Employment Law Blog

Guns In The Workplace, Part 2

    Even though the Florida state legislature does not officially convene until March, an NRA backed bill is drawing attention and criticism from several fronts.  The bill would permit employees to keep loaded guns and ammunition in their cars on company premises and it would expose employers that banned workers from doing so to third degree felony charges, punishable by up to five years in prison or a $5,000 fine. "Guns 'n' Bosses"

    This bill is causing concern, and not just to liberal groups traditionally in opposition to the NRA.  Business lobbies are working on opposition to this bill, given the constraints it puts on employers to decide what their safety policies will be. See "Employers Fire Back at Law Making it a Felony to Ban Guns on Company Premises".  One serious concern is what happens in the traditional scenario where a manager escorts a terminated or suspended employee out to her or his car?  No one is saying this bill will guarantee an armed standoff, but it reasonably raises anxiety for human resources managers everywhere.

    However, most businesses do not want to be individually identified as being against this bill, due to fear of the repercussions from the NRA.  These fears are not baseless: the NRA called for a boycott of ConocoPhillips oil company when it challenged similar legislation in Oklahoma.  “NRA Misfires With Gun Bill” Some of ConocoPhillips’ co-plaintiffs in the suit challenging the legislation have dropped out.

    The NRA wants this type of legislation to be law in all 50 states, and is working towards making the Florida proposal a prototype for introduction elsewhere.  The Florida bill works out some issues in similar legislation already passed in Alaska, Minnesota, and Oklahoma.  For instance, it grants immunity to employers from lawsuits filed by anyone injured in a workplace shooting as long as the employer has made a good faith effort to prevent violence in the workplace.  The scope of this immunity is not clear.

I’m sure there will be more to come.

Are NonCompete Agreements Valid?

The issue of noncompetes, nonsolicitation, and nondisclosure agreements comes up often in an employment law practice. Just in the last month I performed work on these issues for three different clients. Recently, there have been several more public disputes on these issues – Microsoft and Google (“ABC News:  Microsoft, Google Settle Over Employee”), for example. The biggest problem I encounter is the employee’s belief, based on something their cousin’s brother’s attorney told them once, is that a noncompete is probably not worth the paper it is written on.

At least in the state of Washington, the answer to the question “is this noncompete valid?” is a typical, legalese answer of “maybe.” Non solicits and non disclosures are typically more favored, and I’ll address them at the end of this post.

Washington courts will enforce a “reasonable” noncompete. In general, the following three prong test applies: (1) Whether the restraint on the employee is necessary for the protection of a legitimate business interest or the goodwill of the employer; (2) whether the restraint imposed upon the employee is any greater than reasonably necessary to secure the employer’s business interest or goodwill; and (3) whether the degree of injury to the public is such a loss of service and skill of the employee as to warrant a refusal to enforce the noncompete. Furthermore, as these types of “agreements” are contracts, there must be consideration to support the contract. (Consideration being what each side gives up and gets in return for executing the contract. An interesting issue arises when the noncompete is presented in the middle of employment, not at the beginning or in exchange for a severance payment. (See Supreme Court Requires Washington Employers to Specifically Bargain for Agreement Not to Compete  and Labriola v. Pollard Group, Inc. 152 Wn.2d 828, 100 P.3d 791 (2004)).

    All three of these items are very fact based, open to interpretation and often lead to contrary results. “Tiptoeing Through The NonCompete Legal Minefield”| Boston Business Journal  It also is an area where the law varies wildly from state to state. Last time I checked (and keep in mind I am NOT licensed in these states), California had pretty much regulated noncompetes out of existence; Florida’s position seemed to change with almost every new legislative session; Massachusetts allowed enforcement for some, but not all, professions; and Oregon had created a very specific statutory provision to guide the interpretation of noncompetes.

    In general, Washington courts are more likely to enforce nonsolicitation and nondisclosure agreements. The theory being, I think, that it is one thing for a business to tell someone that they cannot work in their field, and quite another for a business to protect itself from piracy (of employees, knowledge, secrets).  Even if the clause does not make specific reference to it, Washington courts look to the Uniform Trade Secrets Act, RCW 19.108.010 et seq., for guidance. “[A] former employee may use general knowledge, skills and experience acquired during the prior employment in competing with a former employer. However, an employee may not use or disclose trade secrets belonging to the former employer to actively solicit customers from a confidential customer list.” Ed Nowogroski Ins., Inc. v. Rucker, 137 Wn.2d 427, 450, 971 P.2d 936 (1999).