Non-compete and non-solicitation agreements have become common today for numerous positions at various levels throughout all industries. This is true even though courts look with disfavor on such agreements and seek reasons not to enforce them; viewing such agreements as one-sided, prepared by and favoring employers, and restricting the individual’s ability to work and earn a living. In fact, for such reasons, these agreements are generally unenforceable in California. Thus, when asked to enforce non-compete/non-solicitation agreements, courts examine them to see if the employer has a protectable interest in the matters being restricted and whether the restrictions are narrowly-tailored in terms of both their length and geographic scope.
Pennsylvania recently enacted a medical marijuana statute. This Act clouds the rights of employers and is another hit to Pennsylvania’s employment-at-will doctrine. Nevertheless, even in Pennsylvania, marijuana remains an illegal substance under the Federal Controlled Substances Act, and employers may continue to enforce their drug-free workplace policies for safety and production reasons, as well as compliance with other contractual or statutory obligations. The new Pennsylvania statute does, however, have implications for employers.
In Pennsylvania, it is a felony for a person to intercept any wire, electronic, or oral communication unless all of the parties to the communication have given prior consent to such interception. This makes Pennsylvania a two/multiple-party consent jurisdiction. “Interception” is defined as the acquisition of any oral communication through an electronic, mechanical, or other device other than through a telephone or any component thereof. The traditional example of the crime is tape recording a conversation without the knowledge of one of the parties to the conversation.
Historically, Pennsylvania has been a strict employment-at-will state. Very few employee attempts to create a cause of action have been found to implicate a public policy of the Commonwealth and, thus, give rise to a private right of suit. Recently, a former employee was permitted to use the Pennsylvania Prohibition of Excessive Overtime in Health Care Act as a vehicle for such a claim.
Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
The NLRA requires employers whose employees are represented by a union to maintain the employee’s existing terms and conditions of employment and to negotiate with the union before implementing any changes to those conditions. Even fundamental changes in the business itself, which are exclusively the prerogative of management and not subject to bargaining, will give rise to a bargaining obligation over the effects of those decisions on unionized employees.
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.