11th Circuit Rules Courts Must Consider Hardship to Employee in Deciding on Florida Noncompete Injunction

Florida's noncompete statute is, no doubt, harsh on employees and extremely favorable to employers. However, the 11th Circuit Court of Appeals just made it a bit less harsh.

The Court ruled that, although Florida law bans the courts from considering hardship on the employee in determining whether or not to enforce a noncompete agreement, Courts must balance the hardships between employer and employee in determining whether injunction is an appropriate remedy. An injunction is, in the case of noncompete agreements, basically an order that you must stop working for your new employer, stop contacting customers of the former employer, or otherwise directing you to cut it out, whatever it thinks you're doing wrong.

The reason this is important is because most employees are facing an army of lawyers and a former employer with a substantial amount of dollars to use against them, and once the judge orders them out of a job they are fighting with no ability to pay a lawyer. It's a loss due to lack of money rather than due to lack of legal defenses.

This ruling means that a Court should balance the financial hardship on the employee in determining whether to yank their job away. The alternative remedy to the employer would be to prove money damages, and most employers can't prove that the former employee working for a competitor cost them a dime. That's because noncompetes are being used as weapons to suppress wages and prevent competition more often than for any legitimate interest.

I actually had an opposing counsel recently brag that they had gotten the same employee fired from three different jobs this way. Despicable.

Here's what the 11th Circuit said about why the courts must consider hardship, even under Florida's horrid noncompete statute:

MacLachlan appeals the lower court’s application of section 542.335(1)(g)1 to the preliminary injunction analysis, which precluded any consideration of the potential hardship to MacLachlan when the court balanced the harms under Rule 65. 

Section 542.335(1)(g) governs the enforceability of restrictive covenants, not the enforcement of an already enforceable restrictive covenant. See Fla. Stat. § 542.335(1)(g). This is evident from the framing, content, and position of the section in the overall structure of the statute. The section begins: “In determining the enforceability of a restrictive covenant, a court . . . .” It then goes on to list four considerations that a court “shall” or “shall not” contemplate when determining whether a restrictive covenant is enforceable. § 542.335(1)(g)1–4. Case: 15-10985 Date Filed: 08/27/2015 Page: 9 of 11 10 One of these—applied by the district court to the motion for preliminary injunction—is that the court “[s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.” § 542.335(1)(g)1. Section 542.335(1)(g)3 adds that the court “[s]hall consider all other pertinent legal and equitable defenses.” What is clear from the framing and content of sections 542.335(1)(g)1–4 is that the mandated considerations therein are directed towards the determination of whether a restrictive covenant is enforceable. Accordingly, these sections should not be applied when determining the appropriate remedy. 

[footnote 1 explains: The statute concludes with instructions for enforcement: first, it addresses public policy considerations, § 542.335 (1)(i), then, specific remedies, § 542.335(1)(j), and finally, attorney’s fees and costs, § 542.335(1)(k). These sections are clearly demarcated from the determination of whether a covenant is enforceable. See, e.g., § 542.335(1)(j) (“The violation of an enforceable restrictive covenant creates . . . .”) (emphasis added). ] 

Here, the district court erred when it applied section 542.335(1)(g) in determining whether a preliminary injunction was an appropriate and effective remedy for the enforceable restrictive covenant. See § 542.335(1)(j). Having erroneously applied section 542.335(1)(g), the district court failed to consider any harm that MacLachlan would suffer if the injunction issued. 

If Florida, and not just federal, courts follow this analysis, it could be the beginning of some relief for Florida employees.

Is It Time To Start a Union At Your Workplace?

While you're enjoying your long weekend, thanks to the labor movement, enjoying a weekend at all thanks to unions, getting paid a living wage thanks to unions, and getting ready to go back to your safe workplace thanks to the labor movement, it's time to think about this: should you start a union at your workplace?

Many of my readers have tried to change things by complaining to management, to no avail.

If management isn't listening, if working conditions are terrible, if your coworkers and you are fed up, then start thinking about forming a union at work. It isn't that hard. You might even be able to form a micro-union to represent a single department rather than the entire workplace like 41 Macy's cosmetics workers did. Don't assume you're too small to have a union.

Here's how to get started:

1. Find some coworkers you trust (and be careful who you trust) and speak to them about whether they would be interested in finding out more about starting a union. You are legally protected when you talk to coworkers about working conditions (unless you're a supervisor or someone else not covered by the National Labor Relations Act). Talk to them about what changes you would like to see made and why you think you might need help from a union. You might also join an organization like Working America to familiarize yourself with the issues affecting workers and be part of a group even before you unionize.

2. Contact a union organizer. It may seem early to do this, but I spoke to a friend at AFL-CIO and he said that just contacting them is legally protected, and they keep records of your contacting them. This contact could be evidence if your employer fires you or retaliates for your protected organizing activities. Here's where to contact an AFL-CIO union organizer to find out more about the process. The organizer may tell you to do more work before they get involved, but they can give you some guidance from the beginning.

3. Figure out which union is right for you. Different unions represent different types of employees, and which union might represent you is not necessarily intuitive. There are unions for electrical workers, engineers, communications workers, actors, writers, office workers, pretty much any job you have, there's a union for you.

4. Form an organizing committee. Your coworkers from step one will likely form the core of an organizing committee. Your union organizer can help guide you with this. You will want to develop a plan of action and how to convince a majority of coworkers to join. You'll have to do some research on wages, benefits, and other workplace issues.

5. Get a majority to sign on. The union organizer will help you prepare cards to present to coworkers who want to join. If you can sign a majority, then you will get to have an election.

6. Be prepared for employer attacks. There is a whole army of lawyers and anti-union folks who will help employers fight unions. Your union organizer can help you get ready to deal with attacks and make sure you are legally protected.

7. Win the election. You'll have to convince your coworkers that a union is the right thing for them. Again, your organizer can help you with figuring out the best way to do this.

8. Negotiate a contract. Once you're unionized, you will negotiate a contract with your employer and they can't change terms and conditions of employment without negotiating first.

There are things you can do to improve your working conditions even before you think about unionizing, but sometimes a union is the only way to get an employer to take its workers seriously.

Why Ballot Selfies Are A Terrible Idea For Workers

Indiana is facing a free speech suit relating to a law they passed making it a crime to take a photo of yourself with your completed ballot. While the law is clearly overreaching and punishes the wrong people, I think the folks saying there is no risk of voter coercion are off the mark.

In the anti-employee climate that exists now, it's only a matter of time before employers start demanding proof of how you voted. Banning the practice of ballot selfies is one way to stop this practice before it starts. Think I'm overreacting? Remember these?

• I already wrote about a Florida CEO along with others like the Koch Brothers and other Mitt Romney  supporters who told employees if Obama was elected they would lose their jobs. 
• I also wrote about the Job Creators Network, that is training employers on how to indoctrinate employees on voting for the "right" candidates.

Your employer really, really wants to be able to tell you how to vote. If voter selfies are allowed, what's to stop these employers from demanding you produce your selfie before clocking in on election day? And what's to stop them from firing you if you didn't vote the right way?

Well, there are some laws in some, but not all, states protecting you from discrimination based on political affiliation. There are also some states with a bit of protection for voters:

• Michigan prohibits direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.
• Ohio, West Virginia, Pennsylvania and Kentucky ban employers from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.
• Oregon makes it illegal to threaten loss of employment in order to influence the way someone votes. 
• Washington State makes it illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
• In California, Colorado, New York, North Dakota and Louisiana it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.
• In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

Some counties and municipalities have additional protections for voters, but the one thing that doesn't protect you, unless you work for government, is the First Amendment. You have no free speech rights if you work for a private employer. The First Amendment only applies to government action.

I think you should never take a ballot selfie for this reason. It's a terrible trend that will only be abused by unscrupulous employers if it continues. What I think the laws banning them got wrong are that they are targeting the voters rather than those who may coerce them. 

I'd propose a very simple law: make it a felony to require anyone to disclose whether they voted or for whom they voted in order to continue their employment, their housing or their access to any public accommodation. I'd go one step further and make it illegal for employers to discriminate against any employee for voting, not voting, for the way they voted, and for supporting or not supporting any candidate or party. 

Punishing voters for their selfies is probably a First Amendment violation, but punishing coercion should be the law.

The War Against Florida Employees Continues With New Computer Law

Starting October 1, 2015, Florida employees can expect even more attacks by employers and former employers, thanks to the new Computer Abuse and Data Recovery Act passed by our legislature and signed by our multimillionaire Governor. This law has zero protection against employer unauthorized access of employee computers and devices. It only protects computers owned by businesses.

Message by legislature to Florida employees: you don't matter.

Message by legislature to Florida employers: how may we serve you?

It's meant to prevent hacking, but there's some nasty language in there that allows employers to sue employees for any "unauthorized" access of a computer. Your "authorized" access terminates immediately upon the cessation of your employment. So if you are fired and then print out the emails you sent to HR complaining about discrimination or blowing the whistle on illegal activity before you leave, you can possibly be sued.

It's a new law, so we can expect much litigation over what it means. What it doesn't mean, at least in my opinion, is that you have any legal restricting on printing and taking home evidence of your discrimination or whistleblower complaints before you are fired. Will some management-side lawyer try to argue that you aren't allowed to take home your evidence? Maybe.

My best suggestion is to send complaints from your home computer. Be careful out there. And vote better. The Florida legislature is not the friend of Florida employees.

Senator Franken Bill To Ban Noncompetes For Low Wage Workers Would Be A Good Start

After the Jimmy John's noncompete for sandwich maker debacle, some members of Congress asked the FTC and the DOL to investigate the sandwich chain for potential antitrust and labor law violations. Some states have moved to ban noncompetes altogether or partially. Now some Democratic members of Congress taken another step toward eradicating abusive noncompetes.

Senator Al Franken has introduced the Mobility and Opportunity for Vulnerable Employees (MOVE) Act that would ban noncompetes for employees making $15/hour or less. It would also require employers to disclose to prospective employees when they may be asked to sign a non-compete agreement upon taking a job. The bill is co-sponsored by Senators Warren, Murphy and Blumenthal.

I don't think this bill has a snowball's chance in hell of getting through the Republican-controlled Congress, but if it did, it would be a good start. This week alone I have encountered two companies that have required every single employee, from the janitor to the CEO, to sign noncompetes. That means secretaries, receptionists, copy clerks, and data entry clerks. There is no possible legitimate reason for these low level employees to have noncompetes. Unless legislatures stop this kind of abusive practice, these low-level employees are going to be virtual slaves.

What is the effect of low-level employee noncompetes? I can think of several:

• Wages are suppressed as employers figure they don't have to give wages to trapped employees
• Discrimination and whistleblower retaliation rise as employers feel they can abuse trapped employees
• Competition is suppressed, which is why these agreements violate antitrust laws
• Employees can't afford to fight, so they are stuck

I'd like to see more protections for employees. For instance, undue hardship should be a mandatory consideration before any injunction is issued. Here in Florida, the legislature has banned courts from considering hardship on the human people that are employees, so the courts can only consider hardship on the corporate "people" that are employers. I think this is an equal protection problem.

If employees are terminated without cause, noncompetes shouldn't be enforced unless the employer pays out the noncompete period.

If you think that Senator Franken's bill is a good idea, call your senator and tell them so. Only if human people step up and fight for their rights against corporate "people" will anything be passed to protect workers.

EEOC Says Sexual Orientation Discrimination Is Already Illegal

This is my first post (other than the blog carnival) since I got a concussion. A lot has happened in the interim, so I have a lot to catch up on. This week I want to cover what I think is probably the most important development in discrimination law in a long time. That is, the EEOC has issued a decision that Title VII's prohibition against sex discrimination also prohibits sexual orientation discrimination.

But this is nothing new, you say? Sure, EEOC has been opining that transgender employees are protected under sexual stereotyping. They've also overturned "unable to determine" dismissal letters, ordering investigators to process sexual orientation discrimination charges under the category of sexual stereotyping. 

What's different is that this is the first time the agency has recognized that sexual orientation discrimination is flat-out sex discrimination. That is, the employer is treating the employee differently because of their gender. Here's the reasoning:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. "Sexual orientation" as a concept cannot be defined or understood without reference to sex. A man is referred to as "gay" if he is physically and/or emotionally attracted to other men. A woman is referred to as "lesbian" if she is physically and/or emotionally attracted to other women. Someone is referred to as "heterosexual" or "straight" if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted." It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and. therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.  

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk , but does not suspend a male employee for displaying a photo of his female spouse on bis desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. ("Such a practice does not pass the simple test of whether the evidence shows 'treatment of a person m a manner which but for that person's sex would be different.'"). The same result holds true if the peron discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.

(citations omitted).

Put more simply, sexual orientation discrimination is sex discrimination because, if Jane loves Janice and she is discriminated because of that, had Jane been a man and loved Janice she would not have been subjected to discrimination. But for her gender, Jane would not have been discriminated against for loving Janice.

This is an argument I've made for years and people looked at me like I was insane. It's good to be vindicated.

This goes well beyond sexual stereotyping, which didn't cover all sexual orientation claims; it only applied where gay and lesbian employees didn't fit into stereotypical gender roles.

Will the courts apply this reasoning? I'm guessing some will and some won't, and we'll be back in front of the Supreme Court. If you ever thought that your choice of President doesn't matter, think of those Supreme Court appointments. What will the Court look like when this case finally gets to them? That's up to you.

Employment Law Blog Carnival: Summer Holiday Edition

I happen to be smack between summer vacations right now, so vacation is definitely on my mind. Odds are, you've either taken a summer vacation already or are getting ready to. Or are you like one of those people in the commercial who don't use your paid vacation days? I agree with the kid who says, "That's the stupidest thing I ever heard." What the heck are you working for if it isn't to pay for things like travel and fun?



Everyone knows about the Fourth of July, but did you know that July is chock full of holidays? You've already missed International Nude Day, Compliment Your Mirror Day, International Cherry Pit Spitting Day and Gruntled Workers' Day (time to calendar these for next year). But it's not too late. If you haven't already celebrated your independence from work this month, here are some holidays you may want to take time off to celebrate:

July 15 is Be a Dork Day. But don't be a dork and get the overtime rules wrong or you'll pay (and pay and pay) for it later. Read Eric Meyer's Five ways for proactive employers to prepare now for the new OT rules at The Employer Handbook while visiting the Cesar Chavez Monument in Keene, California if you want to avoid terminal workplace dorkdom.

July 18 is International Nelson Mandela Day. Maybe a trip to South African isn't in the cards this year, but you can honor him by learning more about discrimination. Listen in on What is Workplace Discrimination? A Podcast Interview with Casey Sipe at Blogging 4 Jobs by Jessica Miller-Merrill to catch up on the latest info about workplace discrimination while visiting The King Center in Atlanta.

July 20 is Ugly Truck Day, and ugly trucks seem to go in hand with Confederate Flags. In honor of this holiday, check out Daniel Schwartz's post at the Connecticut Employment Law Blog, Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? while heading to South Carolina or the nearest monster truck rally.

July 20 is also National Get Out Of The Doghouse Day. There's no better way to get in the doghouse with employees than to screw up on Family and Medical Leave. In the Employment Essentials blog by Jana Grimm and Marty Saunders you can read about the latest case on this sometimes confusing law, Worth the Price Of Admission: Third Circuit Defines "Overnight Stay" Under The FMLA while staying overnight in your favorite hotel.

July 24 is Tell An Old Joke Day. Some of those old jokes are, let's say, NSFW. But when can an employee get away with making racist comments at work? Jon Hyman's post Racist comments as protected concerted activity (really!) at the Ohio Employer's Law Blog will enlighten you while you're on your way to visit your local comedy club.

July 24 is also National Tequila Day. You can celebrate by reading about English-only workplace rules. Michael McClory's post Mid-Summer Pop Quiz: Cold Beer From The Enforcement Agencies? at Bullard's Employment Law Age gives you a pop quiz you can take while heading to your local Mexican restaurant for a pitcher of margaritas.

July 25 is National Dance Day. Since there's lots of dancing at weddings, and there are lots of same-sex weddings going on nationwide, this is a fine day to read Heather Bussing's Religion v. Law post at HR Examiner while visiting the Supreme Court in DC.

July 26 is All Or Nothing Day. It's a good day to talk to your boss about paying all the expense reimbursements you are owed. Sharlyn Lauby's Company Refuses to Reimburse Expenses – Ask #HR Bartender may help. And if you finally get reimbursed, you can take that weekend vacation and celebrate.            

July 26 is also Disability Independence Day. You can celebrate by reading Hanna Weiss's post at Blogging 4 Jobs, What Companies That Hire with Disabilities Won't Tell You while visiting the American Veterans Disabled for Life Memorial next to the U.S Botanic Gardens in DC.

July 26 is National Parents' Day (a popular day for holidays!). To understand the rights of soon-to-be parents, read Robin Shea's EEOC’s revised pregnancy guidance: Now, just barely more flexible! at Employer and Labor Insider while on your way to a romantic getaway for two (while you can) or Disney if that ship has sailed.

July 27 is Walk On Stilts Day. If your boss thinks it's a good idea to make you walk on stilts at work, is it a constructive discharge? Read Stuart Rudner's post Deconstructing Constructive Dismissal to find out. Sounds like a good day to visit the circus or the Ringling Brothers Museum.

July 30 is the International Day of Friendship. Can't we all just get along? It's a good day to revisit how we treat transgender employees. Janette Levey Frisch's post at The Employerologist, What OSHA Has To Say About Restroom Access For Transgenders just might help us treat transgender employees a little better.

July 30 is also Medicare's Birthday. You can celebrate the 16.4 million people who have gained healthcare coverage thanks to the Affordable Care Act by reading Ari Rosenstein's What the ACA Supreme Court Decision Means To Small Employers at the Small Biz HR Blog while patronizing a small bed and breakfast.

July 31 is National Talk In An Elevator Day. An elevator may be just the place to corner a witness you want to talk into providing an affidavit. But will it be admissible? Find out by reading Robert Fitzpatrick's A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible at Fitzpatrick On Employment Law while headed to the Empire State Building.

So c'mon folks. Use those vacation days and enjoy your summer. Because, as they say in the commercial, one more day is priceless.