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DaveSauce posted:What makes a non-compete employment agreement enforceable? It is so fact- and state-specific that there's no meaningful answer you can get from someone who isn't your lawyer reviewing your contract. Something to remember, and a point that many employers rely upon, is that terms don't have to be enforceable to be effective.
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Jul 24, 2019 01:45
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DaveSauce posted:What makes a non-compete employment agreement enforceable? As noted, this is very much jurisdiction* and fact specific, but there are some common threads, which basically boil down to "can we imagine some job in your field you could take while still adhering to this non-compete?" For example, if the company says "don't work for one of our competitors in [Town X]", a court might say "yeah, sure, they could go to work in [Town Y or Z]." If the company says "this lasts for 1 year", or other short-ish (2 years or less) time restriction, that also tends towards enforceability. There are other factual factors like "did you sell your company and agree not to compete with it immediately?" or "did you have all the customer lists at your fingertips?" The other questions, of course, are can you afford to hire a lawyer, will your new employer keep your job open during the court case, etc., etc. *In California, the answer is generally "gently caress no, it's not enforceable." CA BPC Code 16600 posted:Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void. (the exceptions boil down to business owners who sell out or partners/members in businesses who agree how to split things after the fact) *In Louisiana, the answer is "it has to have a list of towns or parishes and not be more than 2 years long," with the same business sell-out exceptions more or less. CA RS 23:921 posted:A.(1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.
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Jul 24, 2019 03:04
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I'm not sure if this even falls under legal protections, but hypothetically, say I worked for a Seattle financial institution. A supervisor (low-level management, we'll call him Chad) in another department hypothetically asked for my help one day, while I was in his department helping another employee. He tried to tell me what the problem was, and eventually by him pantomiming on his computer, I was able to figure out that he was locked out of his account; he was so hosed up that he basically wasn't even verbal. It didn't smell like alcohol, but I suppose it could have been. I've had Chad call in before in a similar state (though not quite as bad) while working remote. Normally, I'd figure "whatever, what he does or doesn't do on the job is between him and his manager," and written it off (Chad has been working for my employer for a very long time, and is someone I think of as "protected" by senior management). Hypothetically, other employees (specifically, the one I was helping to begin with) noticed this, too, though they aren't particularly well-liked employees. Hypothetically, today, I found out the manager of the department sent him home, and let him loving drive. I'm hypothetically loving amazed he didn't loving kill someone. I'm hypothetically strongly inclined to report this to our Risk Management and HR departments; like, it's one thing to gently caress up on your job because you're high or whatever, but I'm hypothetically loving terrified he's going to kill someone driving like that, and I would have done nothing to stop it. That being said, the hypothetical senior management where I work is loving garbage, and all else being equal, I'd bet on them not doing anything about it (like I said, I consider Chad to be protected), and then me having a target painted on my back for having done this. I wouldn't be homeless in a week if I lost this job or anything... but it would hypothetically be rough. I'm guessing there's no whistleblower protection or anything for something like this? If I did end up hypothetically reporting it, would I be doing my hypothetical immediate management a favor by giving them a heads-up before I do it, or would I just be pulling them into it, too, to their detriment? Ham Equity fucked around with this message at 05:36 on Jul 24, 2019 |
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Jul 24, 2019 05:32
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Just call the cops. It's not on the company to stop him from driving he can get an uber drunk.
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Jul 24, 2019 06:28
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BonerGhost posted:Something to remember, and a point that many employers rely upon, is that terms don't have to be enforceable to be effective. Yup, this is my main working knowledge of seeing people hit by them. They might be able to fight and win, but it's going to be so expensive that it's not worth the time and effort, so I've never actually seen someone fight this. ulmont posted:As noted, this is very much jurisdiction* and fact specific, but there are some common threads, which basically boil down to "can we imagine some job in your field you could take while still adhering to this non-compete?" OK I didn't realize it was THAT highly dependent on location. I figured there was some fairly common practice, but I guess employment law in general is highly variable state-to-state so I suppose this would be similar. And my situation in particular is that I'm an engineer. I don't generally have access to customer lists, and I'm not a business owner/other stakeholder, but there's a lot of technical knowledge I have, which is what they are trying to protect with a non-compete. My industry is also small enough where competitors could encompass much more than the immediate vicinity. There is SOME regional aspect to it, but by and large the companies in my industry are always doing business across state lines, and often working internationally.
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Jul 24, 2019 13:05
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Everything regarding law is jurisdiction specific.
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Jul 24, 2019 14:02
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Man, I can't wait for Space Law. "Sorry, Moon Rules only. Go pound sand Earther."
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Jul 24, 2019 14:09
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Thanatosian posted:I'm not sure if this even falls under legal protections, but hypothetically, say I worked for a Seattle financial institution. A supervisor (low-level management, we'll call him Chad) in another department hypothetically asked for my help one day, while I was in his department helping another employee. He tried to tell me what the problem was, and eventually by him pantomiming on his computer, I was able to figure out that he was locked out of his account; he was so hosed up that he basically wasn't even verbal. It didn't smell like alcohol, but I suppose it could have been. I've had Chad call in before in a similar state (though not quite as bad) while working remote. Normally, I'd figure "whatever, what he does or doesn't do on the job is between him and his manager," and written it off (Chad has been working for my employer for a very long time, and is someone I think of as "protected" by senior management). Hypothetically, other employees (specifically, the one I was helping to begin with) noticed this, too, though they aren't particularly well-liked employees. Hypothetically, today, I found out the manager of the department sent him home, and let him loving drive. I'm hypothetically loving amazed he didn't loving kill someone. The company isn't law enforcement, the company doesn't really have a special relationship with him in this case (though it should be noted that an employer/employee can have a special relationship for other purposes), therefore the company really doesn't have a duty to warn, it's not the company's responsibility to babysit him and prevent him from doing dumb poo poo like driving drunk. There wouldn't be whistleblower protection because you're not reporting a relevant illegal act to a qualifying agency. But, as someone else said, you can always call the police if you think you witness a DUI in your capacity as a citizen... Beyond that, it's not really a legal question, it's a moral question, and you should do what you think is best. I personally don't see it as their problem, it's a problem in their employee's personal life that clearly hasn't risen to the point of bothering management enough to do something about. If you ARE going to say something though, it's always better to start with the employee themselves, and if you don't want to do that, your direct management. People hate being out of the loop on stuff like this and going around and above them isn't going to do you any favors. toplitzin posted:Man, I can't wait for Space Law. I unironically took space law from the guy that wrote the book on it some years ago, it's identical to maritime law in almost every respect, except no nukes. 
Kimsemus fucked around with this message at 15:12 on Jul 24, 2019 |
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Jul 24, 2019 15:10
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Non-Competes: Yes, each state is different. The difference generally equates to how much Courts have favored employers vs. employees over the years. Texas is very Employee friendly in that regard. What will happen is the Court will review the non-compete and because Texas "strongly disfavors restraint on trade and the right to work" they will narrowly construe the Non-compete (Covenant Not to Compete, or "CNC") to ensure that: a) Geographic Restriction is limited to the areas necessary to enforce the purpose of the CNC. The Question is, "Where specifically could the employee do harm to the former employer by working? Within 5 miles? Within a tri-county area?" etc. This typically means the areas in which the employee conducted actual activity for the employer, but can sometimes include other areas. b) Time Period is limited to balance both the purpose of the CNC, and the right of the employee to work. This typically means 6 months to 3 years in Texas, but the purported question is, "What is a reasonable length of time to protect the employer before the world moves on and this protection doesn't matter enough to justify the Employee being unable to work anymore?" Courts finding that anything longer than 3 years was reasonable is INCREDIBLY rare. 2 years is the most common answer. c) The Activity prohibited is specifically what the employee was doing for the original company. If you were selling widgets, you're only prohibited from selling widgets. You're not prohibited from selling goobers, even if its to the same people you were selling widgets to, UNLESS the employer can show that selling goobers would negatively affect the number of widgets those customers would then buy from the former employer. If a Texas Court determines that the CNC in question is too broad, it will literally trim the restrictions in parts a), b), and c) down to what it determines to be reasonable, and then enforce the newly crafted CNC. Before Texas Courts will do this three part analysis of the CNC, however, there are two gateway questions that the former employer must get a "Yes" to before the CNC is even brought before the Court to review. 1) Is the CNC necessary to protect the Employer? A CNC prohibiting a line cook from working at Wendys after he worked at McDonalds is bullshit, and does nothing for McDonalds. There are hundreds of thousands of competent line cooks, and one leaving to work at Wendys doesn't affect your bottom line. Likewise, if you have a Jetpack Engineer (actual Texas case) leaves for the only other Jetpack company in the southwest, now you have an issue. 2) Did the Employee receive anything of value (other than their salary and continued employment) in exchange for the CNC? This could be specialized training, access to proprietary customer lists, intellectual property, or special formulas, or it could be straight cash bonus. There are special circumstances where the CNC has sufficient consideration because it is part of a term employment contract, but, in general, the Employer must show that the Employee got something - because they Employee gave something up (the right to work for a period of time). "Are the enforceable?" Sure, some of them, some of the time. Do they ever actually get enforced? Depends. I've had plenty of cases where the employer doesn't care, cases where its a huge fuckin deal, cases where it could kill the business, cases where it wouldn't really matter but its the principal of the thing, and so on and so forth. Its also very rare that a CNC is the sole issue in a case. You almost always need a CNC because a company has certain trade secrets and customer lists it needs to protect. And often the primary reason for an employee trying to go compete is because they think they can make more money elsewhere using those trade secrets and customer lists, which means fighting over what constitutes a trade secret and whether there is a cause of action for trade secret misappropriation, and whether the new employer is complicit in the diaspora, etc. etc. This almost always ties into business disparagement issues, like the employee bad-mouthing the former employer to customers, and claims for tortious interference with contracts. They are very very complex issues. There is no one-liner about their enforceability that fully encapsulates all the possible realities of a CNC case.
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Jul 24, 2019 15:16
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It sounds like you're conflating dram shop liability with imputed degrees of common sense human responsibility; the former of which is law, and the latter is not.
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Jul 24, 2019 15:21
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Liability or not you're a lovely employer if you let a potentially intoxicated person drive home
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Jul 24, 2019 16:47
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Nevvy Z posted:Just call the cops. It's not on the company to stop him from driving he can get an uber drunk. Kimsemus posted:The company isn't law enforcement, the company doesn't really have a special relationship with him in this case (though it should be noted that an employer/employee can have a special relationship for other purposes), therefore the company really doesn't have a duty to warn, it's not the company's responsibility to babysit him and prevent him from doing dumb poo poo like driving drunk. There wouldn't be whistleblower protection because you're not reporting a relevant illegal act to a qualifying agency. But, as someone else said, you can always call the police if you think you witness a DUI in your capacity as a citizen... Thanks all for your moral vs. legal advice, here. It was about what I figured (nothing illegal about it on the company's side, just a really lovely thing to do). I decided I couldn't live with myself if I just let it pass, but I didn't want to do it in a stupid way, so I approached one of our internal auditors who I'm friendly with, who is savvy about the internal politics of this place, who I trust to keep my confidence, and is more knowledgeable than me about relevant regulations/best practices (we're under more regulatory scrutiny than most offices because we're a financial institution). Edit: Hypothetically.
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Jul 24, 2019 20:14
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I have medical debt from a procedure I had done in a hospital. Usually they send the bill to my insurance company then I get an invoice for the balance which I then pay. However, this time they took the balance and opened a line of credit with some bank then sent me the credit bill. I wouldn't normally care but, the bank now adds a bunch of processing and payment fees on top of my normal bill. This is in the USA, is this legal? How are they allowed to open a line of credit in my name without my permission? E: I didn't have a balance with the hospital before this and I haven't had anything medical in collections, ever.
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Jul 25, 2019 02:08
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Not a lawyer but to prevent future abuse, freeze your credit with the major bureas, it's free now
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Jul 25, 2019 02:27
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Azuth0667 posted:I have medical debt from a procedure I had done in a hospital. Usually they send the bill to my insurance company then I get an invoice for the balance which I then pay. However, this time they took the balance and opened a line of credit with some bank then sent me the credit bill. I wouldn't normally care but, the bank now adds a bunch of processing and payment fees on top of my normal bill. I would check to see what paperwork you signed, but an entity can't just open a line of credit without your authorization then turn around and charge you for it. I would dispute the entire thing up and down as fraudulent, starting with the bank/entity they opened the line of credit with. I've never heard of this happening though, without someone signing a consent form somewhere, so you need to check. But go to the issuing bank, and call the hospital as well. Start shaking trees and figure out what they authorized and why and report it as fraud to the issuing bank ASAP.
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Jul 25, 2019 02:36
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I have a consent to treat form which has nothing about payment on it. The consent to bill my insurance company form, EoB I think its called, has nothing about lines of credit on it. I'm angry about this now and not going to be able to sleep because of it. I'm going to start shaking trees where should I go after the bank and hospital?
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Jul 25, 2019 03:25
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Azuth0667 posted:I have a consent to treat form which has nothing about payment on it. The consent to bill my insurance company form, EoB I think its called, has nothing about lines of credit on it. I mean those are going to be your main points of contact, and where I would start. That will also help you get some answers on what happened and why. If the result isn't satisfactory, you can report it to the FDIC, or even file a police report. I'm not saying either would do anything in reality, but you want to posture yourself to recover any moneys you might be owed. Filing a fraud alert with a credit bureau is going to be a worthless pain in the rear end, since the party who committed the "fraud" is a known entity and you're not a victim of identity theft or anything like that; you're just going to be adding needless complication to your other accounts and cards. As far as credit fraud stuff goes, this would be one of the weirder ones I've heard of, I'm gonna be honest. Ultimately, depending on the amount, your financial situation, and level of interest, contacting a local attorney in your jurisdiction is always a viable option if you're not getting anywhere on this. That's really the most concrete advice I can give you. Try not to lose sleep over it -- its not going anywhere, and you will be able to get more info and make an informed decision as to how you want to proceed soon.
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Jul 25, 2019 03:36
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Azuth0667 posted:I have a consent to treat form which has nothing about payment on it. The consent to bill my insurance company form, EoB I think its called, has nothing about lines of credit on it. Hospitals absolutely hate to be reported to the Joint Commission.
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Jul 25, 2019 05:33
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Treat it like any other fraudulent charge. Send a certified, return receipt letter to the creditor asking for copies of the paperwork you signed authorizing this line of credit. And that you will be filing suit if it is not closed and removed from your credit report. There's a whole thread about what steps to take around here somewhere.
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Jul 25, 2019 13:45
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Ghostnuke posted:Treat it like any other fraudulent charge. Send a certified, return receipt letter to the creditor asking for copies of the paperwork you signed authorizing this line of credit. And that you will be filing suit if it is not closed and removed from your credit report. Yeah, I mean the post above by Kimsemus is wrong -- it absolutely is identity theft. Knowing who committed the theft makes it easier to prosecute/resolve, it doesn't make it less of a crime. re: non-competes; it's hugely dependent on location. I remember talking to a lawyer about a DC non-compete who essentially said the case law here wasn't mature enough to tell whether the non-compete was enforceable. My understanding is that generally as long as the scope is narrow and the time isn't too long, it's probably enforceable, but particularly if they provide an incentive (e.g. I was at a company when it got acquired and as part of the deal a few folks signed new non-competes and got laid off that paid them 1-2 years comp in exchange for not competing for that time) The bigger issue though is the threat -- even if it isn't enforceable, they can drag you to court to try to prove it isn't enforceable.
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Jul 25, 2019 14:59
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Yes usually consideration is needed for an enforceable contract.
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Jul 25, 2019 15:02
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Zauper posted:Yeah, I mean the post above by Kimsemus is wrong -- it absolutely is identity theft. Knowing who committed the theft makes it easier to prosecute/resolve, it doesn't make it less of a crime. I never said it wasn't identity theft, I simply said doing a credit freeze/fraud alert with the credit bureaus would be of extremely limited value in this case based on what has transpired. All the other steps are still valid. Since it's a known corporate entity and based on the specific facts it's unlikely to repeat, and because of the nature of the circumstances doing a freeze wouldn't accomplish much, but it would cause a lot of headaches. He can and should still pursue it as fraud as I stated above, it's just that that step probably isn't necessarily and will do more harm than good.
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Jul 25, 2019 15:18
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euphronius posted:Yes usually consideration is needed for an enforceable contract. I wonder if courts usually look at it holistically or from a contract-specific viewpoint. Most non-competes I've seen are usually separate documents with no consideration included, but are usually signed in the context of a severance package.
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Jul 25, 2019 15:23
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Ur Getting Fatter posted:I wonder if courts usually look at it holistically or from a contract-specific viewpoint. With regards to non-competes, it is 100% jurisdiction specific. However, there were a few recent cases that have applied a roughly equivalent version of this three prong test (at the district court level is where I've found all of the language, hence the jurisdictional issues): quote:To determine whether a non-competition covenant is valid and enforceable, the Court conducts a three-part analysis. CiCi Enters., L.P. v. Four Word Motion, LLC, No. 6:16-cv-1679-Orl-41KRS, 2016 U.S. Dist. LEXIS 188678, at *23-24 (M.D. Fla. Oct. 17, 2016) So the answer is still "it depends," but if this is the commonly held test that courts are adopting now, it generally means the non-compete has to stand alongside a valid employment contract (IE backed by consideration as you and others have said), and that the non-compete is reasonable and enforceable. I've also seen some scoping language that talk about a non-compete being "reasonably tailored" and not overly-broad in achieving the aim of protecting the franchisor's interests while not being unduly burdensome on the rights of the franchisee.
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Jul 25, 2019 15:34
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That severance package is going to mention the non compete
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Jul 25, 2019 15:34
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I have a question about section 158 of the Highway Traffic Act in Ontario, Canada. https://www.ontario.ca/laws/statute/90h08#BK254 posted:158 (1) The driver of a motor vehicle or street car shall not follow another vehicle or street car more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway. R.S.O. 1990, c. H.8, s. 158 (1). Let's say I hypothetically own an arduino, gps, usim, camera, and lidar module. It is technically possible to pull my own vehicles speed from the gps, and the distance to an other vehicle from the lidar module.* If the lidar module were mounted on my back bumper along with a camera, I should be able to create an image of a following vehicle's license plate along with a watermark about their distance and our mutual speed - which could be texted to the local police. Questions: Is there a formalized table of speed vs distance that specifies the cutoff between tailgating and not tailgating? Am I overlooking anything that would prevent this from working from a legal standpoint? I know there were a few years in Ontario where we didn't have photoradar.
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Jul 25, 2019 16:11
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Seek therapy. This is my legal advice.
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Jul 25, 2019 16:47
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DreadLlama posted:I have a question about section 158 of the Highway Traffic Act in Ontario, Canada. There probably isn't. But, dude, find a better hobby.
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Jul 25, 2019 16:49
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Breaking distances are not standardized so you'll need to calculate that plus estimated break wear based on both model year and how clean the car is.
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Jul 25, 2019 17:04
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DreadLlama posted:I have a question about section 158 of the Highway Traffic Act in Ontario, Canada. IANAL and your idea is truly poo poo and you are a snitch rear end motherfucker. That said, I'm an engineer and generally yes those components could possibly add up to something that would do the function you think it would. Yes, you are overlooking multiple legal issues (in the USA) that would prevent the police and courts for doing anything with the data you gathered. Some of those that'd be argued or are facially obvious: You're using a bunch of uncalibrated devices, with unchecked, untested source code, with undocumented and uncorrected noise, from a source (you) that almost certainly doesn't meet whatever chain of custody requirements that area has. I'm sure the real life lawyers can come up with much better and less made up legal reasons as well. Submarine Sandpaper posted:Breaking distances are not standardized so you'll need to calculate that plus estimated break wear based on both model year and how clean the car is. Why would you need to do any of those things? Also they're brakes not breaks
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Jul 25, 2019 17:12
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If people are tailgating you, get out of the passing lane.
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Jul 25, 2019 17:20
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CarForumPoster posted:IANAL and your idea is truly poo poo and you are a snitch rear end motherfucker. His idea is dumb and legally unworkable but lol at bristling at someone "snitching" on tailgaters
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Jul 25, 2019 17:26
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Tailgaters are the loving worst and you all are showing your rear end.
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Jul 25, 2019 17:56
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Your question is actually about the mechanics of filing and prosecuting charges. In the US, the police will file charges against someone with the DA, and the DA will determine whether to seek a conviction. In traffic cases, 9,999 out of 10,000 the "witness" is the police officer who observed the violation. The officer does a report, and swears to it. This is the "witness statement" and that cop will later go to trial to testify as to what is present in that statement. The cops testimony, plus dash cam and body cam and car gps will be the rest of the evidence in that case. The other times, it is cops doing an accident report where the witness who got rear-ended or t-boned is the one who witnessed the violation. In theory, a witness could report the traffic violation and present the evidence of the crime to the police and they could take a witness statement and the witnesses' evidence and submit it to the DA as the filing in support of the charges. This is what happens for non-traffic crimes, and there is no legal prohibition against it working this way. Its just that, as a practical matter, its way too much hassle, there isn't a pipeline set up for this sort of reporting, both cops and the DA would be incredibly dubious about the witness ever actually showing up to the trial to testify bc what kind of loving weirdo would do that (probably the kind of weirdo who sets up a loving laser on their car to citizen-police tailgaters, but whatevs) and honestly they have plenty of tickets and court cases to deal with already, so they wouldn't likely bother with the extra work involved in prosecuting citizen-reported and witnessed traffic violations.
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Jul 25, 2019 18:04
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blarzgh posted:Tailgaters are the loving worst and you all are showing your rear end. Drive faster, nerd
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Jul 25, 2019 18:05
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Pibur posted:Drive faster, nerd If you get around me, you're just going to have to tailgate the car in front of me who's doing the same speed, you psychopath.
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Jul 25, 2019 18:07
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blarzgh posted:If you get around me, you're just going to have to tailgate the car in front of me who's doing the same speed, you psychopath. I'll just do a burnout. It'll be sick.
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Jul 25, 2019 18:08
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Seriously; we're in bumper-to-bumper traffic and there is a semi-truck ON FIRE on the other side of the highway how the gently caress do you think weaving your car at 2mph, 6 inches from my bumper, and loving HONKING YOUR HORN AT THE 1000 CARS IN FRONT OF US is going to accomplish anything?
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Jul 25, 2019 18:10
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Pibur posted:I'll just do a burnout. It'll be sick. Ugh, you're going to wear 100 miles of tread off your tires doing that, so irresponsible!
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Jul 25, 2019 18:11
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And you're RUINING your average MPG!!
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Jul 25, 2019 18:12
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