Let me begin by explaining that this article does not focus on the janitorial profession and whether non-competes in that profession are enforceable. That’s a topic for another day. Instead, this fourteenth article in The Restricting Covenant series discusses a concept that some courts and litigants refer to as the “janitor analogy” or the “janitor test,” when analyzing or illustrating the overbroad scope of a non-compete provision.
In Any Capacity?
The janitor analogy is most often invoked in cases where the employer’s non-compete agreement prohibits a former employee from being employed or affiliated with a competitor “in any capacity” or “in any manner.”
Continue reading “Part 14 of “The Restricting Covenant” Series: Non-Competes and the Janitor Analogy”
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.
Continue reading “Part 13 of “The Restricting Covenant” Series: The NLRB, NLRA and Non-Competes”
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.
Continue reading “Part XII of “The Restricting Covenant” Series: Consideration, Covenants and Car Salesman”
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).
Continue reading “Part XI of “The Restricting Covenant” Series: Restatements of the Law and Restrictive Covenant Disputes”
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.
Continue reading “Part X of “The Restricting Covenant” Series: Orthopedic Medical Devices and Non-Competes”
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?
Continue reading “Part IX of “The Restricting Covenant” Series: Tolling and Technicians”