The employment law trends that I’m seeing, there are always different trends depending upon what is happening out in the workplace or in the legal marketplace. But the current ones that we’re seeing are legislative hostility to non-compete agreements. And it’s not so much that they’re hostile that they’re outlawing them, they’re illegal in California, for example, but a lot of state legislators and even at the national level, there’s talk about a national non-compete act that would limit an employer’s ability to have non-compete agreements with certain employees.
So, clients should just be aware that when they’re negotiating a non-compete agreement or a non-solicitation agreement, that there are these trends out there, and you can’t just pull something off the internet because a lot of times those agreements are over-broad an overbroad agreement may not be enforceable whereas a narrower agreement a judge might say, “Yeah, we can enforce that.” Particularly in our jurisdiction. Often you get a call from a client who says, “Well, I understand that these non-compete agreements are not enforceable.” And that’s not true. They’re not enforceable in California and Oklahoma and to a certain extent, North Dakota, but everywhere else, they are enforceable under the right circumstances and given the right facts.
The other area that they should be aware of, and they’re probably aware of this more than I am, is that there are a lot of employees out there who think they know more about what their rights are than they really have. So, you hear a lot of stories from clients calling up and saying, “My employees are telling me that they have an absolute right to take time off whenever they want” or something along those lines or “You have to pay me if I think that I’ve got COVID” or “You have to pay me if my kid gets sent home from school”, things like that. And the employer has to be able to handle that in a sensitive fashion, but with the understanding that they’re the employer and they get to make those rules and if they want to provide those accommodations, unless they are legally required, and in a COVID, there are lots of legal requirements now, but the employer needs to understand what those rights are and how they can handle employees who have this sense of entitlement. We’re hearing a lot of complaints from employers about that.
And then, the other area that I see a lot of questions arises when an employee has a medical issue and how to handle that appropriately, both from a legal compliance standpoint, but also from a human standpoint. You’ve got to manage your business. You’ve got to try and provide the employee with some sort of accommodations, even if they’re not legally required, an employer might want to provide an employee with accommodations because they value the employee or because they want to make sure that there’s not a ripple within the workforce if other employees think that this employee isn’t being treated fairly, but it gets really, really complicated because you’ve got leave laws at the state law level, you got the Family Medical Leave Act, you’ve got military family medical leave, you’ve got workers’ compensation, you’ve got disability discrimination, laws, and regulations. It can become very, very complex and hard to navigate. So, I strongly encourage clients to call me when those issues come up so that we can try to work through them together.