Is a covenant not to compete reasonable?

In Washington all questions surrounding whether or not a covenant not to compete is reasonable involve the following three factors:

1. Whether restraint is necessary for protection of business or goodwill of the employer.

2. Whether the covenant imposes upon the employee any greater restraint than is reasonbly necessary to secure employer's business or goodwill.

3. Whether degree of injury to the public is such loss of the service and skill of the employee as to warrant nonenforcement of the covenant.

Knight, Vale and Gregory v. McDaniel, 37 Wn.App. 366 (Division II 1984)

Federal Courts are hard on employment cases

It is common knowledge among plaintiff's employment lawyers the employment discrimination cases filed in federal courts have a short shelf life.  It seems as though there isn't a federal judge who doesn't like a defendant's summary judgment motion.  Most employment discrimination cases depend on inferences from the facts.  That is, rarely do defendants come right out and say they are discriminating agains someone.  Therefore, you have to resort to circumstantial evidence from which a trier of fact could infer that discrimination was taking place.  Federal judges seem loathe to draw any inferences from the facts and therefor usually find that the plaintiff is wanting in her evidence.  I have heard that the judges are "inference challenged."  To see how long it takes to succesfully overcome this bias see the post here.

Employment Law: Third Party Retaliation

The U.S. Supreme Court last month ruled that a man that was fired just weeks after his fiance filed a sex discrimination claim had standing to bring a retaliation claim.  The man and his fiance worked for the same employer. The case is  Thompson v. North American Stainless.  Normally a retaliation claim can only be brought by someone that is engaged in protected activity.  That is those who file a claim, report discriminatioin or somehow assist in the claim.  The man had done none of those things.  His only connection was that he was the fiance to the woman who filed the claim. To prove retaliation it must be an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  Firing  the worker's fiance certainly fits that bill but that still only makes it a claim that can be made by the person who engaged in the protected activity.  Justice Scalia comes to the rescue by ruling that the man came within the "zone of interests" protected by Title VII and therefor he had standing to bring the claim. In the language of the statute he was a "person aggreived". On the one hand that seems to be a stretch, but on the other hand he is the one who was fired and to not give him a claim would undermine Title VII.

Hostile Work Enviornment

This is for the lay readers out there in the blogosphere.  I often get calls from potential clients who want to sue their employer for a "hostile work enviornment".  When I question them further it usually turns out that their supervisor is a real jerk and is creating a hostile work enviorment.  Unfortunately, I have to tell them that I cannot help.  The term "hostile work enviornment" has been tossed around in the public without an important qualifier.  That is, a cause of action exists only if the enviorment is hostile and the hostility is directed at a member of a protected class because the person is a member of that protected class.  Protected classes are classes based on race, religion, gender and so forth. Basically it is a cause of action based on discrimination.  Perhaps some day they will come up with a cause of action aimed solely at bosses that are jerks  -- we could call it a "boss-ectomy".

Female on Male Sexual Harrasment

Female on Male Sexual Harrasment really does happen and these cases can be won.  See Ellen Simon's recent post.