The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one of Alloy Bellows’ top competitor, Senior Flexonics. It was undisputed that his position with Senior Flexonics was “virtually identical” to the one he had with Alloy Bellows.
Continue Reading The word “or” might render your non-compete worthless

Describing it as a “rather novel issue,” a federal court recently held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer. [See Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, Doc. 31 (Jan. 22, 2013), Report and Recommendation affirmed and adopted, Doc. 32 (Feb. 12, 2013)] The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, they did not contain any information about the new employer, and they were sent by Twitter instead of as targeted email blasts by the former employee.

Though the court found that the former employee’s social networking activities did not constitute solicitation under his agreement, it did enter a preliminary injunction against the former employee based on his direct solicitation of one of his former co-workers through a private in-person meeting and follow up text messages sent to the co-worker. The court entered the injunction until the issues could be presented to an arbitrator pursuant to the parties’ arbitration agreement.Continue Reading Facebook Posts Not “Solicitation” Under Former Employee’s Restrictive Covenant Agreement

In Nitro-Lift Technologies, L.L.C. v. Howard, the U.S. Supreme Court this week held that if a contract contains an arbitration provision and there is a challenge to the validity of the contract, it is for the arbitrator and not a court to hear that challenge. The case is important for employers because the challenge was to the validity of a non-competition agreement.
Continue Reading United States Supreme Court: A Challenge To The Enforceability Of A Non-Competition Agreement Must Be Presented To The Arbitrator, And Not A Court, If The Contract Contains An Arbitration Provision

This past May, we reported that the Ohio Supreme Court ruled in Acordia of Ohio, L.L.C. v. Fishel that following a merger, the surviving company may not be able to enforce employees’ non-compete agreements, where the agreements failed to contain an assignment clause, and the time period of the employees’ non-competes began to run as of the date of the merger. The Court reconsidered its decision, and issued a new decision today.
Continue Reading Ohio Supreme Court Partially Reverses its Acordia Non-Compete Decision

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity.
Continue Reading State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

In a much anticipated decision, the Ninth Circuit Court of Appeals held in an en banc decision in United States v. Nosal that the Computer Fraud and Abuse Act (“CFAA”) was not intended to cover employee misappropriation of trade secrets, violations of corporate computer use policies or violations of an employee duty of loyalty.
Continue Reading Ninth Circuit En Banc Decision in Nosal Creates Federal Appellate Court Split On Scope of Computer Fraud and Abuse Act’s Reach to Protect Trade Secrets

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my backlog for the month:

According to a Wall Street Journal article, a recent lawsuit seeks a declaration from the New York Department of Labor that putting a GPS tracker on an employee’s family car to uncover time sheet violations was a violation of the state constitution’s guarantee against unreasonable searches and seizures. According to the lawsuit, the monitoring continued during evenings, weekends and a family vacation. This won’t turn out well for the employer.

An Ohio appellate court has upheld a physician’s non-compete agreement that prohibited him from engaging in a hematology or oncology practice in his former employer’s "primary service area." This decision continues the Ohio trend of upholding physician non-competes and Ohio courts have repeatedly rejected the argument that covenants are not enforceable against physicians solely because they impair patients’ choice.Continue Reading Clearing the Backlog – September

The Ohio Supreme Court agreed to hear an appeal that addresses the extent to which a corporate merger may impact the surviving company’s ability to enforce restrictive covenants that its predecessor companies entered into with their employees.
Continue Reading Ohio Supreme Court to Address Assignability of Noncompetes During Mergers and Acquisitions