Califf & Harper, P.C. November 2010 Newsletter

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Califf & Harper, P.C. is proud to send you the November 2010 edition of our firm Newsletter. It is our sincere hope that you find the articles presented here informative and relevant.
Are You Competing With Your Non-Compete Agreement?
As seen in the October 2010 Quad City Times Business Journal
Submitted by: Franklin Mitvalsky, Attorney
Most of us are familiar with non-compete agreements (NCA) and how they can operate to restrict an employee from competing against his or her former employer. After all, it's unfair for a person to accept employment with a company, learn the company's confidential information, customer base and other proprietary business methods, and then subsequently use that information in direct competition with the company.
I bet you've also heard of the three traditional hallmarks of NCA's in that they must be reasonably limited in their duration, geographic scope and list of restricted activities. Put another way, they must be narrowly tailored so that: (a) the company's business interests are protected, and (b) the former employee remains capable of earning a livelihood after leaving the company. If an NCA is too broad in any of those categories, it might be unenforceable.
Okay, enough of the boring stuff. Instead, let's take a look at some common misconceptions about these contracts. More likely than not, you'll find some surprises as we debunk these myths.
My company fired me, so it shouldn't be able to enforce the NCA I signed when I started working for it.
Not necessarily true. Unless the company specifically breaches the written provisions of the NCA or otherwise unlawfully terminates you, the NCA will remain enforceable. A carefully drafted NCA will permit the company to terminate your employment and still insist that you refrain from competing against it.
I signed an NCA that has huge time and geographic restrictions on my post-employment activities so it won't be enforced, right?
Believe it or not, NCAs which are too broad in duration or geographic scope might still be enforced, to a certain extent. In many states, courts enjoy something called "blue pencil" authority (I have no idea why we call it that). This means that a court can actually re-write an NCA to scale down its restrictions to a more reasonable level, and then enforce those modified restrictions against a former employee.
Califf & Harper P.C. Welcomes Abigail Linn Waegaert
Ms. Abigail L. Waeyaert joined Califf & Harper, P.C. as a new Associate in 2010. Ms. Waeyaert, a native of the Quad Cities, graduated from Moline High School in 2003, and went on to receive a Bachelor of Business Administration in Management from the University of Iowa in Iowa City, Iowa in 2007, as well as her Juris Doctor from the University of Iowa College of Law in May 2010. At the College of Law, Ms. Waeyaert was a Research Assistant for Professor Ann Laquer Estin, assisting with research on international family law issues. Ms. Waeyaert was admitted to the Illinois bar in November2010. She will be joining the firm in the general practice of law.
Social Media & Employee Privacy Rights: How Employers
Can Walk the Line
As seen in the August 2010 Quad City Times Business Journal
Submitted by: Sigrid U. Zaehringer, Attorney
As Facebook, LinkedIn, and Twitter flourish, and email and text messaging become the dominant communication tools, employers face challenges when employees take advantage of these new technologies. These difficulties are attributed to the conflict between employee privacy rights and the employer's right to maintain an efficient, and in some instances, safe work environment.
While many employers incorporate social media into networking strategies, others have adopted rules limiting the use of company computers or other equipment for personal use. After all, productivity isn't the only thing at stake; the company's reputation and workplace harmony may also be threatened by irresponsible texting, emailing, or online posting during business hours. However, employers must be careful in controlling such behavior in light of employee privacy rights.
Most privacy controversies are rooted in either the Fourth Amendment or state privacy laws. In both Iowa and Illinois, individuals can recover damages for wrongful invasions into their private lives if they have taken appropriate steps to safeguard what should be kept private. To successfully bring a privacy suit in either state, a plaintiff must show that a defendant purposefully intruded upon the plaintiff's privacy, and that the intrusion would be highly offensive to a reasonable person. The defendant is not liable, however, if the plaintiff's conduct is already in public view. When privacy cases arise in an employment context, a court will also inquire whether the employer has a clear policy governing computer and phone usage. The existence of such a policy is directly tied to the employee's expectations of privacy; if an employee knows he or she will be monitored, then his or her expectations of privacy are diminished.
Employees have gone to court and invoked privacy rights in video surveillance cases, when their desks or offices were searched, and when the contents of messages sent via company computers were reviewed by the employer. In a United States Supreme Court case decided in June, a government employer recovered hundreds of personal text messages sent via company phone. There are also reports of incidents where management was informed of employee misconduct on Facebook by other employees or people outside the company.
Even though these examples vary, similar questions arise. Did the employer have a legitimate interest in scrutinizing the employee? Was there a company policy addressing the employee's behavior? Did the employee have a reasonable expectation of privacy? In the Supreme Court case, the Court held that the text messages were subject to review and that the employee's expectations of privacy in the texts was limited, particularly because the equipment was owned by a public employer. In the cases of the incriminating posts on Facebook, the employee's case was defeated because the messages were visible to other individuals, and not "private." In the case of the employer reading personal emails sent via company computer, however, the court found that the employee's right of privacy was, in fact, violated because the company policy regarding personal email inspection by the employer was vague.
For now, the most important thing employers can do is develop company policies concerning computer, phone, and internet usage. Not only must the language clearly define acceptable behavior, it should define what kind and how much activity will be tolerated. If employers monitor employee emails, posts, and text messages, then they should notify employees in writing that they are subject to scrutiny. Policies must be consistent with external memoranda and collective bargaining agreements. Additionally, such policies should be implemented to protect the employer's business interests and not used to discriminate against or harass employees.
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