Category Archives: Common Law Claims

Quirky Question # 160: Non-Competes and Public Policy

Question:

We are a nationwide company with offices and employees in nearly every state. One of our primary growth areas is California. We understand that California courts are generally inhospitable to post-employment restrictive covenants, including non-competes. But, we are trying to have uniform policies throughout our organization. Consequently, we still have confidentiality and non-compete language in our employees’ contracts, even for those who work in California.

Recently, one of our employees left our company and joined a competitor, also located in California. We understood that it would be difficult to enforce the non-compete so we simply called our competitor and pointed out our concerns regarding both our non-disclosure and our non-compete obligations. We advised our competitor that we would appreciate it if they would abide by the spirit of our non-compete and noted that we would reciprocate if provided the opportunity with regard to our competitor’s employees.

Our competitor terminated our ex-employee soon thereafter. Her lawyer has now written us to state that we have violated public policy. What is he talking about? We did not fire the employee. We just had a friendly chat with our competition. Answer→

Seven Observations On Leadership, Vice President Walter Mondale

Set forth below is an article by Vice President of the United States, Walter Mondale.  More than any person I’ve ever met, Mr. Mondale is perfectly positioned to opine on leadership.  His lengthy public service includes roles as Minnesota Attorney General, U.S. Senator, Vice President of the United States and U.S. Ambassador to Japan.  In these positions, he has been a remarkable leader himself and has had the opportunity to interact with leaders from the U.S. and around the world.

At the end of the article is a video of an interview we had the pleasure to conduct of Mr. Mondale.  In our discussion, Mr. Mondale expands on the ideas below and shares his insights on a wide variety of topics that touch on leadership.  We hope you enjoy his observations. Answer→

Everything You Wanted to Know About Leadership . . . and Should Have Asked Your Kids

The article was written by Brian McDermott, who is the self-described, Chief Storyteller, at his consulting firm,GrowthWorks Inc., where he specializes in helping leaders facilitate change, innovation and improvement.  Brian is the co-author of Leading Innovation: Creating Workplaces Where People Excel So Organizations Thrive, and Time Out for Leaders: Daily Inspiration for Maximum Impact.  Brian currently is working on a new book which mirrors the title of this article, Everything You Ever Wanted to Know about Leadership . . .  and Should Have Asked Your Kids.

Brian Blogs at http://growthworksinc.typepad.com/growthworks_inc/.  He would love to hear your kid-inspired lessons about life and leadership: bmcdermott@growthworksinc.com. Answer→

Strip Search, Quirky Question # 127

Quirky Question # 127:

Our company runs fast food restaurants.  Recently, we received a call from a local police department, advising us that a patron had just had a wallet stolen during a visit to one of our restaurants.  The officer provided a description of the suspected thief, matching very closely the appearance of one of our female employees who was working at the time.

After we explained to the officer that his description appeared to identify one of our female employees, he asked to speak with her.  We had her come back to the office to participate in the phone conversation with the policeman.  Apparently, he felt that she had concealed the wallet somewhere on her person and advised her that she would have to submit to a strip search, either at the restaurant or at the police station.  She agreed to be searched in this manner at the restaurant.  The policeman gave our female store manager very explicit instructions about how the search should be conducted.

After this incident had dragged on for some time (several hours), we began getting suspicious about whether this was really legitimate.  We gave the employee her clothes back  (they had been taken into another room at the restaurant) and let her leave for the day.

She now has sued the company under a number of legal theories.  Can we be held liable?  After all, we were instructed what to do by a police officer (or at least someone we thought was a police officer).  Moreover, our employee agreed to the strip search at the restaurant, rather than going down to the police station.  What advice do you have?
Answer→

Employee Relationships and Protective Orders, Quirky Question # 79

Quirky Question # 79:

Like many companies, we periodically have situations where two of our employees get romantically involved.  (We don’t have a non-fraternization policy and don’t attempt to limit these relationships in any other way.)  Sometimes, the two involved employees have a great relationship and ultimately get married.  Some times, the relationship ends, but the employees seem to work things out amicably and it doesn’t affect their interaction at work.  Some times, it gets ugly.

I’m writing about one of the ugly situations.  For reasons I don’t fully understand, but about which I can draw reasonable inferences, one of our female employees has obtained a Protective Order against her former paramour.  I think they were living together, though our HR records show them as having two difference addresses.  Our female employee provided me with a copy of the Protective Order and asked for my assistance in “keeping that asshole, XXXX, away from me at work.”  She also advised me, in colorful language, that if I don’t keep him away from her, she intends to call the police and have XXXX removed from the worksite.

Frankly, my reaction is “life is too short” for me to have to deal with this nonsense.  Both employees are at-will employees.  My inclination is either to fire one of them or both of them.  Do you seen any problems with either of these approaches? Answer→

Domestic Abuse and Wrongful Discharge, Quirky Question # 66

Quirky Question # 66:

One of our employees recently advised us that she and her two children were suffering from domestic violence by her husband.  She requested us to provide her time off to move herself and her children out of the abusive situation at her home.  Frankly, we were somewhat skeptical so we denied her request.  Not long thereafter, her husband beat up one of her children so severely that he required hospitalization.  Again, she requested time off to move herself and her children, this time into a shelter.  Needless to note, we felt very badly about what happened and granted her request.

About a month after returning from leave, her supervisor demoted her.  A few months later, he discharged her.  She is now suing our firm for wrongful termination in violation of public policy?  Is this a legitimate claim in Washington?  If so, what are our risks. Answer→

Rights Provided by Employee Handbook, Quirky Question # 54

Quirky Question # 54:

We have an employee who has missed a fair amount of work due to various surgeries.  As set forth in our handbook, we offer FMLA leave for employees who have worked 1250 hours in the preceding 12 months.  When we were informed that our employee would need to miss additional time due to some follow-up surgeries, we belatedly explored the issue with our attorneys.

Our lawyers advised us that although our employee had worked the requisite number of hours under the FMLA, he was not FMLA eligible because we don’t have enough employees in the office where he works or within 75 miles of his worksite.  Based on those facts, we informed our employee that he was not eligible for FMLA leave and told him that he could not take time off.  When he went forward with his surgery and took leave anyway, we terminated his employment.  He now has sued us under the FMLA and other legal theories, including “promissory estoppel.”  Given that he was not FMLA eligible, do we have anything to worry about? Answer→