Doing Business In California – When Can an Out-of-State Employer’s Non-Compete Provision Stand?

Most companies doing business in California are aware of California’s long-standing public policy in favor of employee mobility over an employer’s ability to impose a provision prohibiting an employee from going to work for a competitor post-termination, which is embedded in California Business & Professions Code Section 16600.  Particularly where the employer is headquartered outside of California, in a state where non-competes are enforceable under the appropriate circumstances, some employers have attempted to implement choice-of-law clauses in employment agreements with California employees that purport to require any dispute between the parties to be governed not by California law, but rather by the law of a state more favorable to the enforcement of non-competes.  As a general rule, California courts steadfastly refuse to enforce such clauses, stating that the strong public policy and statutory prohibition against non-competes in California overrides any contractual provision designating another state’s law as controlling as to the validity of a non-compete clause.  That said, if the employment agreement also includes a forum selection clause requiring any dispute to be heard in another state, some California courts do permit the action to be transferred to another state, leaving the employee to rely on the courts of that state to apply California choice-of-law principles to find the non-compete provision invalid. Continue Reading

Webinar: From #MeToo to Marijuana and Everything in Between: An Update on US Employment Law in 2018


Squire Patton Boggs presents a webinar to provide an overview of the past year’s most significant labor and employment decisions and emerging areas of the law in the United States.

On 5 December 2018 at 4 p.m. GMT (5 p.m. CET, 11 a.m. EST, 8 a.m. PST) Jill Kirila, our US Labor & Employment Practice Group Leader, will highlight employment law court decisions and legislative and regulatory changes, as well as offer insight on forthcoming decisions and practical tips to help you manage your workplace.

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Employee Data Subject Access Requests: Part 3 – DSARs and proportionality – limiting the search (UK)

Some DSARs can be wonderfully straightforward:

“Can I have a copy of my personnel file?”

“Absolutely, here you go”

“Can I have a copy of the notes from my appeal hearing?”

“Of course, all yours. Any time”

However, a large number of DSARs submitted by employees are far more taxing:

“Can I have all personal data you hold about me since I started working here 10 years ago”

“Erm” [panic sets in, cold sweat envelops HR Manager.]

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Written confirmation not a reasonable adjustment for a queasy employee (UK)

Here is an interesting little question about how far an employer needs to formalise steps taken to accommodate an employee’s disability.

Mr Brangwyn went to work for South Warwickshire NHS Foundation Trust in 2008 as Occupational Therapy Technician.  This was not directly a medical role but did involve some time escorting patients around the building from ward to treatment and back.  In May 2011 he was diagnosed with a serious and worsening phobia of “blood, injections and needles”, a more than slightly ill-starred development for someone working in a hospital.  The effect of this was that just being near the bed bay areas on the wards made him feel ill and stressed.  The furthest he could venture in was to the waiting area near the ward door.  Knowing of this diagnosis, the Trust told Brangwyn orally that it would be okay for him to collect and deliver patients from and to that area, and that he would not have to get the patients out of bed onto chairs or trolleys or otherwise go into the bed bay area itself.  And so it was, that oral commitment being fully respected by the Trust from then onwards.

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Employee Data Subject Access Requests: Part 2 – It’s complicated – extending the DSAR deadline (UK)

In the second of our five part blog series on Data Subject Access Requests (DSARs), we examine the notion of “complexity” and how that might affect the way you respond as an employer to a DSAR.

What is “complex”?

Under the General Data Protection Regulation (GDPR), data controllers must respond to DSARs “without undue delay and in any event within one month of the receipt of the request. The period may be extended by two further months where necessary, taking into account the complexity and number of requests.”

However, there is little to no guidance on what would be considered “complex” for these purposes.

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Employee Data Subject Access Requests: Part 1 – where are we now and what questions remain? (UK)

Data AccessJust when we thought we were getting to grips with some of the stickier issues around Data Subject Access Requests (DSARs), then along comes the EU General Data Protection Regulation (GDPR) and numerous new ambiguities over how its DSAR provisions might work in practice.  We are waiting for the ICO’s guidance and update on its Code of Practice which will hopefully provide a bit of clarity but until then, in this five part blog series, we will offer our own views on the relevant practical concerns for employers facing DSARs.

As recently as 2017, a number of landmark legal rulings were issued that offered a degree of clarity on some of the thornier issues around DSARs in the employment context.

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Webinar: Hot Employment Law Topics in Asia – What Employers Need to Know

WebinarSquire Patton Boggs presents a webinar to discuss current hot employment law topics in Asia.

Asia has, without doubt, some of the most challenging and diverse sets of employment laws in the world. Legal counsel and HR professionals in Asia often hold a remit that cuts across multiple jurisdictions and have the unenviable task of staying on top of frequently changing legislation.

On 21 November 2018 at 9 a.m. GMT (10 a.m. CET, 5 p.m. SGT), partner Julia Yeo – our Singapore-based regional hub employment specialist – will focus on key developments in 2018 in the Asia region, including:

  • South East Asia (Cambodia, Indonesia, Laos, Malaysia, Singapore, Thailand, The Philippines, Vietnam)
  • China
  • India
  • Japan
  • South Korea
  • Taiwan

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The National Labor Relations Board Is Signaling A New Approach To Failure-To-Bargain Charges (US)

The National Labor Relations Board has recently signaled another key change for unionized employers. The Board may be on the verge of significantly expanding employers’ key defense to alleged failure-to-bargain unfair labor practice charges.

Historically, the Board has made it particularly difficult for a unionized employer to adjust or update its operations in a way that affects employees. At default, when a union represents a group of employees, their employer must bargain with that union before taking any action that would change the employees’ working conditions. This duty to bargain potentially can restrict an employer in a broad range of ways, including with respect to decisions that might affect employees’ job duties, shifts, training, standards of conduct, and benefits. The Board has required employers to bargain over changes as minor as the prices of food in vending machines. Continue Reading

The Hangover – vicarious liability for after-party assault (UK)

At some point in the next two months it is statistically inescapable that almost every employer in the UK will receive some worthy but deeply off-putting law firm flier about all the legal risks which can possibly be extracted from the office Christmas party. This is not it.

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World Mental Health Day

Mental Health DayThe news today will be full of stories about mental health, aimed at raising awareness of this critical issue.  Similarly, many companies will be running events to support employees’ mental health, encouraging them to feel comfortable disclosing their any issues and to seek support.  This is all very laudable and forms an important part of the ongoing efforts to end the stigma of mental illness.  However, mental health is not an issue for one day of the year alone.  It is a whole year, whole company issue, which deserves to form a permanent part of the wellbeing agenda and which should not need a ‘business case’ to make.

So, what does that mean?  Well, it starts with engagement.  Not just at employee level, or line manager level, but at the most senior levels of a business.  One good example of this is of António Horta-Osório, Lloyds Banking Group Chief Executive, who has been open about his struggles with his mental health (here is his piece in the Guardian Online from 1 May this year) Continue Reading