NEW LAW – Employee Nonsolicitation Agreements

April 25th, 2018 | Posted by Christopher Sitzmann in Business Law | Employment Law | Law Blog - (Comments Off on NEW LAW – Employee Nonsolicitation Agreements)

Attention Employers!

Do you have Agreements with your Employees that prohibit them from soliciting other Employees from your business after they leave?  Oftentimes this Agreement is part of a Non-Compete Agreement.

A 2018 Wisconsin Supreme Court Decision makes it more difficult for Employers to enforce these Nonsolicitation Agreements.  The provisions in the Agreements should be specifically drafted for each Employee depending on their position, level of influence over other Employees, and the competitive threat the Employee poses to the Company.

In this case, John Lanning, a 25-year employee, resigned from his job and went to work for a competing business.  He ended up soliciting 9 other employees to follow him to the competitor.  Because the Nonsolicitation clause in his employment agreement was too broad, he was allowed to do this and his former employer had no recourse.

A Nonsolicitation Agreement must serve a legitimate and competitive interest.  Prohibitions on solicitation of ALL Employees are likely unenforceable and will cause the entire Agreement to be unenforceable.

All Employment Agreements that contain nonsolicitation Clauses should be reviewed and revised.

 

I am very excited to present the Sitzmann Law Firm Ltd. Blog!  This is a place where Attorneys from our firm will be giving our readers updates about areas of law in which we practice and other information we believe might be valuable to our readers.

Please feel free to email me at sara@sitzmannlaw.com for suggestions on things YOU want to read about!

The first topic I’d like to write about is Worker’s Compensation.  Why should you be interested in this topic?  Well, what happened to the business in this article, could happen to your business.

** DISCLAIMER** I feel it necessary to tell you, reader, that I am optimistic.  My work in the law has shown me that many business owner’s are also Optimists.  I love that.  However, my work has also revealed the hard truth: bad things do happen.  It is possible that bad things will happen to your business.  The best way to protect yourself:  1- Be Informed.  2- Be Prepared.  Know what YOU need to do by having good advisers to ask the questions you have about your business.

Ok, enough disclaiming.  Back to the article.  This article, written by Joe Forward, a Legal Writer for the State Bar of Wisconsin, discusses a Wisconsin Appeals Court case involving Pick’n Save (a local grocery store) and one of their bakery employees, Jill Lucchesi.  Jill developed carpel tunnel syndrome from constantly frosting the cakes in the bakery.   She got a doctor’s note restricting her from frosting.  About 5 years later, her bosses asked her to frost again because another employee was going to be out.  She did, because without the extra hours, she would have lost fringe benefits.  Guess what…she was re-injured.

Jill filed for worker’s compensation.  Pick’n Save argued that they should not have to pay because her injury was self inflicted.   She decided to take on frosting, right??  Wrong.  The LRIC (the body that hears worker’s compensation cases) awarded Jill $15,553 in compensation, which was affirmed by the Wisconsin Appeals Court.  Pick’n Save asked her to frost, regarding of their knowledge of the restriction.  Her decision to frost was not relevant because of employer knew about her restriction and had her frost anyway.

In summary…Employers beware, if you know your employees can’t frost, don’t let them!!

Signing off,

Sara

Sara@sitzmannlaw.com