Employment Law This Week®: Employee Mobility

by Epstein Becker & Green
We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week, we focus on employee mobility, an area of law that’s top of mind for many employers and employees at all levels. The laws that apply to such tools as non-compete and non-solicitation agreements are See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week, we focus on employee mobility, an area of law that’s top of mind for many employers and employees at all levels. The laws that apply to such tools as non-compete and non-solicitation agreements are changing almost daily in the courts and legislatures, and companies are finding it challenging to protect their confidential information, balance employee interests, and have enforceable protections. Aime Dempsey, from Epstein Becker Green, provides an update on some of the latest legislation in this area:

“There's a lot of activity going on right now in employee mobility in the legislative arena. Just a couple of weeks ago, on April 26th, bills were proposed in both the United States House and the United States Senate that would ban non-compete agreements. Non-compete agreements are actually right now only banned in three states: California, Oklahoma, and North Dakota. So, this would be a broad, nationwide ban for any employers who engage in commerce or who make products engaged in commerce. So that obviously touches on a great swath of employers, and those bills, if they pass, would ban non-compete agreements and potentially, based on how they're phrased, non-solicit agreements. In Idaho, a law that was favorable to employers in the non-compete arena has been pulled back a little bit. In New York City last summer, there was a law proposed to restrict non-competes for low-wage workers.”

In terms of enforcement, employers have been watching and waiting to see whether the Department of Justice’s Antitrust Division will continue the Obama-era emphasis on anti-poaching agreements and other employee mobility issues in the Trump administration. We asked Aime if 2018 has brought any new insights:

“It looks like, under this administration, the antitrust guidance will remain a priority. In October of 2016, the Department of Justice Antitrust Division announced a priority to enforce rules against no-poach agreements between employers. In January of this year, the DOJ Antitrust Division announced that it would be aggressively going after employers that violate the no-poach guidelines.”

As laws in this area continue to evolve, so does litigation. Recent rulings have created some further guidance that can help employers seeking to protect their interests and also help them know when to litigate. Here’s Peter Steinmeyer, from Epstein Becker Green, with more:

“The lessons that employers can draw from recent non-compete and trade secret cases are that courts are reluctant to restrain an individual from going to work. However, if there was an actual theft of trade secrets, a court would be far more likely to grant injunctive relief. So, the cases that we see actually going to court and being filed tend to be those where there was an actual theft.”

Even in the most restrictive legal environments, options are available for employers looking to protect their companies’ interests. California is well known for its strict limitations on employers in this area. State law prohibits nearly all non-competition and non-solicitation agreements. Jonathan Brenner, from Epstein Becker Green, tells us how, even in California, some employee departure protocols can help protect trade secrets:

“Having well-prepared and thorough exit procedures for employees can be very helpful—procedures that include an exit interview process; processes for the return of equipment and other property; and the return of information, including information stored on the cloud or other web-based storage media. And an acknowledgement and certification form that serves as a reminder and statement of intent to comply with confidentiality obligations can all be very helpful, and they are very important features of such exit procedures. There are some more substantive arrangements that are at least possible in appropriate circumstances. Agreements for terms with employees that cannot be terminated at will early on by both sides is one example of that. Deferred compensation arrangements with vesting conditions as incentive for employees to stay on the job and not leave for a competitor and even ERISA plans that contain non-competition restrictions, which, at least as a matter of federal, ERISA law can be enforceable.”

Watch the full episode and subscribe for email notifications: EmploymentLawThisWeek.com. See less -


Other MultiMedia by Epstein Becker & Green

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.