What was that all about?
On September 7, 2010, Hewlett-Packard sues its former CEO and current Oracle chief Mark Hurd in a California lawsuit that most practitioners here agree is untenable under current California law. (See here and here for just a few of the head scratchings.) In the complaint, HP seeks to enjoin its former head honcho from working for a competitor relying on what appears to be the discredited inevitable disclosure doctrine.
It is a lawsuit poised to challenge the very balance of power between employers and employees in California. At issue is whether a California employer can find a creative way to make a non-compete actually stick in this State. The facts are perfect –- a high ranking official whose head is brimming with HP trade secrets, including high level corporate strategies, is ousted for alleged indiscretions and soon finds himself at the helm of arch rival Oracle. How can Hurd possibly do his job steering the strategic course of HP’s key nemesis without HP’s secrets bouncing around in his head like a superball causing havoc with Hurd’s synapses? On top of these great facts, the lawyers for each side are top notch, and they come equipped (presumably) with a legal war chest capable of funding a spritely battle.
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 Part 5 (The Final Entry): The California Courts In Action
This is where the action has been in 2009 employment law -- in the appellate courts. From commuting to class actions, tip pools to trade secrets, California’s courts were busy. In this, our final installment of the year in review, we look at just a few employment decisions we found particularly interesting.
On The Subject Of Commuting…:
A few commuting technicalities were cleared up for employees and employers in 2009, including a clarification of exactly what constitutes the commute. (And all this time I thought it was all that sitting in traffic I do twice a day, along with tens of thousands of my closest smog-spewing friends.)
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[A Flir infrared imaging system utilizing a microbolometer array]
 You’ve probably heard about the inevitable disclosure doctrine. It’s a great trick for employers. It’s like getting all the benefits of a non-compete without actually having to bother with those nettlesome non-compete agreements. Just don’t try it here in California. At least not without a sizeable bankroll and a Get Out Of Jail Free card, as Flir Systems, Inc. learned the hard way. It was sanctioned $1.6 million for seeking to invoke the doctrine in a California trade secret case. This is just one of the many lessons provided to us by the California appellate court in the case of Flir Systems, Inc. v. Parrish (2d Civ. No. B209964, June 15, 2009). For those of us who practice trade secret law, it’s a good read.
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June 1, 2009 | Posted by Martha Doty | Topic(s): Restrictive Covenants, Wage and Hour Laws , Leave Laws, Workplace Privacy Issues, Reductions In Force, Plant Closings, WARN, Cal-WARN, Wrongful Termination, Discrimination, Harassment, Retaliation, Disability, FEHA and Other State Laws, Federal Laws, Covenants Not to Compete, Employment Litigation
 Just how "unique" is California employment law? We asked our panel of experts to come up with their TOP 10 list of uniquely California employment laws, rules, and regulations. Here were the first ten to pop to mind: 1) VACATION PAY– Unlike virtually every other state, California does not allow employers to have “use it or lose it” vacation policies. Instead, California requires employers to either cash out their employees’ accrued vacation at the end of the year or allow them to carry it over up to a “reasonable cap” on accrual. [thanks to Alan Light for the photo
of the Top 10 King!]
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 What ever happened to good old-fashioned competition?
And this includes competition for top employees.
Since when has it become a tort, or the ever popular “unfair competition,” to offer top employees more competitive salaries and benefits in an effort to entice them away from their current at-will employment situations?
Yet, this is the essence of the claim recently filed in Florida by Vistakon Pharmaceuticals (a subsidiary of Johnson & Johnson) against competitor Bausch & Lomb. Vistakon, maker of “ocular anti-bacterial products” (among other things) has sued Bausch & Lomb claiming that B&L, in entering the “ocular anti-bacterial products” market, is trying to steal (actually to “flagrantly pirate”) Vistakon’s at will sales force by…offering them better employment. (The nerve!)
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It is well known in the employment world that California is not the state to try out your new noncompete language. In the state that created the legislative Task Force to Promote Self-  Esteem, employee interests have always been paramount to those of the employer; and nowhere is this better reflected than in California’s venerable 136-year-old statutory prohibition on noncompete agreements. In refreshingly clear and concise language (for a law drafted by politicians anyway), California’s Business and Professions Code Section 16600 stands out like a sentinel, protecting the right of California’s workers to find the best work available to them, and barring any contracts that seek to prevent workers from engaging in healthy, lawful competition. Read More
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An interesting footnote to the Edwards v. Arthur Andersen non-compete opinion is the Supreme Court’s refusal to address the so-called trade secret exception to the non-compete prohibition of California’s B&P Section 16600. In essence, the Court rejected the Ninth Circuit’s effort to imply a “narrow restraint” exception into 16600’s otherwise straightforward prohibition on restrictive covenants, but then stated: “We do not here address the applicability of the so-called trade secret exception to section 16600….” Read More
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 What’s An Employer to Do?
Most California employers are well aware that non-compete agreements are generally unlawful in this State. And most California employers are none too pleased about it. But a statute that has been on the books for over 136 years is a statute that must be reckoned with, and – according to the recent California Supreme court opinion in Edwards v. Arthur Andersen - strictly obeyed.Read More
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