recent uptick in government activity that may regulate or challenge private businesses’ use and enforcement of non-competes.

Larry says “one major challenge for national companies is that enforcement of non-competes varies from state to state, so that there is no uniform standard.” In May 2016 the White House issued “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” a document intended to identify areas where implementation and enforcement of non-competes may present issues, put forward a set of best practices, and serve as a call to action for state reform.

Larry advises companies to consider whether all employees within the company should have non-competes, evaluate the scope and structure of … Read More »


2016 Presidential Election Aftermath: What Can be Expected in the Labor & Employment Law Space

Posted on November 17th, by Editor in Audits/Due Diligence, Counseling & Compliance Training, Crisis Management, Fair Pay Act Obligations, Wage/Hour Class Actions. Comments Off on 2016 Presidential Election Aftermath: What Can be Expected in the Labor & Employment Law Space

By Gerald T. Hathaway

We continue to analyze and assess what the 2016 election results mean in the Labor & Employment Law space, and what we can expect from a GOP White House, House and Senate.  The last two times that this GOP alignment was present were 1929 and 2007 (let’s hope that the financial events that followed those two occasions – the Great Depression and the Great Recession – do not repeat themselves this time around).

It is difficult to predict what President Donald J. Trump’s actual agenda will be, because his campaign was long on broad concepts and very short on serious, detailed policy presentation. While Candidate Trump said many things, including contradictory things, about many topics, some themes can be discerned from pre-election and post-election comments.  Also, some issues have been on the GOP wish list for some time, … Read More »


What Employers Need to Know about the Government’s Recent Scrutiny of Non-Competes

Posted on August 15th, by Editor in Crisis Management. Comments Off on What Employers Need to Know about the Government’s Recent Scrutiny of Non-Competes

By Lawrence J. Del Rossi

For more than 400 years, private businesses have used non-compete agreements in one form or another to protect their legitimate business interests, such as long-standing customer relationships, investment in specialized training, or development of trade secrets. They are commonplace in many employment contracts in a variety of industries ranging from retail, insurance, healthcare, financial services, technology, engineering, and life sciences.  Some state legislatures and courts have curtailed their use in certain industries or professions.  California, for example, prohibits them unless limited exceptions apply.  Cal. Bus. Code §16600.  Most states prohibit them for legal professionals.  Many courts can modify or “blue pencil” them if the restrictions are found to be broader than necessary to protect an employer’s legitimate business interests.

Historically, federal and state agencies have generally stayed out of the mix in terms of regulating or challenging private … Read More »


Federal Court Orders Stop to DOL’s Persuader Rule

Posted on June 28th, by Editor in Counseling & Compliance Training, Crisis Management. Comments Off on Federal Court Orders Stop to DOL’s Persuader Rule

By Stephanie Dodge Gournis, Gerald Hathaway, and Mark Foley

On June 27, 2016, a Texas federal court granted a preliminary injunction preventing the Department of Labor (DOL) from moving forward on a nationwide basis with the July 1st enforcement of its Final Rule Interpretation of the “Advice” Exemption to Section 203(c) of the Labor Management Reporting and Disclosure Act (LMRDA) (also known as the DOL’s “Persuader Rule”). The court order was based on findings that plaintiffs in the case of National Federation of Independent Business, et al. v. Perez, 5:16-cv-00066-C, were likely to succeed on the merits of their claims in establishing that the DOL’s Persuader Rule is inconsistent with federal law and exceeds the DOL’s statutory authority.

The LMRDA requires employers and labor relations consultants (including attorneys) to report certain agreements and arrangements (and payments made pursuant to such agreements/arrangements) under … Read More »




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Part IV of “The Restricting Covenant” Series: Coaches and Colleges

By Lawrence J. Del Rossi

This is the fourth article in a continuing series, “The Restricting Covenant.” It discusses the concept of protectable “playbooks”...