Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

What's the recipe for a successful enforcement of a restrictive covenant case? Well, if you missed our webinar yesterday, there's a case out of Pennsylvania that takes that discussion out of the kitchen and into the real world.

Ever eat Thomas' English Muffins and wondered how they make all those "nooks and crannies"? Well, the first thing you should know is that Mr. "Thomas" isn't the owner of the english muffins anymore; a company called Bimbo Bakeries is.  And Bimbo got stirred up quickly when it found out that its secret might be let out of the oven. 

Allegedly, former Bimbo Bakeries executive Chris Botticella knew the key to making the nooks and the crannies.  And, although he allegedly told his employer that he planned to retire, he planned to work for Hostess (makes of such classics such as Twinkies and Ding Dongs). Bimbo thought that was a half-baked idea, and asked a court for an injunction claiming that it was "inevitable" that he would disclose those secrets to Hostess.

According to published reports, Botticella is one of only seven people in the world who knows all the secrets on how to manufacture those muffins.  

The judge gobbled up Bimbo's arguments and found that even though Botticella had not yet disclosed the secrets, it was inevitable that he would.  Through his attorney, the "muffin man" has said he will appeal.

The doctrine of "inevitable disclosure" in Connecticut has been applied in some cases, though it is by no means a blue-ribbon argument.  Employers who seek to use that argument, should grill their attorneys about the limits of such a doctrine and realize that the doctrine should be sparingly used.

And, if you're wondering, the lawsuit does not say that Botticella lives on Drury Lane -- only that he lives in California.  If you've forgotten the words, you can find those lyrics and the song below.  (You'll thank me when you are still humming the tune hours later.)

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In posts earlier this week, I've discussed what the NLRB's Connecticut Office is doing and what to expect for 2010. 

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time.  The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

• Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules -- in his view -- go too far. 
• He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company's "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
• Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas.  Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it's a good reminder.)
• He did note that employers can prohibit the use of employer's e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.  
• We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it.  But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias.  He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
• Lastly,  Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others.  (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what's the bottom line for employers? 

• Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
• Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
• And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees' discussions of wages) may still apply, so if you're concerned, be sure to seek appropriate legal counsel.

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With the Super Bowl over, there are many in Connecticut who would love to start paying attention to baseball (after all, pitchers and catchers report to spring training in about two weeks).

Fortunately, there's been plenty of drama for New York Yankees fans this week with the release of former manager Joe Torre's new book, The Yankees Years.  It has been marketed as being somewhat controversial, though the reviews of the book have indicated that it is fairly tame as memoirs go.

Nevertheless, the kerfuffle regarding the book has led to the Yankees mulling some type of confidentiality or non-disparagement clause in future contracts of managers and coaches (see reports here, here and here.) Such restrictions would probably not be applied to players because the union would likely object to such clauses. 

This, of course, raises several questions, including: What does such a clause look like? The clauses are not uncommon in severance or separation agreements (though not necessarily routine), but less so with employment agreements.  The Footnoted blog reprints contracts that have been filed with the SEC as does a website called OneCLE. You can use these site to get ideas of clauses or language that can be used for various employment or separation agreements. 

As for the non-disparagement clauses, there are a few examples you can find on these sites.  One such agreement states:

Employee agrees (whether during or after Employee’s employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Released Parties.

Another agreement, is a bit more thorough and states: 

Non-Disparagement. (a) You agree not to disparage or denigrate the Company or, subject to paragraph 10(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators.

(b) Notwithstanding the foregoing provisions of this paragraph, it shall not be a violation of this paragraph 10: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer.

Are these types of provisions something that companies can consider? Sure, but as with all types of provisions, employers should understand more about the clauses, about the enforceability of such clauses and about why they might need or not need such clauses.  And certainly the language should be tailored to the particular company's situation.  (As always, seeking some type of legal guidance is recommended before implementing changes to any agreements that a company may use.)

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