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Restrictive covenants in employment contracts are becoming more and more common. “Restrictive covenants” typically limit an employee’s ability to benefit from an employer’s confidential information or business following the conclusion of the employment relationship. Common restrictive covenants include restrictions on the use of confidential information, anti-solicitation provisions, and non-competition provisions.

Non-solicitation and non-competition provisions may look very similar to one another. The main difference is that non-solicitation provisions restrict a former employee’s ability to interact with customers or clients of the employer. As an example, a non-solicit provision may restrict a former employee from contacting any of her former employer’s customers for a period of two years after the end of the employment relationship.

Non-competition provisions typically restrict a former employee’s ability to work for a competitor of an employer, or even in the same industry. They are usually limited in time and scope. As an example, a non-competition provision may restrict a former employee from working for any competitor of the employer within a geographic radius of ten miles for a period of two years after the end of the employment relationship. Non-competition provisions can be much more onerous and problematic, because they greatly restrict an employee’s ability to earn a living.

 

Photo Credit: Marcus Quigmire via Flickr Creative Commons

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When starting a new job, it is easy to overlook clauses in an employment agreement or contract. For a lot of people, the key is “how much am I getting paid?” However, most executives don’t stay with the same company forever. The other clauses in the contract become very important when an employee – especially an executive – leaves a company. By overlooking the non-compete language in the initial agreement, executives are putting themselves in a very costly predicament that could also negatively impact their ability to start a new job.

 

Non-compete and non-solicitation agreements can be drafted very broadly to prevent an executive from working within a certain amount of miles from the initial employer, or even within the same industry for a period of time, sometimes more than two years. Fighting a non-compete in court can be very expensive. These clauses can also include language requiring the executive to pay for the company’s attorneys’ fees or the company’s lawsuit related expenses.

 

There are several aspects of non-compete clauses that are important to understand. First, there is a recent case in Illinois that indicates a non-compete will be invalid if an employee works for an employer for less than two years. See Fifield v. Premier Dealer Servs. Inc., 2013 IL App (1st) 120327. An employer might attempt to circumvent this ruling by providing additional money or benefits to an executive for signing the non-compete, or potentially by applying a different state’s law.

 

Second, if a non-compete is too unreasonable, courts will either modify the language or find the clauses invalid. However, going through the legal process is still very expensive. Thus, it is much more cost effective for both the executive and the employer to negotiate the issues at the forefront. These negotiations can help draft a fair and reasonable non-compete clause that will not lead to a lawsuit later.

 

Finally, be careful about language giving the company its attorneys’ fees. Sometimes the language used is very broad, and can put the executive in a difficult – and costly – position.

 

Ultimately, hiring an attorney that will adequately review the non-compete clause and negotiate the key issues is a very valuable investment. It will prevent spending a substantial amount of money later in a lawsuit.

 

Photo Credit: Dan Moyle via Flickr Creative Commons

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Managing partner, Kristen Prinz, appeared on First Business with Bill Moller to discuss the confusion over freelance workers in the labor market.

The 9th Circuit recently ruled that FedEx was misclassifying its workers as independent contractors.  There is a lot of confusion regarding misclassification of employees as independent contractors.  As Ms. Prinz explained, “what it really comes down to is do you [the employer] exercise discretion and control over these employees and there is a lot of grey area in that.”

Companies often think they can save money by classifying their workers as independent contracts because it allows them to avoid paying overtime, employment taxes, and benefits.  However, misclassifying employees as independent contractors can be very costly because there are substantial penalties and fees at risk. Careful consideration should be made when deciding whether a worker is an employee or contractor.

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By: Christina Hynes Mesco

Leaving a job, especially one that compensates well, is a very difficult decision for any executive. After investing what seems like endless time and energy into an organization’s success, it can be difficult to let go and pursue new opportunities. Sometimes there may not even be an obvious reason driving your departure, but you sense that it is time to part ways with your employer nonetheless. Below are a few indications that a change is in order.

 

Professional growth has become stagnant.

It may be time to seek new employment when your professional opportunities are severely limited or stall, despite your best efforts to ensure that you possess the requisite skills, experience, education, and characteristics for the next step in your career. Passed over for the promotion for a third time? Not reaching that elusive VP status? Receiving no feedback regarding your employment performance? Before concluding your employer is to blame, request candid advice from a person in the organization whom you trust (preferably senior to you) to determine whether you are objectively qualified and ready for the next step in your career and whether any impediments to further growth with your current employer are surmountable.

 

Boredom or resentment is creeping in from lack of new challenges.

Feeling bored at work? You are not alone. A 2005 Washington Post article posited that 55% of all U.S. employees are not engaged at work. And the amount of “work” you are actually performing has little to do with whether you feel bored or unchallenged. If your boredom expands beyond the natural cycles of activity within your business or industry, your current employment is probably not engaging your skill set. Feeling that your talents are underutilized is not healthy and can leave an employee feeling disconnected from the organization or even resentful of co-workers and management. If you have exhausted the search for ways to keep yourself occupied or challenged in your current employment (volunteering for new projects or seeking additional job-related training, for example), consider that you may not be feeling run-of-the-mill boredom, but that a career change is necessary. Is there a time that you can remember being happiest and feeling professionally fulfilled in your company or in any employment setting? Seek out that type of work and find your true calling, because it may not be where you are.

 

The company seems to be failing.

Sales have plummeted. Management is scrambling to evaluate personnel and productivity. Colleagues are departing around you. You are asked to shoulder more responsibilities without more pay, or even worse, you have been asked to take a pay cut. If you sense that the company is heading in the wrong direction, it may be time to jump ship. Transitioning from one job to another without a break in employment is always easier than rebuilding after the company has failed or you have been laid off. Most times, it is best to seek new opportunities ahead of a corporate catastrophe to maintain your own personal income stream and minimize any perception of your culpability in the company’s failing. Consider your exit strategy, however: even if you do not have a pre-negotiated employment agreement that might provide severance upon your departure in certain scenarios, you may be able to leverage a severance package if the company is in the midst of layoffs.

 

Your health is suffering from stress or unhappiness.

If your body or mind is beginning to pay the price for what you do in your working hours, a job change is imperative. If you have tried to address the factors contributing to your stress and unhappiness in the workplace to no avail (yoga at lunchtime…or just stopping to take a lunch break at all), it may be time to leave. According to a recent Forbes article, 42% of employees have changed jobs due to stress. And it is easy to understand why: workplace stress or unhappiness does not stay at work. It almost always affects your personal relationships, sometimes with disastrous results. No matter how well you are compensated or how much power and prestige your position wields, you cannot enjoy it if you are not healthy.

 

You dread getting up and going to work.

Perhaps none of these categories applies to you, yet you still dread getting out of bed in the morning to get to your job. If you have ruled out personal factors (such as depression), it may be time to consider moving on. Talk with a trusted friend or advisor to understand what factors are leading to these feelings. Do you like the work you perform? Is the environment the right fit for you? Are you being bullied or harassed by a colleague or a manager? Taking careful inventory of the source of those negative feelings can help you design a solution – and may lead you to the career you have always wanted.

 

Photo Credit: Simon Shek via Flickr Creative Commons

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By: Jessica Fayerman

Great leadership is more than simply delegating assignments and reviewing work. True motivation requires you to be attuned to not only the needs of your colleagues and workplace, but to your own behavior as well. Are you unknowingly projecting an image that you do not want your co-workers to imitate? This post will highlight three ways in which you may not be effectively modeling leadership in the office and how you may go about changing those behaviors.

  • Mistake # 1: Refusing to delegate important projects. When you only delegate “unimportant” projects, not only does it cause you to burn out because you are reserving all the critical projects for yourself, but it conveys a sense that you do not trust your team. When you take risks by allowing your team members to participate in crucial assignments, you are taking a big step in helping to develop the careers of your team and improving morale.

 

  • Mistake # 2: Not modeling exemplary workplace behavior. When you take excess time off, make personal calls in the office, and communicate unprofessionally, your team members may start to think that such behavior is the norm in your workplace. Many executives are unaware of the degree to which their team members imitate them and pick up their own work habits. Model workplace behavior begins with you.

 

  • Mistake # 3: Not making time for your team. It can be easy to think that your most important function at your office is to immerse yourself in your own work. However, this may convey the image that you are inaccessible for the guidance that your team needs to grow. Block out specific times on your calendar in which you guarantee that you will be available to your team to answer questions and provide feedback.

Photo credit: geralt via Pixabay

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By: Poonam Lakhani

Bad first impressions are hard to shake, so it’s critical that you ensure you make the right impression on your first day at a new job.  Here are eight tips for making your first day at a new job a success:

  1.  Don’t be late.  Nothing is worse than being late on your first day.  Make sure you practice your route to work before your first day.  On the day of, be sure to leave yourself some extra time to get to work as well, so that you can avoid being late due to unforeseen circumstances, like bad weather or an accident.
  1. Know your boss.   You don’t have to stalk your to-be- boss (in fact, it will probably work against you if you memorize her favorite colors and know where she was last weekend) but  perusing her Linked-in profile is a good idea to get a better understanding of your boss find some common connections.
  1. Connect with your co-workers.  The same applies to your co-workers.  Check-out their Linked-in profiles as well.  At a minimum, try to know everyone’s name.  If anyone helps you out during the day, send them a thank you email.  Generally, you first week may be slow, so try to schedule some one-on-one lunches with your co-workers to get to know them better.
  1. Take notes.  Your first day will likely comprise of a million meetings, introductions, and instructions, and at the end of the day you will remember nothing.  Bring a notepad and pen with you for your first day and take notes so that you can retain at least some of what’s thrown at you.
  1. It’s better to be overdressed than underdressed.  Some offices are more casual, while others more formal.  On your first day, you may be unsure of what is considered acceptable.  It’s best to err on the side of formality and be over-dress than under-dressed in order to make a good first impression.
  1. Do your homework on the company.  Be sure to thoroughly review the company website so that you understand all aspects of the company.  It doesn’t hurt to do some Google searches or check the news as well.
  1. Don’t be afraid to ask questions.  No one expects you to know everything on your first day, so it is the ideal time to ask questions.
  1. Be confident.  Although there may be a lot of unknowns on your first day, remember, you were chosen for a reason, so be confident!

Have other tips for a successful first day? Share them in the comments!

Photo credit: Nguyen Hung Vu via Flickr Creative Commons

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By Poonam Lakhani

Many people have images of lazing on the sofa in their pajamas while watching daytime talk shows with laptop in hand when they hear “working from home.” In reality, this picture is neither sustainable nor productive.  Working from home can have many benefits; you can avoid wasting time commuting, which in-turn can provide you with more time with your family.  However, these benefits are diminished if you end up not actually getting work done.  Here are some simple steps you can take to ensure that you can enjoy the benefits of working from home without sacrificing productivity.

1.  Create a distraction-free work zone. 

When working from home, it’s very easy to get distracted.  Your child may interrupt you, that pile of laundry keeps asking to be folded, or sometimes you may think, a little TV break won’t hurt.   Interruptions and distractions will hurt your ability to efficiently get work done.  Create a space, which can be as simple as a desk and a chair in the corner of the room (not the sofa), that you will use for work purposes.  Make sure that others in your household understand that when you are in that space, you are at work, and interruptions are not ok.

2.  Treat working from home the same as working in the office.

With the right mindset, you can be equally as productive as when in the office, if not more.  This requires you to think of working from home as the same as working in the office.  The only difference is where you are physically sitting.  Start working at your typical start time, and take coffee and lunch breaks, just as you would at the office.  The benefit to working from home is that your breaks can be enjoyed with family and friends.  If you must take a break to attend to non-work related tasks, be sure to carve out some time later to devote to work.

3.  Stay connected. 

When you work from home, you often miss out on having meaningful interactions with your colleagues, which can potentially be detrimental to your long term career.  Be sure to stay connected with your colleagues.  Call to check-in on how things are going, consult them on an assignment you are working on.  You don’t want to be forgotten or viewed as an outsider, so sometimes you have to work a little harder to maintain relationships around the office.

Photo credit:  Mackenzie Kosut  via Flickr licensed under Creative Commons

 

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By Kristen Prinz

Do you ever look around and wonder why people who don’t seem to work as hard as you or are not as smart as you are more successful than you? Business mentor Simon Reynolds’s recent Forbes blog post, The Strong Link Between Your Self Image And Business Success says it could be your self-image that is holding you back.  Reynolds claims that our subconscious negative self-assessments can prevent us from being bold and confident, thereby preventing us from achieving our potential.

We all know that blog posts over simplify complex issues, but Reynolds is on to something.  Daily affirmations might not get you the promotion or business deal you are seeking, but they probably won’t hurt either. Continue reading →

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By Amit Bindra

A lot of companies have created flexible work options, allowing their employees to work from the comfort of their homes.  Working from home can save time commuting and allow an employee to deal with personal errands.  An employee working remotely can still be available via phone, email, or even video.  Despite the ease that technology allows for communication, face time is still incredibly important, especially for employees that work with a team.

First, the employees that are easily accessible are typically the employees that receive important projects.  It is still easier to stop by someone’s office to discuss an important project than it is to schedule time with someone who is working remotely.

Second, face-to-face conversations lead to intangible benefits.  Conversations that develop in the break room or hallways can lead to collaboration and creative ideas.  An office setting can also maximize focus and motivation.  There could be several distractions at home that an office would minimize.  It might be easier to stay productive and motivated if there is an entire office of people working on projects.

Finally, visibility and easy accessibility can help with career advancements and promotions.  Even if two employees are working the same amount, seeing one employee doing the work at the office creates more of a lasting impression on a supervisor.

Employees should take advantage of flexible work options, especially if it improves quality of life and work balance.  However, it is important not to forget the value of face time.

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Amazing Office by Chris Meller // CC BY 2.0

By: Amit Bindra

Silicon Valley is known for companies like Apple and Google – and great innovations like the iPhone.  Soon, Silicon Valley might also be known for its conspiracy to keep wages low for employees.

A judge recently rejected a $324 million settlement proposed by Apple, Google, and two other tech companies finding there is “ample evidence” that the companies were involved in “an overarching conspiracy” to violate antitrust laws.  The case alleges that tech companies including Apple, Google, Intel, and Adobe agreed not to hire each other’s employees.

Lawyers filed a class-action lawsuit on behalf of nearly 64,000 employees arguing that the tech companies agreed not to hire engineers and programmers from each other.  These employees were building the key software that the companies profited from.  As a result of this arrangement, the employees suffered because the companies could pay them lower salaries.  This also allowed each company to keep their key programmers, preventing other companies from getting access to highly qualified individuals – and information.

The proposed settlement would have paid each employee about $4,000.00. The lawyers would have received twenty-five percent of the overall settlement.  Judge Lucy Koh rejected the settlement as too small saying that it failed to be “within the range of reasonableness.”

Judge Koh said she thought the case was strong and the evidence compelling, which includes incriminating materials from Steve Jobs (co-founder of Apple) and other tech executives.  In the ruling, Judge Koh wrote that there was substantial evidence indicating Mr. Jobs “was a, if not the, central figure in the alleged conspiracy.”  One example of his involvement is an email he wrote in 2005 after Google tried to hire some of Apple’s engineers.  In the email, Mr. Jobs wrote, “If you hire a single one of these people, that means war.”  Another example occurred in 2007.  After Mr. Jobs became upset that a Google recruiter approached an Apple employee, Google fired the recruiter to appease Mr. Jobs.

If a jury rules in the employees’ favor, damages could be tripled due to antitrust penalties.  While Apple, Google and other tech companies have produced great products, that does not excuse them from fairly paying their employees.

Sources: New York Times, Washington Street Journal, Reuters