State & Local Employment Law Developments: Q3 2020

State and local governments are increasingly regulating the workplace. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments specifically related to COVID-19 are not included.) This quarter, state and local legislatures were particularly active in passing laws addressing employee classification, sexual harassment training, lactation accommodation, criminal background inquiries and a variety of unpaid and paid leaves.

For the full alert, visit the Faegre Drinker website.

Part 26 of “The Restricting Covenant” Series: COVID-19 Edition

The global COVID-19 pandemic continues to impact employers and their employees’ work activities in a variety of ways.  Millions of workers have been terminated, laid off or furloughed.  Companies have shifted to remote workforces either partially or completely.  Courts around the country continue to grapple with suspended or stayed proceedings.  This pandemic is presenting some unique challenges and complications to many areas of the law, including restrictive covenant law, as discussed in this COVID-19-themed edition of The Restricting Covenant Series.

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State & Local Employment Law Developments: Q1/Q2 2020

State and local governments are increasingly regulating the workplace. In the first and second quarters of 2020 alone, legislatures were particularly active in passing laws addressing sexual harassment training, discrimination including hair discrimination, criminal background inquiries, salary history, and a variety of unpaid and paid leaves. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments specifically related to COVID-19 are not included in this update.)

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With Pennsylvania Non-Competes, As in Life, Timing is Everything

In Pennsylvania, it has long been known that waiting until after the start of employment to have an employee sign a non-competition agreement comes with the real risk that the agreement will be unenforceable for lack of consideration.  Last week, the Pennsylvania Supreme Court provided definitive guidance on the issue in Rullex Co., LLC v. Tel-Stream, Inc., et al., holding that a non-competition agreement entered into after an employee commences employment fails for lack of consideration unless the essential provisions of those restrictions were agreed to before the employee started work.

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Top Four Considerations for Employers Seeking to Enforce Restrictive Covenants During a Global Pandemic

The global coronavirus pandemic has had a multitude of effects on how employers conduct business and manage their workforces. But as employees start to return to work, employers must be mindful of how to address those who leave and potentially violate their noncompetition agreements. As we settle into the “new normal,” the Restrictive Covenant team with Faegre Drinker’s Labor & Employment group has identified four considerations for employers seeking to enforce restrictive covenants and protect trade secrets.

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Delaware Chancery Court Declines to Blue-Pencil Overly Broad Noncompete Agreement; Casts Doubt on Choice of Law Provisions

A recent Delaware Chancery Court opinion has elucidated Delaware’s approach to judicially modifying, or “blue-penciling,” overly broad noncompete agreements and deferring to parties’ choice of law provisions. The case, FP UC Holdings, LLC, et al. v. James W. Hamilton, Jr., et al., C.A. No. 2019-1029-JRS (Del Ch. Mar. 27, 2020), highlights the importance of drafting well-tailored restrictive covenants, and shows that even in Delaware – where employers often have been reassured by the safe harbor of courts’ relative willingness to blue-pencil problematic agreements and apply Delaware law to fact patterns that have developed in other states – employers must make careful drafting and choice of law decisions. It also emphasizes that if an employer’s intent is to litigate in Delaware, the employer should do so from the beginning, without acquiescing to another court’s jurisdiction.

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