Category Archives: Employee Mobility

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The Danger of “Autofill” and Inadvertent Disclosure in Employee Mobility Matters

The Federal Rules of Civil Procedure were amended in December 2015 to help mitigate the risk of inadvertent disclosure of privileged information present in virtually every litigation. Such risk, however, is particularly acute in litigation involving trade secrets, non-competition, non-solicitation, and/or non-disclosure agreements. Employee mobility litigation poses a special risk for inadvertent disclosure because of … Continue Reading

California Further Restricts Employers from Trying to Enforce Non-Compete Agreements

Are you an employer based outside of California with employees who live or work in California? If so, you will want to take note of a new California Labor Code provision that becomes effective on January 1. Not surprisingly, companies headquartered outside of California generally have employment agreements that are purported to be governed by … Continue Reading

No-Poach Agreements Still Illegal, According to the FTC/DOJ

Last month, the Federal Trade Commission and the Antitrust Division of the Department of Justice issued “Antitrust Guidance for Human Resource Professionals.”  The guidelines are a helpful reminder that any agreement among competing employers to limit the employment or compensation of potential hires may violate federal antitrust laws. “Competing employers” in this context means any … Continue Reading

White House Call to Action to Limit Non-Competes

Earlier this year, the White House and Treasury issued reports criticizing the widespread use of non-compete agreements. They found that such agreements affect nearly one in five U.S. workers, or approximately 30 million people. Last week the White House expanded its efforts, issuing a Call to Action for states to reform and limit non-compete agreements, … Continue Reading

Netflix Responds – CA Law does not Permit Employment Contracts?

Just in late last week: Netflix counters the Fox lawsuit with a jab of its own – Netflix claims that the employment agreements that Fox utilizes and its practices concerning those term agreements run afoul of California law. Since neither former Fox employee was bound for more than 7 years under an employment agreement (and … Continue Reading

Fox v. Netflix – Employee Mobility in a Transforming World

At first glance, you wouldn’t believe Netflix (formerly known as a distributor) would be a competitor of 20th Century Fox (known as a producer). If anything, they should be doing business with one another. But times change, and in this situation, the transforming entertainment industry pits Netflix (now alleged to be “an internet-based television and … Continue Reading

Three Reasons Why Employees Might Pose the Biggest Threat to a Company’s Trade Secrets

  For many people, “trade secret theft” evokes an image of a technological superspy, a James Bond meets Edward Snowden. But the more common, less dramatic and yet more dangerous threat to a company’s proprietary information comes from within.  Current and departing employees likely are more threatening to a company’s trade secrets than are foreign … Continue Reading

Employees in Transit(ion): Why Employers Need to Understand the Zika Virus

Here at Trade Secrets and Transitions, we know that an employee in transition often means an employee in transit – from one office to another, or one city or state to another. When it’s one country to another, the transition may present different kinds of challenges. The latest new challenge for work-related international travel is the global health … Continue Reading

Not Quite Fun in the Sun: What Happens to Accrued Vacation Leave When the Employment Relationship Ends

Part Two: State-Specific Provisions and Employer Policies for Vacation Payout at the Conclusion of Employment In states that allow “use-it-or-lose-it” vacation leave policies when employment ends, the details of your policy are key. This second installment of the two-part series on vacation leave payout explores the state-specific provisions for leave forfeiture, and the importance of an … Continue Reading

When “Pay to Not Play” Might Not Work, but “Less Is More” Might

Employers are constantly looking for ways to fortify non-competes against attacks on their enforceability. Narrowing the range of the prohibited activity (“you may not do for a competitor what you did for us”) generally solves the “janitor” problem (“Judge, under the express language of the company’s non-compete, my client, who was the Director of Whatever, … Continue Reading

Not Quite Fun in the Sun: What Happens to Accrued Vacation Leave When the Employment Relationship Ends

Part One: Mandatory Leave Payout and Its Relationship to Traditional “Use-It-Or-Lose-It” Policies Bob decides the grass is in fact greener at another company, and resigns. Carla is fired for insubordination. Dan wins the lottery and quits without notice. Each now is demanding payment for accrued but unused paid vacation leave. While they worked for you in three different … Continue Reading

When Medical Ethical Obligations Conflict with Business Rights: Departing Physicians’ Right to Inform Their Former Patients of Their Departure vs. a Medical Practice’s Right to Protect Its Trade Secrets

With merger and acquisition activity on the rise among physician practices and hospitals, the big question the medical groups, hospitals, and physicians are asking is: Does a physician leaving a medical group/hospital have the right to inform his or her patients of that fact? Departing physicians argue that they have an ethical obligation, based upon … Continue Reading

If You Can’t Get a Non-Compete, Why Not Sell the List?

The proposition that a customer list can constitute a trade secret is well settled and unremarkable. But because California strongly protects the right to compete, a former employee can lawfully use a trade secret customer list to “announce” a new business affiliation. The question of whether an announcement is a solicitation, or a cover-up for … Continue Reading

Unsigned, Unsealed, Undelivered, but Undaunted: How to Enforce an Unsigned Noncompete

If you haven’t yet had this sinking feeling, the odds are someday you will. One of your top employees is leaving. To go to a competitor. With no notice. The employee is at-will. You figure: How can s/he do this? We made him/her sign a noncompete. To prepare for your call to your lawyer, you go to the file.  There … Continue Reading
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