Tillman v Egon Zehnder Ltd., the first employment competition case to reach the UK’s highest court in over a century was decided on July 3, 2019, changing the landscape for noncompetition agreements in the UK.
Last November, we discussed the potential impact of a recent California appellate court decision, AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923 (2018), which called into question long-standing California precedent enforcing certain employee non-solicitation provisions. However, we noted it was too soon to forecast the implications of that case.
Though it is still early, it appears the tide may be turning, as a California federal district court recently issued a decision that relied upon AMN’s holding and found that the employee non-solicitation provision in the plaintiff’s contract was unenforceable under California law.
Employers in many industries use non-compete agreements as a key tool to protect trade secrets. According to U.S. Treasury reports, non-compete agreements impact approximately 30 million – nearly one in five – U.S. workers, including roughly one in six workers without a college degree.
Some employers have imposed non-compete agreements across a broad segment of their workforce, including imposing them on low-wage earning employees and employees who are not privy to trade secrets or other confidential information. Non-compete agreement opponents argue that such broad non-compete agreements can interfere with the employee’s right to make a living without any off-setting benefit for the employer. In the past few years, state attorneys general have been successfully suing companies to invalidate what many see as overly-expansive non-compete agreements.
As we reported in August, Massachusetts became the penultimate state to enact the Uniform Trade Secrets Act (UTSA), leaving New York as the sole remaining holdout. Massachusetts’ new law, which took effect October 1, 2018, significantly expanded the state’s existing trade secrets law by broadening protections for trade secret owners and narrowing the scope of noncompete agreements. As we reported earlier this month, the new law does not apply retroactively even if the violation is ongoing in nature.
Now, roughly five years and one federal trade secrets statute later, Massachusetts has become the 49th state, leaving New York as the lone holdout. The new law, which takes effect on October 1, 2018, is part of an amendment to a $1.1 billion economic development bill that Massachusetts Governor Charlie Baker signed into law on August 10, 2018. With the enactment of the UTSA, Massachusetts courts will have newfound power to enter injunctions against actual or threatened misappropriation of trade secrets.
The law in California is well settled that, with few exceptions, non-compete agreements are unenforceable. Less clear is whether and to what extent employee non-solicitation and no-hire agreements can withstand a court’s scrutiny. These types of agreements often exist between employers and employees, as well as between employers themselves. And while non-solicitation provisions containing broad language prohibiting direct or indirect solicitation are common, there is significant confusion over the extent of their enforceability in California. Are these agreements enforceable? As is often the case, the answer is “it depends.” Fortunately, there are a handful of published appellate cases highlighting the fine distinctions that guide the analysis: READ MORE
On December 8, 2017, the Eighth Circuit rejected trade secrets and other claims related to allegedly stolen customer lists. Applying Missouri state law, the federal appellate court continued the Show-Me State’s tradition of looking at customer list trade secrets with a jaundiced eye. READ MORE
Contrary to common perception, California employees who signed restrictive covenants prior to January 1, 2017 are not completely immune to enforcement of all restrictions on competition. For the second time in several years, a foreign corporation, Synthes, Inc., successfully enforced a non-competition agreement against former employees who were California residents. In the most recent case, the U.S. District Court for the Eastern District of California, enforced the company’s agreement against a Sacramento resident. READ MORE