This Election Day, joining the majority of states, Georgia became a state where restrictive covenants should be regularly enforced. Voters in Georgia approved a constitutional amendment permitting a new restrictive covenant law to take effect immediately. The new law is a sweeping change for the state. For the first time, Georgia has a law that identifies specific language necessary for enforceability, identifies the types of individuals and entities that can be parties to covenants, allows courts to “blue pencil” covenants, creates an undue hardship exception to the enforcement of covenants, and removes time restrictions on the protection of confidential information.
California Court Rules Arbitration Agreement Unconscionable, Company Didn’t Give Employee AAA Rules
Showing continued hostility toward employee arbitration agreements, the California Court of Appeal has struck down as unconscionable an arbitration agreement because the employer failed to provide the high-level employee a copy of the arbitration rules referenced in the agreement.
Washington Minimum Wage Goes Up in 2011
Washington’s minimum wage, currently the highest in the nation, will increase to $8.67 an hour effective January 1, 2011, an increase of 12 cents over the 2010 rate. The state minimum wage applies to agricultural and non-agricultural jobs in Washington, including tipped employees, as Washington’s minimum wage law does not recognize a tip credit.
New York State Construction Industry Fair Play Act Effective.
Under the New York State Construction Industry Fair Play Act, effective October 26, construction workers are presumed to be employees, and must be treated as employees, as opposed to independent contractors, unless they meet three criteria. The new section to the New York Labor Law takes aim at worker misclassification in the construction industry. After signing the legislation, Governor David Paterson said, “Studies have shown that up to 15 percent of New York’s construction industry is misclassified at any given time. It deprives the government of tax revenue at a time when it is sorely needed and places an unfair burden on law-abiding employers who play by the rules. It often deprives New York’s workers of crucial benefits such as overtime pay, workers’ compensation and unemployment insurance. This new law will be a powerful tool that hopefully will clean up this practice once and for all.”
California Supreme Court to Address Injunction Standards for On-Site Labor Activity
The California Supreme Court will address whether certain California statutes, which set strict standards for obtaining injunctions against labor unions, violate the First and Fourteenth Amendments of the U.S. Constitution because they afford preferential treatment to speech concerning labor disputes.
Court in New York Says No Trade Secret Protection for Outdated Information Available on Internet
Outdated information on a financial services industry recruiter’s database is not protectable as a trade secret where the company did not take adequate safeguards to protect the information and the information was available on the Internet, a federal district court in New York has ruled. Sasqua Group, Inc. v. Courtney, 09-cv-528 (ADS)(ETB), 2010 U.S. Dist. LEXIS 93442 (E.D.N.Y. Aug. 2, 2010) (report and recommendation), adopted, 2010 U.S. LEXIS 98621 (E.D.N.Y. Sept. 7, 2010). U.S. District Court Judge Arthur D. Spatt adopted, in its entirety, the report and recommendation of Magistrate Judge A. Kathleen Tomlinson.
U.S. Department of Labor and Puerto Rico Department of Labor Enter into Partnership Agreement
The United States Department of Labor’s Wage and Hour Division and the Puerto Rico Department of Labor and Human Resources, Labor Standards Division, have entered into a partnership agreement aimed at ensuring compliance by employers in Puerto Rico with both federal and commonwealth labor laws that apply on the Caribbean island.
Employer Testing of Applicant for Substance Not Approved by State is Willful Violation of Oklahoma Law
A federal court in Oklahoma has held that an employer willfully violated the state’s drug testing law, making it liable for damages, after it denied employment to an applicant for testing positive for a drug that is not among those listed in state regulations as approved for employment substance abuse testing
Proposed Hospitality Industry Wage Order Would Mandate Significant Changes for New York Restaurants and Hotels
On October 20, 2010, the New York State Department of Labor will submit a consolidated Hospitality Industry Wage Order for publication in the State Register. The Wage Order, if adopted, would impose additional costs on employers while modifying current standards in certain areas such as tip pooling, laundry allowances and spread of hours pay. A 45-day public comment period will follow publication.
Massachusetts Personnel Records Statute Amendment Update
The Massachusetts Attorney General’s Office has updated its earlier position communicated to Jackson Lewis and has informed Jackson Lewis that it will “probably” issue a guidance document about the amendment to the Massachusetts Personnel Records Statute. According to an official in the Attorney General’s Office familiar with the matter, “all options are on the table,” including a “clarification [or] advisory.” The Attorney General’s Office has no timeline for issuing its explanatory document, we were told.
Federal Appeals Court Upholds Broad Non-competition Covenant Signed in Sale of a Business in Georgia
While Georgia’s appellate courts generally disapprove of restrictive covenant agreements, the Eleventh Circuit Court of Appeals has reminded potential business buyers that Georgia courts will enforce broad restrictive covenant agreements when they are entered into ancillary to the sale of a business. Mohr et al. v. BNY Mellon, No. 10-11890 (11th Cir. 2010).
Update on Amendment to Massachusetts Personnel Records Statute
Despite requests by several law firms, the Massachusetts Attorney General has decided not to issue an interpretive guidance or other interpretive aid for a broadly worded amendment to the Massachusetts Personnel Records statute that places an affirmative duty on employers to notify employees when adding new information to a “personnel record” that could negatively affect the employee’s employment or lead to disciplinary action.