It is essential for employers to fully understand what an employee record is when complying with the legal requirements for keeping and divulging such records. Recent case law has shed some light on the meaning of this term.
Recent court decisions have increased employers’ exposure to so-called “cat’s paw” liability from employment decisions. Employers and supervisors alike should understand the risks.
Covenants Not to Compete
Michigan courts analyze four distinct elements when assessing the “reasonability” (and hence the legality) of a covenant not to compete. This article briefly reviews the manner in which the Michigan courts have applied these elements to covenant not to compete cases, which arise primarily in the context of former employees.
To the mind of many, the duration of a covenant not to compete is the primary defining feature of any such restriction. This article isolates this one interactive element and reviews the applicable case law on the timing element. The influence of the other covenant factors on this term is also explored.
The geographical scope of a covenant not to compete is of crucial concern to the contracting parties. Frequently these parties choose to replace this geographical element with a general prohibition against soliciting customers and prospects. The record of Michigan cases on this topic is reviewed in this article.
A covenant not to compete requires a clause specifying the future activities the employee or contracting party is prohibited from engaging in. Simply stating that the employee or other party “may not compete” frequently causes the clause to be unenforceable. This article explores the drafting challenges and case law results relating to this element of covenants not to compete.
An employer, purchaser or other party must be able to specify just what interests are worthy of anti-competitive protection. The law that the competitive interests be “narrowly drawn” in the covenant to protect valid competitive interests, and not be used as a club to prohibit all competition. This article explores how and where the courts draw the line between these two levels of concern.
Confidentiality / Non-Disclosure Agreements
Parties frequently sign a Confidentiality (a/k/a Non-Disclosure) Agreement and then ignore the protocol necessary to keep the protected information safe from unwanted disclosure. This article explores the general principles a disclosing party should follow to better assure that its confidential information will continued to be treated as such.
There is a growing perception that parties to Non-Disclosure Agreements must choose between a definite term of years – which then allows disclosure after the term ends – or risk potential immediate disclosure from an “indefinite” term which may be invalidated by a court of law. This article discusses terms and measures which can be taken to reduce the risk inherent in choosing a term of years for your NDA.