NON-COMPETITION, CONFIDENTIALITY AND TRADE SECRET ISSUE
One of the many options available to employers to protect their investment in employees, as well as their trade secrets and confidential information, is the Non-Competition Agreement. An employee who signs such an agreement promises not to engage in certain competing activities after termination of his/her employment.
THE COURTS OPINION OF SUCH
AGREEMENTS
Generally, courts look negatively on Non-Competition Agreements as they act to restrain trade by preventing or restricting an individual's employment. Accordingly, the agreements are carefully scrutinized by the court on a case-to-case basis, taking into account the surrounding circumstances in determining the validity of the agreement and each agreement's specific terms.
KEY ISSUES
The key issues in reviewing the validity of a Non-Competition Agreement include:
1. Adequate consideration.
2. Reasonableness of terms including time and geographic limitations; and
3. Protection of a legitimate business interest, confidential, proprietary or trade secret information.
PROTECTING THE EMPLOYER'S INTERESTS
A variety of means are available to the employer to protect it's interests if a departed employee breaches a covenant not to compete. It is critical to establish a system of exit interviews and monitor the departing/departed employee's activities.
FMLA - FEDERAL FAMILY MEDICAL LEAVE ACTThe Federal Family Medical Leave Act (FMLA) provides for a total of twelve unpaid work weeks of job-protected leave for eligible employees for three basic reasons.
1. Birth, adoption or placement of a child for foster care;
2. When the employee has a "serious health condition" that makes him/her unable to perform the functions of his/her position; or
3. The employee needs to provide for the employee's parent, spouse or child with a "serious health condition".
The FMLA requirement applies to those employers with 50 or more employees in 20 or more calendar weeks of the current or preceding calendar year. An eligible employee is one who meets three criteria.
1. Twelve months of employment as the date FMLA leave commences;
2. 1250 hours actually worked during the twelve months before the date leave commences; and
3. Works at a site with 50 employees or where the employer has 50 employees within a 75 mile radius.
During the FMLA leave, an employer must maintain group health insurance coverage for an employee on the same terms as if the employee continued to work. This includes family coverage if applicable, with certain exceptions.
If the need for FMLA leave is foreseeable, an employee must provide at least 30-days advance notice or as soon as practicable. Oral notice is sufficient and the employee need not mention the term "FMLA" or the "Federal Family Medical Leave Act".
The employer must post a notice to all employees of the FMLA rights and each employer must establish a 12-month period during which FMLA leave will be counted pursuant to various options available.
MINNESOTA PARENTAL LEAVE LAW
A person or entity that employs twenty-one or more employees on at least one site is required to comply with the Minnesota Parental Leave Law. Eligible employees include a person who performs services for hire for at least twelve months immediately preceding the requested leave and for an average number of hours per week equal to one-half of the full time equivalent position in the employee's job classification.
Covered employees must grant eligible employees up to six weeks of unpaid leave for a biological or adoptive parent in conjunction with a birth or adoption of a child. A "Child" is an individual under the age of 18 or an individual under age 20 who is still attending secondary school. The employer can agree to provide more than six weeks if it do desires usually addressed in the employer's company handbook.
Although an employer is not required to pay the cost of insurance or healthcare while the employee is on leave, the employer must continue to make coverage available to the employee under any group insurance policy, group subscriber contract, or healthcare plan.
This webpage contains general information and not legal advice. It is based on Minnesota Law in effect the the time of writing. An attorney of Farrish Johnson can advise you about how the law applies to your specific situation