Restrictive Covenants: What you should know

 

There was a time when people worked for an employer from the day they left high school until the day they retired. While that might still occasionally occur, it is usually no longer the case.  These days, it is not unusual for someone to start in a job, perhaps even as a temp or a contractor, be trained in their new position and then be “laid off” after a short time; or leave the position for a better one; or even start their own company providing the same or similar services as their former employer. However, in our competitive world, it can be very problematic when a former employee takes information learned on the job with him or her to a competing employer.  

An employer may have found a way to make a better mousetrap or to cure the common cold. Now their former employee goes to work for a competitor with that information.  The former employee also may have had access to client lists as well as trade secrets, pricing and procedures that the employer has invested time and money in developing.  How does the employer protect itself from this potential poaching?

The answer is a restrictive covenant in an employment contract.  This is a clause in the contract which restricts the ability of the former employee to go to work for a competitor or start their own similar business, using the information they gained in their former position. The restrictive covenant cannot last forever and can only restrict a former employee’s post-employment activities for a limited period of time after employment ends.  Examples of a restrictive covenants are: a former employee may not work in the same industry for a certain number of years; and/or the former employee cannot work in the same industry in a certain locale (a radius of a certain number of miles from their former employer); and former employee is not permitted to contact any of the former employer’s customers; and/or a former employee may not disclose certain information learned in their former position.

It is obviously best for a society if people can and do work. Therefore, the general rule is that such restrictions on employment are against public policy.  So, most laws require a restrictive covenant to be as narrow as possible, as a business law lawyer Pottstown PA trusts. The purpose is to protect a legitimate interest of a business.  It cannot be so restrictive as to keep a person from ever working again in the same or similar business as their former employer’s business.

The reality is that if a person wants a job, they may have to sign such an agreement.  But employers cannot use a restrictive covenant that is so broad that a person cannot make a living if they leave their job for any reason.  If the restrictive covenant is too broad, it may not be enforceable at all.  An employer to carefully consider whether a less restrictive clause would still protect the employer’s interests. The test used by courts is the “reasonableness” of the restriction.

When deciding reasonableness of a covenant, courts may consider, among other things, the length of time of the restriction; the geographic area of the restriction; whether the such restrictions are usual in the type of business at issue.

The bottom line is that restrictive covenants can be useful in protecting an employer’s business interest, but it cannot be so restrictive that it prevents a former employee from making a living in the field in which they have experience and in which they have been trained.

 

Thanks to our friends and contributors from Rick Linn Attorneys at Law for their insight into restrictive covenants.

 

What Is Workers Compensation?

An Overview of Workers’ Compensation Benefits

If you’re injured at work, it can be a stressful and difficult time, especially if the injury is serious. If you’re unable to work as a result, you may be concerned about how you’re going to pay your bills. As an injured employee, you have the right to certain benefits. This is where workers’ compensation comes in.

Injured Workers Can Receive Certain Benefits

Under the workers’ compensation law, employees who are injured on the job can receive medical care and other benefits to help them recover from their injury. The process generally works like this:

  1. The first thing an injured worker needs to do is to file a claim for workers’ compensation. This is done by immediately notifying your employer of your injury and asking to see a doctor.
  2. Your employer’s insurance provider, or the employer itself, has the right to choose the doctor who will facilitate your care.
  3. If you refuse to submit to a medical exam or you fail to keep your medical appointments, your workers’ compensation benefits are at risk.
  4. If you fail to follow the orders laid out by your doctor, you risk losing your benefits as well.

Your Own Medical Doctor

You can see your own doctor for an examination of your work-related injury, but you may be responsible for the costs associated with seeing your own doctor. You may be able to convince your employer or the insurance company to allow you to seek treatment by a medical provider of your choice.

When the doctor who provides your treatment determines you’ve reached your maximum medical improvement, you can ask for an independent medical exam to ensure that you are recovered from your injury. If there are differing medical opinions as to whether or not you are fit to return to work, contact a workers compensation lawyer for legal guidance.

Additional Benefits

In addition to receiving medical care for your injuries, you are entitled to receive wage replacement benefits if you are out of work for more than an allotted period of time. You’ll receive a certain percentage of your average weekly wages which is meant to help you get by as you recover from your injury. Unfortunately, injured workers are not fully reimbursed for lost wages, and there’s also a maximum on how much wage replacement benefits you can receive in a given year.

Permanent Disabilities

Once you’ve reached your maximum medical improvement status and you return to work, your benefits will terminate. However, there are some individuals who suffer permanent disabilities and cannot ever return to work. There are some benefits in place in the workers’ compensation system that pay benefits to those who never fully heal from their injuries. This is determined based certain criteria including the level of your impairment and the type of disability you suffer.

Retaining a Workers’ Comp Attorney

The process of filing a claim for workers’ comp can be easy as the laws are there to protect those injured on the job. However, some insurance companies and employers make the claims process a nightmare. This is why it’s best to retain the services of an experienced workers’ compensation lawyer Milwaukee WI relies on, who can help to navigate you the claims process.

Hickey & Turim, SCThanks to our friends and contributors from Hickey & Turim, SC for their insight into workers compensation.

Slip and Fall Cases Require Specific Evidence

Over the course of experience as a personal injury lawyer Memphis, TN  comes to for advice, we have learned that many people mistakenly believe that if they fall down in a place of business, then the business is automatically liable and must pay for their medical bills.  But nothing could be farther from the truth. Slip and fall cases are not “strict liability” cases. Rather, you must evidence of negligence in order a recover for your injury.

In a slip and fall claim,  the plaintiff (the person filing the lawsuit) must establish that (1) the condition was caused or created by the owner, or (2) if the condition was created by someone else, that the owner had notice that the condition existed before the accident.

In a recent Tennessee slip and fall case, a woman was walking into a hospital, and as she approached the reception area, she slipped and fell in a clear liquid on the floor. She filed a premises liability suit against the hospital. The hospital filed a motion for summary judgment (a way to get the case dismissed before a jury trial) on the basis that the woman could not prove notice of the alleged spill. In her response, the woman alleged that two hospital employees admitted that the spill was Sprite cola, and they even said that they had contacted housekeeping to clean it up.  However, no depositions or sworn testimony was ever taken, and thus the plaintiff failed to produce any evidence regarding what the hospital knew about the spill, how long the spill had been there, or what had initially caused the spill.

In other words, the woman’s only “evidence” was her unsupported allegation.  And that isn’t good enough to win a case. Because she failed to produce actual evidence that the hospital had notice of the liquid, her case was dismissed. Court rules require that specific evidence be presented in certain ways, and that is why you should always have an experienced the personal injury lawyer to help you properly support and prove your case in court.

Wiseman BrayThanks to our friends and contributors at Wiseman Bray PLLC who have significant experience fighting for injury victims in Tennessee.

A borrowed employee caused your injury? No problem

So your client was injured at the hands of a borrowed employee, or borrowed servant?  What next?  The “borrowing” company is denying liability because it wasn’t their employee who caused the accident leading to the injury, and the actual employer of the person causing the injury denies liability because its employee wasn’t in the “course and scope of employment” when the injury occurred.

The borrowed servant doctrine is available for instances such as this.  Steve Harrelson has used the borrowed servant doctrine in the U.S. District Court for the Eastern District of Arkansas for a high-six figure verdict.  Recently, the 5th Circuit Court of Appeals reaffirmed the Jones Act Borrowed Servant Doctrine in negligence cases.

How the borrowed servant doctrine works

The borrowed servant doctrine is the common law principle that the employer of a borrowed employee, rather than the employee’s regular employer, is liable for the employee’s actions that occur while the employee is under the control of the temporary employer. It comes into play when an employee may be subject to the control and direction of an entity other than the primary employer. There are several situations where this occurs, including temporary staff who work for a temporary staffing agency, property managers who work at a specific property, employees who are assigned to work exclusively at a client’s location, contractual relationships between a general contractor and subcontractor, or a number of any other scenarios where one company “borrows” an employee for another company to conduct its work.

In such situations, the employer is considered the “direct employer” and the “borrowing” business is the “special employer.” While the laws vary by state, it is important to understand the nature of the relationship so that there are no gaps in insurance protection that allow civil suits.

Factors considered when determining if the Borrowed Servant Doctrine applies

The nine factors that determine whether an employee is the borrowed servant of a company, as reaffirmed by the Fifth Circuit, are:

Who has control over the employee and the work they are performing, beyond mere suggestion of details or cooperation?

Whose work is being performed?

Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?

Did the employee acquiesce in the new work situation?

Did the original employer terminate his relationship with the employee?

Who furnished tools and place for performance?

Was the new employment over a considerable length of time?

Who had the right to discharge the employee?

Who had the obligation to pay the employee?

Many times, the answers to these questions are not clear without a proper investigation.  The facts and circumstances present at the worksite need to be investigated, as do the relationships between the parties involved.

For these reasons, it is imperative to hire a veteran litigator and experienced personal injury lawyer Little Rock AR trust who has been involved in strategizing personal injury claims for years.

Harrelson Law FirmThanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the borrowed servant doctrine in personal injury cases.

2 Common Causes of Back Pain

You’re at your desk and you start to make it to the break room, but then you feel it.  That tightness and pain in your lower back again.  It’s been like that for months, but you’ve been putting off going to a back pain doctor Rockville MD trusts for help.  You start to wonder, ‘How long has it been since this started giving me trouble?  A week?  A month?  How did this even happen in the first place?’
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This is a common scenario we hear from our patients all the time.  But instead of wanting to help our patients at this stage, we strive to help our patients before they get to this point and help them take their health into their own hands.  Preventative maintenance and exercise on a regular basis  can drastically decrease the chances of dealing with back pain.  But how do most people get to the place where they’re hobbling and bent over in the chiropractor’s office?
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Here are the 2 Common Causes:
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Not Moving
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It always seems easier said than done, but moving is some of the best medicine for your body.  As a culture we sit far too often.  And through the day we shift from one comfy surface to another without ever thinking about what that does to our spine.  When we get up from our beds and sit in our cars or at our desk, those spots are meant to feel good.
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But that comfy feeling is wreaking havoc on our posture and gives little to no stability for our spine.  When our spine doesn’t have that support, it is compromised and puts too much pressure on our low back.  Over time we start to compromise, and what was first a little irritation to our low back is now a chronic problem.
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We have to replace those hours of sitting and break them up with standing.  That helps us better align the spinal column and feel better.  Remember, this might feel a little difficult at first but your back will thank you later.
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Bad lifting Mechanics
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We’ve all been there.  We look over in the office and think we can pick up that water jug, no problem.  You don’t even bend your legs.  You just wrap your arms around that jug of water and try to thrust it onto your shoulder.  And before you could even lift halfway up, you hear that ‘pop’ in your back.  We’re all guilty of underestimating how much things weigh.  From office supplies to toddlers, we underestimate how much work it’ll take to pick that thing up.
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The reality is the body responds a lot better by not trying to shift position based on the weight, but performing the same action if the object is five or 50 pounds.  Why is this?  Because the body actually does a lot better when the body is warmed up with the same action before the heavier lifts occur.  Look at animals and how they perform similar stretches of common actions before performing it at a high speed.  This is the same reason we need to work on proper body mechanics.  If we only perform solid movements when we think we need it, we’ll forget all about them when we try to perform a simple task.  That is what will break the camel’s back.
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Advanced Wellness CenterThanks to our friends and contributors from Advanced Spine & Wellness Center for their insight into common causes of back pain.

How Does Workers’ Compensation Work?

Workers’ Compensation works differently from state to state. In Wisconsin, Workers’ Compensation is an administrative area of the law that is overseen by a state agency known as the Department of Workforce Development. Below is an outline of how Workers’ Compensation claims typically work in the state of Wisconsin.
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Every Workers’ Compensation claim has a beginning, middle, and end. In the beginning stage, this is how a Worker’s Compensation claim works…
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First, an employee sustains an injury at work. Second, the employee reports the injury to his/her supervisor. It is important that the employee reports the injury in both verbal and written form. A formal incident report must be completed after a workplace injury occurs. Third, the employer reports the injury to their Workers’ Compensation insurance company. That is how the beginning stage of a Worker’s Compensation claim works.
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After the beginning stage concludes, a Workers’ Compensation claim evolves to the middle stage. In the middle stage, this is how a Workers’ Compensation claim works…
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Fourth, the Workers’ Compensation insurance company contacts the employee and begins an investigation of the employee’s claim. This can include, but is not limited to a recorded statement from the employee and a request for a medical authorization that allows the insurance company to get access to the employee’s medical records. Fifth, after the investigation is completed, the insurance company determines whether they are going to continue to pay an employee Workers’ Compensation benefits. If after the investigation is completed the insurance company believes that the employee sustained a compensable work injury, benefits will continue. If there is a red flag or the medical treatment does not seem to be working, the insurance company may schedule what is called an independent medical evaluation. If this occurs, the employee is required, by law, to see a doctor of the insurance company’s choice. After the independent medical evaluation is completed, a report is drafted which either concedes (continues to pay) or denies the employee’s claim for workers’ compensation benefits. That is how the middle stage of a Workers’ Compensation claim works.
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After the middle stage concludes, a Workers’ Compensation claim moves to the end or final stage. In the end/final stage, this is how a Workers’ Compensation claim works…
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Sixth, if the claim is denied by the insurance company, the employee can hire a Milwaukee WI workers’ compensation attorney that handles Workers’ Compensation claims. Seventh, the attorney secures a report from the employee’s treating physician that refutes the report of the independent medical examiner. Eighth, the attorney files a claim/lawsuit on behalf of the employee using the medical support of the employee’s treating doctor. Ninth, the matter either proceeds to a formal hearing or the parties are able to settle/resolve the claim. That is how the end/final stage of a Workers’ Compensation claim works.
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There are several more steps that occur throughout the Workers’ Compensation process. However, the article above provides a general outlook of how a Workers’ Compensation claim works in Wisconsin.
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hickey-turim_logo_299x68  Thanks to our friends and contributors from Hickey & Turim, S.C. for their insight into criminal defense practice.

What are the Basic Components of a Will?

There are a number of basic components to a Will.  A  Will needs to be clear and  unambiguous.  The common beginning component of a Will is for the Will-maker, the testator, to identify clearly what his or her intention is in drawing up the Will.  It should be clear at the outset that what the testator is doing is to set forth his or her final instructions as to how and to whom his or her estate is to be distributed.  The next basic and practical component of a Will is for the testator to direct that all of his or her final expenses be paid from the net proceeds of the estate following the estate’s administration.
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Another basic component of any Will is to identify the beneficiaries who will receive property that comprises the testator’s estate.  If a testator is married, he or she will normally name his or her spouse as the primary recipient of the estate’s assets.  If the testator has children, then it is normal and customary to provide that if his or her spouse predeceases them, that the parties’ children then will receive the estate’s proceeds.  Just as important to the Will making is that if a testator elects, he or she can consciously choose to disinherit one or more of his or her natural heirs.  Heirs are normally children or other relatives who are in line to receive property from the testator at death.  Sometimes, a child or other family member will grow apart from the testator, have very little contact with the testator, and therefore, the testator may decide not to leave any property to this alienated person.  If that’s the case, then the testator must clearly state that it is his or her wish to leave nothing for this person.
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Another basic component to a Will is the devise of personal property to named beneficiaries.  This can be done in one of two ways.  The first method of making gifts of personal property is to make what is known as a specific bequest.  An example of a specific bequest is where a grandmother gives her diamond wedding ring to her granddaughter.  A specific bequest can be an item of personal property such as a diamond ring, a set of china, a favorite shotgun, etc., or it can be a sum of cash.  Specific bequests are normally made by the estate’s personal representative – either an executor or administrator – prior to any distribution of the residuary estate if made in cash.
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Not only are those who are to receive property named as beneficiaries in a Will, but another basic component of a Will is to state how the property is to be distributed to those named as beneficiaries.  If minors are named as beneficiaries, a basic component of the Will may be to provide that a minor’s share of the estate or a specific gift is to be held by an adult parent, guardian, or custodian until the minor is old enough to manage the property properly.  Another method of devising a means by which certain beneficiaries are to be gifted property is through trust provisions incorporated in the Will, or what is commonly referred to as a testamentary trust.
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After designation of to whom and how specific property is to be distributed in the Will, all property remaining is devised to named beneficiaries by what is commonly referred to as the residuary clause.  This is a catch-all provision that provides that all remaining property not previously designated for distribution is to go to certain named people.  This is basic to any Will.  Again, if certain of these named beneficiaries predecease the testator, then provision is normally made for successors in interest, or this property would increase the share of the surviving beneficiaries, by default.
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Another basic component of any Will is for the testator to appoint the individual, or individuals that he or she wants to administer her or his estate upon their death.  These people are known as executors.  Again, it is important to name successor executors if the person chosen does not survive the testator.
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Finally, a basic component of a Will can be to make special provisions for those who are not able to properly manage the property left to him or her either due to being a minor, disabled, or incompetent.  This can be accomplished through a trust, or what is termed a “special needs” trust.
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These are the basic components of a Will.  Consult a Peoria IL probate attorney in your area who is experienced in the field of Will drafting.
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SmithWeerLogo_75Thanks to our friends and contributors from Smith & Weer, P.C. for their insight into the importance of a will.

OCAHO and OSC Continue to Penalize Employers for Immigration Violations

Employers continue to need to be concerned with two Federal agencies, the Office of Chief Administrative Hearing Officer (OCAHO) and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Both agencies continue to be active reaching decisions and settlements involving employers.

OCAHO hears cases brought by Immigration and Customs Enforcement (ICE) related to proposed penalties arising out of inspections (also called audits) by ICE for I-9 violations. Furthermore, individuals can file complaints with OSC alleging discrimination on the basis of citizenship status or national origin. (For national origin cases, the employer must employ between four and 14 employees. If it is more than 14 employees, Equal Employment Opportunity Commission (EEOC) has jurisdiction.) OSC has the ability to bring these complaints before OCAHO, settle the complaint, or give the individual the right to bring an action before OCAHO.

Unfortunately, in some of the cases brought before OCAHO, employers try to represent themselves; presumably to save legal fees. But, usually this is a short-sighted view; instead, employers should have a Nashville TN immigration attorney– especially one who is knowledgeable about immigration compliance matters. (Most immigration attorneys do not handle employer immigration compliance cases.)

In calendar year 2016, OCAHO has issued 12 substantive decisions related to penalties for I-9 violations. It has also issued seven decisions involving allegations of citizenship status or national origin discrimination.

Concerning the decisions involving penalties for I-9 violations, the highest assessed penalty was to Golden Employment Group, which received a fine of $209,600 for 465 Form I-9 violations, including a failure to present or prepare 390 Form I-9s. Although Golden Employment Group was represented by counsel, the counsel was not an immigration attorney. It is unknown whether that would have impacted the litigation but if Golden Employment Group had retained an immigration attorney to perform an internal I-9 audit before ICE conducted its audit, it may have had a major impact on the severity of the penalties. Specifically, an immigration attorney could have located the errors by the employer and directed the correction as many as possible.

Also, during 2016, the OSC has entered into 10 settlement agreements with employers. Almost all of the cases investigated by OSC and found to be meritorious are settled by the payment of civil penalties and/or back pay. The highest civil penalty was $65,000 against the American Association of Colleges of Podiatric Medicine (AACPM).

Immigration compliance for employers – I-9 forms, E-Verify, and no discrimination for citizenship status, is a very complicated area of the law. All employers are well-advised to seek an immigration attorney with immigration compliance experience to assist in navigating the rough waters of ICE, OCAHO, and OSC.

SBL photoThanks to our friend and blog author, Bruce Buchanan of Sebelish Buchanan Law PLLC, for his insight into employment law and immigration violations.

Safety Tips for Workers in Highway Work Zones

Highway work zones can be very dangerous for individuals working in the construction injury. Injuries can range from workers being struck by cars, to falling, to sustaining significant electrical shocks. Additionally, the chance of injury tends to increase for individuals working in severe weather conditions. While most highway work is conducted in the summer or warmer months, heavy rains and winds can present substantial hazards to individuals working on highways. While it is expected that drivers will slow down while driving through highway work zones, substantial injuries including, but not limited to death, can occur when drivers are either reckless or irresponsible. If you or someone you know sustains an injury while working in a highway zone, it is extremely important that you report the injury to the employer and seek immediate medical attention. If you have any questions about how to report the injury or where to seek medical treatment, it is highly recommended that you contact a Milwaukee WI workers’ compensation lawyer.

Often times, individuals working in the construction industry do not recognize or appreciate the severity of their injury until they either return home or take a break from working. This is due to both adrenaline (at the time of injury) and the individual’s general desire to continue working or complete the task at hand. It is also normal for workers to be concerned about losing their jobs in the event that they report an injury or miss time from work. While these are valid concerns, workers’ compensation lawyers will tell you that even the most minor of injuries should be reported to the employer. If the injury is not reported immediately and it ends up being something of significance, there is a legitimate possibility that the workers’ compensation insurance company will deny the claim. If your claim is denied by the insurance company, it is extremely important that you contact a workers’ compensation lawyer.

Please note that most workers’ compensation lawyers work on a contingent fee basis. This means that they do not receive payment or a fee unless they win. If you have questions or concerns about an injury sustained in a highway work zone, it is important that you contact a local workers’ compensation lawyer.

While highway work zones can be dangerous, taking the right precautions can eliminate both minor and severe injuries. These precautions include proper lifting techniques, documenting electrical wires and hazards (prior to initiating the task assigned), and wearing proper apparel that is easily recognizable by drivers.  In the event that these precautions are not taken and an injury is sustained, please make sure to follow the steps discussed above and contact your local workers’ compensation lawyer. These steps may help to protect your health, safety, and overall well-being.


 

hickey-turim_logo_299x68Thanks to our friend and blog author, Josh Turim of Hickey & Turim, S.C., for his insight into workers’ compensation practice.