Employment and Labor Law

By Fred Alvarez and Laura Seegal. Originally Published in the Daily Journal, February 6, 2019.

It’s time to take another hard look at whether it’s worth it for employers to ask their departing employees not to recruit anyone away after they leave. Nobody wants their former employees to raid the ranks of their current employees, but they don’t want to be forced to defend an unfair competition lawsuit in California either. By the same token, nobody tempted to recruit their former colleagues wants to be sued for breach of contract or to have their new employer sued for interference with contractual relations. The need to balance those risks is becoming ever more acute.

Read more: Another Warning Shot on Employee Nonsolicit Agreements

Authors: Jeremy Mittman and Samuel Richman

In a blow to the transportation industry, last week, the U.S. Supreme Court ruled that the trucking company, New Prime Inc., cannot compel arbitration in a class action alleging it failed to pay independent contractor driver apprentices minimum wage.  In New Prime Inc. v. Oliveira, the Court held that transportation workers engaged in interstate commerce, including those classified as independent contractors, are exempt from the Federal Arbitration Act (the “FAA”).  Justice Neil Gorsuch wrote the Court’s 8-0 opinion (Justice Brett Kavanaugh was recused from the case).

Read more: Keep On Truckin': New Prime Inc. v. Oliveira

Author: Tim Forer

It's being hailed by the Government as the "largest upgrade in workers' rights in over a generation", taking forward almost all the recommendations of the Taylor Review, but are the proposed changes really as dramatic as that? We consider the main proposals and how significant they might be.

Read more: Proposed reform to Employment law rights – what are the most significant?

Authors: Sean E. O’Donnell and Patrick Johnson

As most labor attorneys know, California has a strong public policy – codified in California Business & Professions Code Section 16600 – disfavoring post-employment covenants not to compete. While out-of-state employers have tried to avoid or minimize California’s prohibition on non-competes by using choice of law provisions to select a more favorable jurisdiction’s law, those jurisdictions (including New York) that follow the Restatement (Second) of Conflict of Laws (the “Restatement”) often find that California’s fundamental public policy prohibiting restrictive covenants overrides the parties’ contractual choice of law. See, e.g., Ascension Ins. Holdings, LLC v. Underwood, No. CV 9897-VCG, 2015 WL 356002 (Del. Ch. Jan. 28, 2015) (declining to enforce Delaware choice-of-law provision for Delaware LLC where application of Delaware law would violate California’s “fundamental policy” prohibiting post-employment restrictive covenants).

Read more: New York Employers May Be Able to Enforce Restrictive Covenants Against California Employees… But...

An applicant whose claim was “doomed to fail”, and was pursued by her to inflict as much damage as possible on her former employer, has led to severe consequences when the Fair Work Commission ordered her to pay indemnity costs to her former employer.

Partner, David Ey and Senior Associate, Gemma Twemlow review the decision.

The Fair Work Commission has ordered indemnity costs against an office manager who pursued an unfair dismissal claim that was ‘doomed to fail’ and was motivated by trying to inflict maximum harm and seek revenge against her former employer.

Read more: Rubbing salt into the wound of an applicant in unfair dismissal proceedings