On November 17, 2020, Pennsylvania Health Secretary Dr. Rachel Levine issued two new orders in response to rising levels of COVID-19 in the Commonwealth. These orders (1) place certain restrictions on individuals traveling into Pennsylvania, and (2) provide increased and more detailed requirements related to the use of face coverings in the Commonwealth.
The travel order requires that all travelers entering Pennsylvania from other countries and states, whether a returning resident or a visitor, must have a negative COVID-19 test within 72 hours prior to entering the Commonwealth. If the traveler cannot obtain a negative COVID-19 test, he or she must quarantine for 14 days upon his or her arrival in Pennsylvania or until he or she obtains a negative COVID-19 test result, whichever is earlier. The travel order takes effect on November 20, 2020. Importantly, this order does not apply to individuals who are travelling to or from Pennsylvania for work or medical reasons.
Continue reading “Pennsylvania and Philadelphia Introduce New Restrictions in Response to Rising COVID-19 Infections”
Most of the action in restrictive covenant cases occurs in the beginning of the litigation at the temporary or preliminary injunction stage when a company seeks to stop someone from doing something immediately. However, after the dust settles and the case moves forward to discovery and trial, money damages often take center stage. There are different types of monetary relief that might be available to a company that is harmed by a former employee’s unlawful competitive conduct – compensatory, liquidated, equitable, or punitive, to name a few. This edition of The Restricting Covenant Series discusses a potentially potent form of equitable monetary relief in restrictive covenant and duty of loyalty cases – disgorgement of an employee’s compensation based on that employee’s competitive and disloyal conduct.
Continue reading “Part 27 of the “The Restricting Covenant Series”: Disgorgement”
California is notorious in the non-compete world for its prohibition and extreme scrutiny of individual non-compete and other types of restrictive covenant agreements. These types of agreements between two businesses, however, have received less attention.
In August, the Supreme Court of California in Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 573 (Cal. 2020), examined an agreement between two businesses and found “that a rule of reason applies to determine the validity” of business-to-business non-compete agreements. While some commentary on Ixchel has examined the validity of business-to-business non-compete agreements, the larger focus of the Ixchel case was “whether contractual restraints on business operations or commercial dealings are subject to a reasonableness standard under [California Business and Professions Code] section 16600.” Id. at 581 (emphasis added). It is important to note that the Ixchel court reiterated California’s strong position that agreements not to compete related to the termination of employment are invalid and not subject to a reasonableness test. Id. at 583-584. The Ixchel court adopted the reasonableness standard from the Cartwright Act (California’s antitrust law which generally assesses whether an agreement promotes or suppresses competition) for application to business-to business non-competes and further stated that its decision potentially affects all California contracts “that in some way restrain a contracting party from engaging in a profession, trade, or business.” Id. at 581, 588.
Continue reading “California Non-Compete and Trade Secret Catch-Up”
Several new laws in California impact employers in a multitude of operational areas. From leave regulations to workers’ compensation, safety enforcement, wages and more, business leaders have much to research when it comes to compliance. All employers with operations in California should be aware of these new laws, understand how these laws may affect their operations and consult with counsel to address any questions on these new obligations.
Continue reading “New California Laws for 2021: What Employers Should Know”
In the best of economic times, some courts can be reluctant to grant immediate injunctive relief and enjoin an employee from working in order to enforce employee post-employment restrictive covenants. Now that we are in the midst of a global pandemic and an economic recession, that challenge has grown. Current economic considerations are causing some courts to weigh the “balance of harms” on injunctive relief applications in favor of employee defendants who are faced with the difficulty of finding other work in an economic downturn with high unemployment. Nevertheless, our review of recent decisions from around the country indicates that courts remain willing to consider injunction motions on an emergent basis to enforce restrictive covenants, particularly where there is a threat of trade secret misappropriation.
Continue reading “The Impact of COVID-19-Related Factors on Courts’ Enforcement of Employee Post-Employment Restrictive Covenants”
On September 17, 2020, Philadelphia Mayor Jim Kenney signed the Public Health Emergency Leave (PHEL) bill. The PHEL amends Chapter 9-4100 of the Philadelphia Code to create additional sick leave protections for Philadelphia employees during a public health emergency — specifically COVID-19.
Continue reading “Philadelphia Expands Paid Sick Leave During COVID-19”