Over the weekend, The New York Times ran a surprising (at least to me) article about how Idaho has implemented a legal framework that gives employers a great deal of flexibility in an area getting a good deal more publicity of late: Non-compete agreements. (H/T to a post by Suzanne Lucas in Inc. too.)

When everyone has a non-compete agreement, what problems does that cause? Lots, according to the article:

For the most part, states have been moving toward making it easier for people to switch teams, but Idaho went the other direction with legislation that was friendlier to employers. The resulting law was particularly strict because it put the onus on employees to prove that they would not harm their former employers by taking the new jobs.

Proponents note that the statute applies only to “key employees” who tend to have more responsibility and better pay. But employment lawyers say Idaho companies tie down all levels of workers, not just top executives, with tough employment contracts.

Contrast that with California, which bans nearly all types of non-compete agreement, and lately, Massachusetts, and suddenly, Connecticut’s laws on non-compete agreements look downright moderate.

Indeed, for now at least, Connecticut employers have a good deal more flexibility on non-compete agreements that in other areas of employment law.

In fact, I was reminded of this when I looked back on a post from 2014 that noted the same thing — also in response to an article from The New York Times. It seems back then, the newspaper was also bemoaning the increasing use of non-compete agreements. Hmm.

In any event, employers in Connecticut should be mindful of this edict from the courts from 40 years ago that still rings true today:

In order to be valid and binding, a covenant which restricts the activities of an employee following the termination of his employment must be partial and restricted in its operation “in respect either to time or place, … and must be reasonable—that is, it should afford only a fair protection to the interest of the party in whose favor it is made and must not be so large in its operation as to interfere with the interests of the public. The interests of the employee himself must also be protected, and a restrictive covenant is unenforceable if by its terms the employee is precluded from pursuing his occupation and thus prevented from supporting himself and his family.

nevermindThe Supreme Court today issued a decision in one of the most anticipated cases of the session on whether public employees could be forced to pay fees to a union that they didn’t want to belong to.

And in doing so, the court showed what happens in 4-4 splits: Nothing.

Well, that’s not entirely accurate: The court did issue a one sentence “per curiam” ruling in Freidrichs v. California Teachers Association: “The judgment is affirmed by an equally divided Court.”

And because the lower court ruling affirmed the use of these fees, public unions live to see another day.

That’s it? Yep.  We’ll have to wait until the court is back to a full contingent and hears a similar case.

It reminds me of that old routine by the glorious Gilda Radner: Never Mind!

 

Earlier this week, I had the opportunity to speak to the HR Compliance Conference in San Francisco about legal issues related to hiring. 

California’s New Password Law

In some ways, everything old is new again on this topic.  Issues like the Fair Credit Reporting Act, or the EEOC’s guidance on criminal background checks, have been around for years yet are taking new relevance in the age of Google and social media.

One new issue, however, is whether employers can or should seek username and password information from applicants.

Bozeman, Montana attempted to do this several years ago.  It was a bad idea then, and remains so today.

But a few states have now decided to pass laws on the subject too.  California is the biggest and most recent to do so — and employers nationwide should keep an eye out for more developments. 

For those in California, employers can ask for such information when conducting an investigation — that’s good for current employees — but for applicants, asking for usernames and passwords should, overall, remain off-limits. 

What’s the practical implications for employers? Review your hiring procedures and social media policies to prohibit managers from requiring applicants to disclose certain information and to prohibit “shoulder surfing” (that is, requiring an applicant to log in, while the employer looks over the employee’s shoulder). 

And if you have offices in California, be aware of the new law which becomes effective January 1, 2013.

Word came down late yesterday about an important case for employers that have California-based employees. 

The case, Brinker Restaurant Corp. v. Hohnbaum, is the first California appellate case to rule on the parameters of employers’ duties under California laws requiring rest and meal periods.  The California Workforce Resource Blog has the details, as does the What’s New in Employment Law Blog.  For an employee-based perspective, the Wage Law blog also has a good summary as well.

Why do I bring this up in a Connecticut blog? For a few reasons. First, there are several Connecticut employers that have California employees, whether through sales or otherwise. Second, California tends to be on the cutting edge of some legal issues. With nearly 36 million people (or roughly 10 times the population of Connecticut), those issues just tend to pop up more than in a small state like Connecticut.courtesy library of congress (flickr) - workers circa 1943

Third, the case provides a good opportunity to highlight the Connecticut meal period law — an underappreciated law that lays out what is necessary and is much different than California.

Connecticut’s law is found at Conn. Gen. Stat. 31-51i and states:

(a) No person shall be required to work for seven and one-half or more consecutive hours without a period of at least thirty consecutive minutes for a meal. Such period shall be given at some time after the first two hours of work and before the last two hours.

In plain English, what this means is that if an employee works a 7 1/2 hour shift, they are required to be given a 30-minute break for a meal.  For an employee working 9-5, the meal period must be between 11 a.m. and 3 p.m.

There are exemptions to requiring this meal period but, for the most part, it’s going to be good business practice to allow for the meal period anyways.  However, there may be instances where a break is not feasible. The Labor Department recognizes an exemption if one of the following conditions is met:

  1. complying with this requirement would endanger public safety;
  2. the duties of the position can only be performed by one employee;
  3. the employer employs less than 5 employees on that shift at that one business location (this only applies to that particular shift); or,
  4. the employer’s operation requires that employees be available to respond to urgent conditions, and that the employees are compensated for the meal period.

Note that this meal period applies to both exempt and non-exempt workers.  Employers who do not comply can be subject to some civil penalties.  While the law talks about a meal period, there is no requirement for a "rest" period in addition to this meal period. 

As others will surely note, each state has their own rules on meal period and breaks. Employers should not assume that what will work for one state, will work for another.  In Connecticut, the rules are not particularly onerous for employers and certainly all efforts should be made to comply with these particular rules.  

Photo courtesy Library of Congress , circa 1943 Clinton, Iowa