Employment Law Articles

Making Non-Competes and Other Restrictive Covenants Enforceable

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            Contrary to the popular belief of many, non-compete agreements and other restrictive covenants are enforceable, when properly drafted. Non-compete agreements typically prevent an employee from competing with their employer during the term of employment and for some period following termination. The agreement must be narrowly tailored to protect legitimate business interests, for a reasonable duration, within a reasonable geographic scope. It must also not unfairly restrain an employee’s opportunity to work in his occupation. These factors will differ significantly based on the employer’s business and the employee’s duties. For instance, courts have found that a single hair salon may enforce a non-compete that prevents its stylists from providing similar services within a 10 mile radius for one year following termination.

Connecticut’s Employer Defamation Defense

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            The Connecticut Supreme Court unanimously held that an employer will be liable for defamatory intra-company communications made with either “actual malice” or “malice in fact.” Gambardella v. Apple Health Care, Inc., 291 Conn. 620 (2009). A statement made with “actual malice” is one made with actual knowledge of its falsity or with reckless disregard for its truth. A statement made with “malice in fact” is one made with bad faith or improper motive. Proving actual malice is more difficult.

Recording Conversations Without Adequate Consent Violates Law

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            Secretly recording a telephone conversation without the consent of all parties participating in the conversation, such as between an employee and supervisor, violates Connecticut civil law. Conn. Gen. Stat. § 52-570d makes it unlawful for anyone to record a phone conversation without the consent of all parties to the communication. Such consent must be obtained in advance, in writing, or verbally at the start of the recording, or through automatic tone warnings throughout the conversation.

Employers Responsible for Added Taxes Stemming from Lump Sum Awards

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            The Third Circuit Court of Appeals recently ruled that employers can be held liable for any additional taxes employees must pay when receiving a lump sum award. Eshelman v. Agere Systems, Inc., 554 F. 3d 426 (3d Cir. 2009).

Drafting an Effective Employee Handbook

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            While the law does not require employers to have an employee handbook, laws at both the state and federal level do require that employers have written employment policies. Handbooks are the most efficient way to inform employees of the organization’s expectations and achieve legal compliance. Most handbooks, at a minimum, include an employer’s human resource policies, information on compensation and benefits, conduct expectations, and disciplinary procedures. While using a template may provide a good starting point, additional effort should be exerted so that the handbook reflects the organization’s culture and philosophies. Simple, easily understood language is crucial, as are translated editions where you have significant numbers of non-English speakers.


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