EMPLOYMENT AND LABOR LAW
We Represent Companies and Employees in Many Areas of Labor and Employment Law Including:
- Wrongful Termination and Salary/Commission Disputes;
- Drafting and Enforcing Employment, Confidentiality and Non-Competition Agreements;
- Sexual Harassment, Racial, Gender and Age Discrimination Claims.
BIG CHANGES TO CONFIDENTIALITY AGREEMENTS By Gregg Paley
Most savvy companies utilize a wide variety of protective measures to guard against the use or disclosure of confidential information by employees and contractors. One of the most effective strategies is to require anyone affiliated with the company to execute a Non-Disclosure Agreement that identifies the precise nature of the protected information, the duration of the restriction and employer remedies in the event of default.
However, a recent change under federal law due to the Defend Trade Secrets Act of 2016 (DTSA) has added additional requirements for Non-Disclosure Agreements entered following its enactment with potentially serious consequences for the failure to comply. The good news is that the DTSA itself is a welcome alternative to the myriad of different state laws involving theft of trade secrets and is the most significant trade secret reform in decades. In addition, the Act does not preempt state law trade secret protections and remedies which remain in effect as well providing several alternatives if a lawsuit is required.
The DTSA doesn’t apply to agreements in place prior to the Act but all new, updated or revised agreements must include the following whistleblower disclosure language:
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that…is made… (1) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 18 U.S.C. §1833 (b) (1)
There is also a second method of complying with the disclosure requirement by providing employees and contractors with a cross-reference to the company’s formal written policy for reporting suspected violations without retribution.
Fortunately for employers, noncompliance with the new requirement does not mean that your confidential information is no longer protected. What does happen however is that companies lose the right to seek punitive damages for egregious violations and waive entitlement to the payment of attorney’s fees and costs by the breaching party. Although not fatal to a successful lawsuit, losing the threat of punitive damages and attorney’s fees may prolong litigation that would otherwise be settled much earlier because of those potential damages.
Protecting your confidential and proprietary information is one of the many important steps your company can take to protect market share and ensure the continued growth and longevity of the business. Gregg Paley at Colson & Paley, LLC can help evaluate the strength of your current system and advise you on the best methods to protect corporate information from theft. We can also review employee handbooks and policies as well as preparing Non-Compete Agreements to prevent employees from wrongfully competing against you by using your information to help competitors.
HOLIDAY PARTIES – KEEP THE GRINCH AND THE LAWYERS AWAY!
By: Gregg Paley, Esq.
A recent survey shows that 83% of businesses are planning some type of year-end holiday party. Unless you’re one of the deadbeat companies not having fun, proper planning is essential to keep the legal Grinch away.
Treat All Religions Equally
While this should always be the practice, it can be tricky to implement during the holidays. For example, a private employer can decide whether or not to allow holiday decorations if the policy is applied uniformly to all employees and their religions. So, if you’re going to allow Christmas trees be prepared to let employees display Hanukah menorahs and Kwanzaa harvest baskets as well.
In this age of political correctness, it’s easy to get carried away but this is one that makes sense. By calling your fiesta a “holiday” party rather than a Christmas or Hanukah party, you’re making all employees feel welcome and avoiding any claims of religious discrimination or preferential treatment.
As for the party itself, make it clear that employees are not required to go unless it’s held during normal business hours. If it is mandatory, employees can reasonably expect to be paid - hourly non-exempt workers must receive at least minimum wage for every hour of mandatory attendance.
Sexual Harassment at the Holiday Party
Although workplace sexual harassment is finally getting the attention it deserves, the combination of alcohol and informality at the holiday party can result in unwanted sexual comments or advances. Make sure to remind your employees that the sexual harassment policy will be in effect at the party and reiterate its importance by republishing a copy to each employee via email or other company-wide communication.
If alcohol is being served, find a way to limit the amount people can drink by either closing the bar early or handing out a limited number of drink tickets for each person. Of course, don’t allow self-service or unlimited access to the bar which can lead to liability for the company if there’s an alcohol related incident at or after the party. Also make sure to provide a variety of non-alcoholic drinks and plenty of food to soak up the libations and don’t forget a camera to take pictures of all the embarrassing dancing and speeches.
Finally and most importantly, provide safe transportation home for anyone who drinks too much. Tell all your employees in advance and arrange for taxi, uber or limo service to make sure everyone gets home safely to enjoy the holidays.
Happy Holidays and let the parties begin!!
If you have any questions or would like to discuss any labor or employment law issues contact Gregg Paley at Colson & Paley, LLC in Lighthouse Point, Florida.