Pennsylvania

Is a non-compete agreement signed months after work begins enforceable?

June 1, 2011 | by Eric B. Meyer

I was reading a blog post from Jennifer L. Gokenbach at the Colorado Employer’s Law Blog, discussing how, as of yesterday, Colorado deems continuation of at-will employment to be sufficient consideration to support a non-competition agreement. In non-lawyer speak, that means that if an employee signs an agreement not-to-compete in Colorado after the employee starts working, on the condition that if the employee does not sign the agreement then the employee will be fired, the employer may later enforce that agreement.

That’s now the law in Colorado. Is that also the law in PA, NJ, and DE?

Delaware: Yes. Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del.Ch.1983).

New Jersey: Yes. Hogan v. Bergen Brunswiq Corporation, 153 N.J.Super. 37, 378 A.2d 1164 (App.Div. 1977).

Pennsylvania: No. An agreement not to compete with a former employer must be supported by new consideration; i.e., a change in the conditions of employment (e.g., a raise, promotion, or other financial benefit). Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279, 280 (Pa. 1974).

A new HELLA GOOD social-media-discovery ruling for employers

May 25, 2011 | by Eric B. Meyer

Last week, I reported that a Pennsylvania state court had ruled that a plaintiff did not have to provide access to her Facebook page during discovery by accepting a “friend” request from defense counsel. That same week, another Pennsylvania state court was asked to resolve whether a plaintiff’s “privacy rights” would trump a defendant’s request to access the plaintiff’s Facebook and MySpace accounts to discover facts relating to the plaintiff’s claim for damages.

Pennsylvania has become a hotbed of social-media-discovery litigation. Who knew?

I break down the latest decision, which I predict will be a “go-to” for defendants and courts alike, after the jump.

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Before taking medical leave in Cancun, read this…

May 23, 2011 | by Eric B. Meyer

Can a company create and enforce a policy that requires employees on paid sick leave to remain close to their homes, unless they obtain the company’s permission?

Would that policy infringe on an employee’s FMLA rights?

Good questions.

The answers are after the jump.

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Court bars Facebook “friending” in discovery

May 18, 2011 | by Eric B. Meyer

If, in a pending civil action, the defendant requests to Facebook “friend” the plaintiff in order to learn more about the plaintiff’s claims, must the plaintiff accept the friend request?

This is precisely the issue that a PA Court of Common Pleas recently faced.

So, what happened? Find out after the jump.

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Did you know? A prevailing defendant may recover e-discovery costs

May 17, 2011 | by Eric B. Meyer

Earlier this month, a Pennsylvania federal court held that plaintiffs in a contractual-dispute matter must reimburse the defendants, who prevailed on summary judgment, for all costs that the defendants incurred in the production of e-discovery.

Now that’s a hammer!

More on this decision and how it might apply in an employee lawsuit against an employer, after the jump.

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How long does an employee get to review a severance agreement?

May 10, 2011 | by Eric B. Meyer

If you guessed 15 minutes, you would be right, according to a recent decision from the Third Circuit Court of Appeals.

And you don’t need to point a gun at the employee’s head? A rusty fork in the doo-dads “knowing and intelligent” waiver based on a “totality of the circumstances” will suffice.

What are those circumstances? Find out after the jump.

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No unemployment benefits for woman fired for Facebooking at work

May 2, 2011 | by Eric B. Meyer

If you read this blog (or just about any other labor and employment law blog), you know that social media policies have fallen under recent heightened scrutiny because of the chilling effect they could have on employees discussing terms and conditions of employment (e.g., wages, hours, etc.) with each other online. Where there is no controversy, however, is that companies may discipline employees who shirk their job responsibilities and goof of online — especially while on the clock.

After the jump, it’s a decision from the Commonwealth Court of Pennsylvania denying unemployment compensation benefits to a nurse who was fired for using Facebook at work while she should have been medicating patients.

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Can PA employees access their personnel files upon request?

April 28, 2011 | by Eric B. Meyer

Hey all! As I promised last night on Twitter, I’ve got nothing left in the tank for this blog post after watching my beloved Bruins defeat the hated Habs in overtime of Game 7 last night.

So, I’ll keep this short and sweet.

After the jump, I answer a question that many HR folks in Pennsylvania have asked me? Do we have to give employees access to their personnel files upon request?

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Woman fired for fighting at a cheese plant wins bias claim

April 25, 2011 | by Eric B. Meyer

I can’t make this stuff up if I tried.

The Associated Press reports that the Pennsylvania Human Relations Commissions has ordered a local employer to pay $38,700 in back pay and interest to a female employee it fired for fighting at a cheese-making plant. According to the report, Rosalind Brown prevailed on her gender discrimination claim because she apparently received harsher discipline than male employees who had engaged in more egregious behavior:

The commission agreed with Rosalind Brown who claims it was unfair for her to be fired when two men who fought at the Dairy Farmers of America Inc. plant in West Middlesex received only 3-day suspensions. 1 of the men was injured when the other threw a 20-pound block of cheese.

Misclassifying an employee may void a non-compete agreement

April 19, 2011 | by Eric B. Meyer

In an unpublished opinion, the Third Circuit Court of Appeals denied a Pennsylvania company’s attempt to enjoin a former employee, who had entered into several restrictive covenants with the company, to compete directly against the company and solicit its customers.

What did this employer do wrong and how can you learn from its mistakes?

After the jump…

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