On August 13, 2021, Illinois Governor JB Pritzker signed into law Senate Bill (SB) 672, an amendment to the Illinois Freedom to Work Act. While the law codifies substantive Illinois common law on restrictive covenants, it also sets forth new and important limitations and requirements regarding the use of noncompete and nonsolicitation agreements.
On May 25, 2021, Nevada Governor Steve Sisolak signed into law Assembly Bill (AB) 47, which amends Nevada’s noncompetition statute, NRS 613.195 and the Nevada Unfair Trade Practices Act. The changes will go into effect on October 1, 2021.
On July 9, 2021, President Biden signed a sweeping executive order aimed at promoting competition in the economy. The order includes 72 initiatives that President Biden says will address pressing competition problems and promote long-term growth across the economy. Among the initiatives is a direction to the Federal Trade Commission (FTC) chair to “consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”
In Van Buren v. United States, No. 19-783 (June 3, 2021), the Supreme Court of the United States recently waded into the meaning of the Computer Fraud and Abuse Act’s (CFAA) “exceeds authorized access” prohibition.
The Illinois General Assembly recently approved House of Representatives Amendment 1 to Senate Bill (SB) 672, which would significantly reform noncompete and nonsolicitation law in Illinois. The bill will now go to Governor JB Pritzker, who is expected to sign the bill into law.
On May 21, 2021, Oregon Governor Kate Brown signed Senate Bill (SB) 169, making substantial changes to the statute that limits noncompetition agreements with Oregon employees, Oregon Revised Statutes (ORS) 653.295. The changes apply to any employee noncompetition agreement entered into on or after the effective date of the act.
The Supreme Court of Pennsylvania recently held unenforceable a no-hire provision in a service contract between a logistics company and a trucking firm. In Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et. al., the court reasoned that the no-hire provision at issue was overly broad and undermined fair competition for employees in the shipping and logistics industry.
On April 9, 2021, the Massachusetts Supreme Judicial Court (SJC) ruled that an employee may be liable to his or her employer under the Commonwealth’s unfair and deceptive trade practices statute—which authorizes an award of double or treble damages for willful violations, as well as costs and attorneys’ fees—for actions that the employee engaged in during the course of his or her employment.
The recent decided case of Duplessis Buick-GMC Truck, Inc. v. Chauncey offers Louisiana employers a powerful cause of action against highly trusted former employees for breach of fiduciary duty—one that is akin to an action to enforce noncompete agreements or trade secret laws but without statutory constraints.
Just as the calendar was turning to 2021, the Council of the District of Columbia threw District of Columbia employers a late-breaking curveball that most did not see coming. The Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) was passed by the Council on December 15, 2020, and signed by Mayor Muriel Bowser on January 11, 2021. The legislation, which will create a near-total ban on noncompete agreements, took the Washington, D.C., business community by surprise. The final text is substantially broader than the more modest bill that was proposed originally, and the legislation goes well beyond laws enacted in other jurisdictions to curtail the use of post-employment noncompete agreements.
In 2016, Illinois enacted the Illinois Freedom to Work Act (IFWA). In doing so, it became one of the first states to pass legislation in response to the Obama administration’s Call to Action, which asked states to amend their restrictive covenant laws to, among other things, ban covenants not to compete for workers under a certain wage threshold.
With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden’s administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.
Employers can expect an active 2021 Connecticut General Assembly since the 2020 legislative session was cut short. (The session lasted a little over a month before it was suspended on March 12, 2020, due to the pandemic and then officially adjourned on May 6, 2020.)
Despite its well-deserved reputation as an employee-friendly jurisdiction, the District of Columbia is absent from the list of “blue states” that have adopted legislation limiting the use of noncompete agreements. Over the last few years, states such as Illinois, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, Virginia, and Washington have enacted such laws.
In May 2019, Washington enacted restrictions on noncompetition covenants, which we wrote about in our article, “Washington State Governor Signs Legislation Restricting Noncompetition Covenants,” and which took effect on January 1, 2020.
In Pennsylvania, noncompetition agreements must, among other things, be supported by adequate consideration to be enforceable. It is well established that an initial offer of employment constitutes adequate consideration. It is also well established that a noncompetition agreement presented to an employee after the start of employment must be supported by additional consideration, beyond the mere continuation of the employment relationship. But what about the regularly arising occurrence in which an agreement is orally agreed in connection with an initial offer, but isn’t signed until after the first day of work?
Significant new requirements for physician noncompete agreements in Indiana took effect on July 1, 2020, including mandatory language allowing a physician to purchase “a complete and final release” from a noncompete agreement “at a reasonable price.” The law also includes several provisions related to notices that employers must provide to patients and doctors when a physician’s employment has terminated or contract expires.
On December 18, 2019, in American Consulting, Inc. d/b/a American Structurepoint, Inc. v. Hannum Wagle & Cline Engineering, Inc., et al., the Indiana Supreme Court provided clarity about when liquidated damages become unenforceable penalties.
As employers reopen their businesses following closures or reductions in operations required during the COVID-19 pandemic, many are grappling with the fraught and complex task of bringing laid-off or furloughed employees back to the workplace. Among the many issues that such employers will need to deal with in onboarding those employees is whether and to what extent they will need to renew their restrictive covenants agreements with employees who had such agreements before the pandemic.
On April 9, 2020, Governor Ralph Northam signed House Bill (HB) 330, Virginia’s first law banning covenants not to compete against “low-wage employees.”
In response to the COVID-19 pandemic, some parts of the country are now in the third month of a lockdown. As a result of the lockdown, a large portion of U.S. businesses quickly transitioned their workforces to telework in the opening weeks of the pandemic. This abrupt shift to work-from-home disrupted many employers’ well-established protocols and practices for protecting confidential information and trade secrets, exposing this sensitive information to a heightened risk of theft.
Many employers have national and international workforces. When entering into contracts with employees, inclusion of a choice-of-law provision is important for determining what jurisdiction’s laws will apply if one of the parties breaches the agreement. While Massachusetts generally honors contracting parties’ choice as to which law will govern their relationship, there are exceptions to that general rule. In NuVasive, Inc. v. Day, the U.S. Court of Appeals for the First Circuit enforced a Delaware choice of law provision against a Massachusetts employee and rejected his arguments that one of Massachusetts’s recognized exceptions should apply.
The spread of the coronavirus disease 2019 (COVID-19) has led to changes regarding many legal issues. Despite the changes, companies still need to protect confidential information, goodwill, customer relationships, and competitive marketplace positions. The pandemic raises a variety of issues to consider for restrictive covenants. Employers may want to keep these challenges in mind and tread carefully.
The United States Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) warned employers in a joint statement issued on April 13, 2020, that they are “on alert” and working together to monitor employer collusion that exploits the COVID-19 pandemic in order to engage in anticompetitive conduct or fraud. The agencies specifically called out essential businesses and employers of frontline employees, staffing companies (including medical travel and locum tenens agencies), and recruiters.
It is now clear what choice of law rule applies to claims brought under the North Carolina Trade Secrets Protection Act (NCTSPA). No North Carolina appellate court had ever answered that question prior to the Supreme Court of North Carolina’s opinion in SciGrip, Inc. v. Osae & Scott Bader, Inc., No. 139A18 (February 28, 2020), a case defended by Ogletree Deakins lawyers Phillip J. Strach and Brodie D. Erwin.
The Illinois Workplace Transparency Act (WTA) (Public Act 101-0221) is designed to protect employees, consultants, and contractors who truthfully report alleged unlawful discrimination and harassment or criminal conduct in the workplace by prohibiting nonnegotiable confidentiality obligations, waivers, and mandatory arbitration of allegations of discrimination, harassment, or retaliation.
The Massachusetts Supreme Judicial Court (SJC), the Commonwealth’s highest court, recently clarified the standards applicable to analyzing nonsolicitation and anti-raid restrictive covenants following the sale of a business—an area of law where state appellate court jurisprudence had been lacking.
On December 3, 2019, in Heraeus Medical, LLC v. Zimmer, Inc., the Indiana Supreme Court reaffirmed the “blue pencil doctrine,” likening the doctrine to an eraser and stating that Indiana courts may only delete language from overbroad restrictive covenants; they cannot reform or add to such agreements.
The Louisiana Second Circuit Court of Appeal recently held that a noncompetition provision under La. R.S 23:921 affecting a former member of an accounting limited liability company (LLC) could be reformed when the scope of the defined business and geographic limitation was overly broad.
A new state law in Maryland now prohibits employers from requiring low-wage employees to enter into noncompete agreements. Maryland Senate Bill 328, which took effect on October 1, 2019, prohibits employers from obligating any employee who earns less than $15.00 per hour or $31,200 per year from entering into an agreement that restricts the employee’s ability to work with a new employer in the same or similar business.