senate2003While I normally make my year-end reflections at, well, year end, I can’t help but take this moment to see the big picture: We’re hearing an awful lot about restrictive covenants.

These covenants — often in the shape of non-compete clauses or non-solicitation (of employees or customers) clauses — have become popular because companies are looking to protect their financial interests.

Connecticut — despite its reputation for being anti-business — still has relatively strong protections for employers who want to use these clauses for their employee.

But these clauses are coming under attack more and more as their use becomes more widespread.

Jay Wolman, on The Legal Satyricon, noted that non-disparagement clauses in separation agreements may be one area where courts are reluctant to enforce. As a result, employers may want to use severability clauses to have the agreements upheld even if one provision is overbroad:

These clauses are very common, but likely are not long for this world.  In the interim, employer counsel may want to rethink the standard severability clause.  Although employers are certainly keen on obtaining as much a release as possible, it may be time to reconsider whether the agreement should survive if the former employee can simply ignore these clauses.

The ABA Journal of Labor & Employment Law also recently published an article on “Developing Trends in Non-Compete Agreements and Other Restrictive Covenants.” As the authors note, courts still tend to enforce the covenant “if it protects a legitimate business interest, the employee received consideration for the covenant, it is narrowly tailored, and the time and territorial limitations are no greater than necessary to protect the employer’s business interests.”

Despite this, the authors are quick to highlight the fact that each state interprets such things differently.

The New York Times even last year noted the trend of employers using these clauses more.  And not in a good way.

With this publicity in mind, Connecticut is again taking the lead — at least from a federal perspective.

Slate reported last week that Senator Chris Murphy introduced legislation that would ban non-compete agreements altogether for workers who make less than $15 per hour.

It would also require companies to let potential hires know ahead of time that they will be required to sign a non-compete agreement.

The bill, called the Mobility and Opportunity for Vulnerable Employees Act (MOVE) is also co-sponsored by Connecticut’s other senator, Richard Blumenthal.

At a press conference, Senator Murphy said that the bill was necessary in a free labor market.  “If workers can’t go to a competitor for a promised higher wage, then the market fluidity — the labor fluidity that creates upward pressure on wages — disappears,” Murphy said. “If workers are locked into jobs because of non-compete clauses, then there is no reason for companies to raise their wages.”

Without bi-partisan support, the odds of this bill passing are somewhere between never and no.  But don’t be surprised if we see this pop up again at a state level in the next legislative session.

As many wait for the Supreme Court’s decision later this term on same-sex marriages, one issue that seems to get lost in the shuffle is the fact that there is still no federal law prohibiting discrimination in employment on the basis of sexual orientation.

For employers in Connecticut, this is basically a non-issue because Connecticut has long since prohibited it.  But for employers who want consistency and for those who believe that discrimination on the basis of sexual orientation is just outdated, the lack of a federal bill rubs some the wrong way.

Earlier this week, Senator Chris Murphy of Connecticut hosted his first Google Hangout.  (Again, for those still new to the technology, you can get your primer here.)  It is now found on YouTube. 

He was kind enough to take questions over Twitter (another reason you should get on there) and responded to my question: What are the prospects for ENDA — the federal bill that would prohibit sexual orientation discrimination?

At about the 17:15 mark of the talk, he provided an in-depth discussion about what the bill is and its prospects.

“My hope is that we see an absolute sea change in the rights of gays and lesbians in the next month or so” after the Supreme Court’s ruling next month on gay marriage, Murphy said.  But “save for that action by the Supreme Court, we should pass ENDA.” 

As for the prospects itself? “Not too good” given that “largely social conservative Republicans control the House of Representatives,” said Murphy. 

But even in the Senate, it’s prospects were less than clear.  As Murphy observed: “I bet you we could get 50 votes in the Senate” but he didn’t think there were 60 votes which is now the new magic number to get bills passed to break a potential filibuster. 

“So, Daniel, I think the answer to your question is, unfortunately though you’ve got a lot of strong voices like myself, it’ll be hard to get that done.”

I thank Senator Murphy for taking the time to address this issue.

Since Murphy’s comments earlier this week, a opinion piece was also posted in the Washington Post calling for passage of ENDA

So, while its prospects right now are weak, is Senator Murphy correct that we will see a change after the Supreme Court’s decisions on gay marriage? Only time will tell. 

Election Day is nearly upon us.  Much like I did two years ago, it’s time to recap the rules for employers regarding the election.  The polls are open from 6 a.m. to 8 p.m. for everyone to vote for their favorite candidate…or at least the one that they dislike the least.  You can find out where you should vote at this easy to use link.

Any Time Off Required?

One question that arises from time to time: Do employers in Connecticut need to provide employees with time off to vote?

Many states offer this protection.   However, Connecticut isn’t one of them.

What does that mean? It means employers can insist that employees vote during non-working hours and have no legal obligation to provide time off to employees to vote. 

However, a reminder to employees about the polls being open and that they should vote either before or after their particular shift or work hours is certainly appropriate.

No “Threats” To Employees

Connecticut does have one peculiar law, however, that prevents employers from interfering with an employee’s vote. In fact, earlier this year, Conn. Gen. Stat. Sec. 9-365 was amended to make interference with the election a Class D felony:

Any person who (1) during the period that is sixty days or less prior to any election, municipal meeting, school district election or school district meeting, attempts to influence the vote of any operative in his or her employ by threats of withholding employment from him or her or by promises of employment, or (2) dismisses any operative from his or her employment on account of any vote he or she has given at any such election or meeting shall be guilty of a class D felony.

Despite a version of this law being on the books for nearly 60 years, don’t expect to find much, if any caselaw or commentary on it.  Yet, employers should still avoid the appearance of suggesting how to vote to employees. 

Remind Employees of “Bill of Rights”

Employers can feel free to remind employees of their “Bill of Rights” for voting.   Connecticut set up these rules and summarized them in a document here.  Among the more noteworthy rules that employees should know of is their right to vote when they are “in line” at the time the polls close. 

Other Tidbits

Reviewing the state’s laws on elections also reveals some other interesting quirks and trivial details.  For example, voting areas must have have a United States flag on the wall (Connecticut’s flag is optional), and a telephone. (And no United Nations Flags are allowed.)

As we continue a look back this week at some older posts, who could forget this classic post from April 2008.

In it, I answer the burning question:

Is putting a toilet training book, such as  “The Book of Poop”, on a disabled co-worker’s desk sufficient to create a Hostile Work Environment?

And what happens when your co-workers call you “Poopy” and “The Sh__meister” too?  Will a federal court flush the claim down the toilet?

You can find out what happens here. The answer may surprise you.

A few weeks ago, I posted a "Save the Date" for a half-day seminar that my firm’s Labor & Employment Law Department and teased that we had some great things lined up.  Today I get to share the exciting information and write to encourage you to sign up quickly as we expect this to fill up quickly.

The labor & employment seminar, titled "Meeting Today’s Employment Law Challenges: Practical Solutions to Complex Workplace Problems" is now set for May 20, 2011 from 8-1:30 p.m. at the Hartford Club.

You can register here or by e-mailing seminar@pullcom.com.  If you have further questions, please feel free to call my firm at (860) 424-4344. 

First, the headlines:

  • U.S. Congressman Joseph Courtney will be our breakfast speaker.
  • Deputy Labor Commissioner Dennis Murphy will be our featured lunch speaker
  • This half-day program is free to all attendees and will feature complimentary breakfast and lunch as well. 

If that isn’t enough of a reason to attend, here are some additional details on the rest of the morning.

The day will include four sessions by Pullman & Comley attorneys who will offer practical, real-world answers to the myriad labor and employment law issues facing Connecticut businesses.

Among the topics: 

  • Drowning in a Sea of Paperwork: Are Your Documents in Order (Hiring, Restrictive Covenants, FMLA, I-9s and Immigration, etc.)
  • Highlights from Court Decisions and Key Legislative Developments Over the Last Year
  • "To Friend or Not to Friend": Technology and the Workplace
  • Five Wage & Hour Issues Every Workplace Must Know

Registration and breakfast is from 8:00 a.m. – 8:30 a.m., presentations are from 8:30 a.m. – 12:30 p.m, and lunch with keynote speaker is from 12:30 p.m. – 1:30 p.m.

This presentation is several months in the making and as one of the organizers of the event, I’m excited about the lineup. I hope you are too and I look forward to seeing many of you there.  Again, space is limited so be sure to RSVP as soon as possible. 

Can a union president and a former HR Director work together effectively? 

We’ll soon find out at the Connecticut Department of Labor.

Governor Dannel Malloy this afternoon selected Glenn Marshall to serve as the new commissioner of the Department of Labor, and picked Dennis Murphy as the agency’s new deputy commissioner.

In a press release issued today, the Govenor describes the background of both:

Marshall, of Milford, is currently the president of Carpenters Union Local 210, where he led advocacy efforts on behalf of a construction labor force, including working closely on state legislative and administrative matters that impact the construction industry and the economy of Connecticut. In this position, he gained recognized respect as a leader who has worked well with both organized labor and Connecticut businesses.

Murphy, of Bridgeport, is a Neutral Labor Arbitrator with the American Arbitration Association, FINRA and the ADR Center, Inc. He previously served as the Director of Human Resources for the City of Stamford from 2004-2008, and was the Chief Administrative Officer for the City of Bridgeport from 1994-2002.

In making such an appointment, Gov. Malloy was quick to emphasize that he does not expect the department to be pro-union or pro-business:

In order to run the Labor Department, it is important to have someone who can work effectively as a consensus builder.  I strongly reject the premise that you have to be either pro-labor or pro-business – you have to be both. There is no doubt that in these tough economic times we need to have a responsible approach to decision making and an ability to work with broad-based coalitions. Glenn and Dennis – both of whom I have known for years – will take their respective experiences and put them to work at the Department of Labor, finding new and unique ways to ensure our state’s labor force is protected, and our state’s business community thrives.

With budget issues looming, it is quite possible that the department will be asked to do more with less. It is not an enviable task in this environment.  Addressing unemployment compensation claims will no doubt take up some time, but hopefully, other areas of the department can receive some focus as well.

What Does This Mean for Employers?

At this stage, I would encourage everyone to reserve judgment on the appointments.  By making both appointments at the same time, the Governor seems to be reinforcing his message that he wants his administration to be viewed as a business-friendly one, and not merely a pro-labor one. 

The CT Mirror had this story with additional background as well. 

In the meantime, it is best to wish both of them well in this new endeavor. And a little luck too. 

(Note: Dennis Murphy is the spouse of a partner at Pullman & Comley)