I meant to write about this a week or so ago after I saw Dan Packel’s article at Law360. But, then, I got sidetracked with a bunch of NLRB stuff. Until, yesterday, Lizzy McLellan’s article at The Legal Intelligencer brought me back.

So, here’s the deal. The basic rule in PA has always been that, for a non-compete to be enforceable, it needs to be entered into when employment begins (i.e., as consideration for offering employment), or there needs to be some independent consideration to support it (e.g., a raise, bonus, promotion, etc.).

However, some outlier judicial decisions in PA have concluded that PA’s Uniform Written Obligations Act magically adds consideration to any agreement with the words “intending to be legally bound.”

But, back in May, the PA Superior Court disagreed and held that where the employer provided the employee with no benefit or change in job status when the employee signed the non-compete, even if the agreement states that the parties “intend to be legally bound” by its terms, a restrictive covenant is not enforceable.

Now, the Supreme Court will determine whether those five little words are, indeed, magic.

Obviously, if the Supreme Court sides with the company, it will create the proverbial game changer, by allowing companies to require employees to enter into restrictive covenants in exchange for zero consideration.

We’ll see what happens.

If you’re on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell ‘em Meyer sent you.

If you entered a time machine a few months ago and came out today to read this post, you missed a lot.

The Kansas City Royals made the World Series. Grammy Award winning rapper Eve wed entrepreneur Maximillion Cooper at Cala Jondal Beach in Ibiza, Spain. And a big-time Ebola scare.

Yeah, that Ebola scare was really something. But, it kinda just came and went, didn’t it? We haven’t had a new Ebola case in the U.S. in months, which makes the timing of Monday’s release of “Public Guidance on Protecting Civil Rights While Responding to the Ebola Virus” from the U.S. Department of Justice a bit off.

Still, do heed the three tips from the Guidance:

  1. Ensure that there is no bullying, harassment or other unlawful discrimination directed at people who are or are perceived to be from an African country, of African descent or against people who have the Ebola virus or are perceived as having the virus.
  2. Provide information in languages other than English.
  3. Provide access to information and services to people with disabilities.

Of course, if you reasonably suspect that an employee has Ebola, recently traveled to a high-risk area, or came into contact with someone with Ebola or returning from a high risk area, you should follow the applicable state and CDC control measures to protect both your workplace. If you are concerned about a disability-discrimination claim, as long as you act reasonably, you should ok. But you may want to consult the EEOC’s pandemic guidelines and a lawyer.

After two days of organized-labor-themed oxygen-sucking blog posts, I’m gonna lighten it up today, with some holiday co-worker gift-giving ideas for you.

Taking my cue from CareerBuilder’s 2014 list of the most unusual holiday gifts exchanged in the workplace, please consider nixing these from your list:

  • A box of Hot Pockets®.
  • A chess piece (just one piece, not a set).
  • A fire extinguisher.
  • A voucher for a free lawn game of the co-worker’s own invention.
  • A turquoise leather vest.
  • Zombie action figures.
  • A Ziploc® bag with coffee (enough to make one pot).
  • A ‘gun of the day’ calendar.
  • A bag of chips.
  • A Christmas ornament with the co-worker’s and spouse’s photos on it.

If you are looking for a holiday gift for yours truly, I was over on perpetualkid.com, and a few items to consider:

    Or, if you haven’t done so already you can just vote for my blog as the top Labor and Employment Law Blog in the ABA Blawg 100.

    Cue the haters.

    Following a decision last Thursday permitting employees to use company email to badmouth you and unionize, the National Labor Relations Board ended last week by passing a new rule, which, in its words, updated “its representation-case procedures to modernize and streamline the process for resolving representation disputes.”

    In other words, faster union elections and more of ‘em.

    Details on this new rule and what employers can do about it, after the jump…

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    YES, THAT’S RIGHT. NO BIG DEAL.

    Hey, if you’re a big employment dork like me, (vote Handbook!), you’ve already read a bunch of blog posts, and you’ll read several more about how the sky is falling after yesterday’s NLRB decision, in which the Board held that employees may use company email to discuss the terms and conditions of employment.

    Yes, this decision extends to any workplace — not just unionized workplaces — that is covered by the National Labor Relations Act. And, yes, it may help your employees communicate with one another to form a union (gasp!) or otherwise discuss working conditions, but…

    Seriously, you gots to chill.

    This is no game-changer.

    First, this rule only applies to employee communications on non-work time. So, you don’t have to pay employees to talk trash about the company. If your employees don’t have access to work email, this decision does not require you to give it to them.

    Second, do you really think your employees strictly adhere to your computer-use policy that says that company electronic equipment should be used for business purposes only?

    Third, I find it hard to believe that employees who wish to unionize would prefer to use company email as a way to discuss forming a union, versus other equally (or more) effective means (e.g., social media, personal email, text message, phone, face to face) that are far less susceptible to employer interception.

    But, above all, if you run operate a company that communicates with its employees, values them not just in terms of the dollars you pay, but the respect you give, then unionization will be the furthest thing from their minds.

    And if discussions over company email are enough to convince your workforce to unionize, then you deserve to have a union.

    Monday kinda sucked for the EEOC.

    The agency that made scrutiny of employee background checks a top priority under its current Strategic Enforcement Plan has been ordered by a federal court to turn over its own background check policy to an employer whom it is suing for a criminal background check policy that allegedly had a disparate impact on black employees.

    *** smiles, grinds teeth, and inhales deeply ***

    More after the jump…

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    When you’re part of the bloggerati, just one half-step below the illuminati, well, let’s just say membership has its privileges. AMEX taupe card, rinkside seats to the local roller derby, earlybird specials, the world is your oyster.

    And, at work, the staff sees me coming and runs the other way throngs to my office. Indeed, it’s gotten so bad, that we had to install security machines to control ingress and egress. While my firm can’t wait for me to jump ship loves the attention that my blog brings — remember you can vote for my blog in the ABA Blawg 100 — the folks who sign my mega-paycheck expressed concern that it would also have to compensate our non-exempt employees for the spent clearing security.

    Thankfully, yesterday, the Supreme Court, in this opinion, unanimously ruled that the time these folks spend clearing security is not compensable under the Fair Labor Standards Act. That’s because the time our staff spends waiting in line to clear security is neither indispensable nor integral to their principal activities in the office. They get paid to do legal work; not wait in line. And, absent the security, these folks could still do their jobs. And, even though my firm requires our awesome staff to clear security because of my blogging greatness and related fame and notoriety, the Portal-to-Portal Act exempts employers from FLSA liability for this this preliminary and postliminary time.

    Although in reality, our firm had no direct stake in yesterday’s SCOTUS ruling, and I made up everything in this post, except for the SCOTUS opinion, hopefully, you’ve learned a thing or two about the FLSA and compensable time.