October  23, 2012

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

My next engagement is entitled "Leadership in Organizations Today" It will be held on Friday, November 2 and is sponsored by the Financial Service Resource Group and will be held in Ontario, CA. For more information please go to my website.

 

Labor Law Update 2013: If you are interested in having me give a “Labor Law Update for 2013” presentation to your organization early next year, please contact me so we can schedule the event.

 

HR4U 101 for 2013 Workshop

My next full day workshop will be held on January 9, 2013. This is a practical workshop that focuses on all the things you need to know to comply with California employment law and some guidance on best practices for all your employee related efforts. Download the flyer for all the workshop details.

 

Attention: Have you taken the HR4U mini-Human Resources audit, yet?

 

Court Shows Way to Obtain Non-Solicitation Injunction in California

Companies seeking to prohibit unlawful solicitation of customers should be encouraged by a recent federal court decision.  A Magistrate Judge issued an injunction that prohibited the defendant from directly or indirectly initiating any contact with any current Northern California or Hawaii customer of the plaintiff with whom he had contact or for whose accounts he had responsibility while employed by the plaintiff, for the purpose of encouraging, inviting, suggesting or requesting transfer of their business from plaintiff. The court distinguished its case from the decision in Galante (2009) finding that California Business and Professions Code section 16600 does not constrain a court from fashioning an appropriate remedy for conduct in violation of the California Uniform Trade Secret Act. The case provides a clear rebuke to the now common argument that Galante prohibits non-solicitation restraints.

 

The defendant in Pyro Spectaculars North, Inc. downloaded and retained detailed information on the plaintiff's customers. The court found that the information downloaded provided "a virtual encyclopedia of specific customer, operator and vendor information at a competitor’s fingertips, allowing the competitor to solicit both more selectively and more effectively without having to expend effort to compile the data." The evidence also showed that the defendant solicited numerous customers of the plaintiff using the stolen information. The court also found that the conduct explicitly targeted the plaintiff’s customer goodwill and therefore supported the existence of irreparable harm for preliminary injunction.

 

The court noted that the paramount issue is how a court might fashion an appropriate relief via injunction. While a court should be cognizant of the policies embodied in section 16600, that section does not constrain a court from fashioning an appropriate remedy to prevent the misappropriation of trade secrets. The court concluded "that a narrow, time-limited non-solicitation restriction is necessary to prevent defendant's misuse of trade secret information in competing with the former employer.

 

For those practitioners attempting to prevent someone who stole trade secrets from soliciting customers, this case provides clear guidance of the evidence needed to support a non-solicitation injunction and how to fashion such an injunction. The case provides a much needed counterpoint and balanced view as to the scope of remedies available to a court to prevent the misappropriation of trade secrets.

 

Female Miami Beach Firefighter Awarded $700,000 in Sexual Harassment Case

A Miami Beach firefighter said her bosses and co-workers sexually harassed her for years and systematically made her the target of personal attacks and even death threats. A federal jury agreed. She won a $700,000 jury verdict last month after jurors said city officials and firefighters “subjected her to a sexually hostile work environment,” and caused her “emotional pain and mental anguish.”

 

According to court filings, she said harassment began immediately when she was hired in January 2005 as a firefighter and paramedic. She said she was introduced on her first day of training as “the chick who is doing this as a hobby and doesn’t need to work due to her husband’s financial situation.” She said other firefighters told her “women belong in the kitchen.”

 

She also said colleagues accused her of having affairs with other firefighters and refused to work with her because she was a woman. She said a male co-worker walked in on her in the shower in 2007, and when she requested a lock on the bathroom door her supervisor gave her a broom handle with “Smart Wedge” written on it. She also said she once found a missing bathing suit stained with semen and stashed in a locker.

 

In 2008, she said someone took a picture of her and other firefighters and wrote “Next Fire Last Fire Liar,” and placed an X over her face, which she took as a death threat. She turned the photo over to police. Later, she filed a police report alleging that she received threatening phone calls and that a department firefighter who had been harassing her was also driving by her house repeatedly. She said the stress from work caused her to have chest pains and throw up blood, leading to hospitalization.

 

She filed a complaint with the EEOC in 2008, and filed a federal lawsuit in 2010, alleging she’d been sexually harassed and discriminated against because she was a woman.

 

Factoids

• 81% of managers will take vacation this year while only 65% of all employees will do so.

Settlement Data (7/12-9/12)

• Sexual Harassment: employee wins 68%, average settlement $350,000
• Pay & Overtime: Employee wins 33%, average settlement $550,000
• All employment related claims: employee wins 43%, average settlement $203,250

Quote

“If you need a machine and don’t buy it, you will ultimately find that you have paid for it and don’t have it.”

Henry Ford