Uncategorized – CDFirm https://cdfirm.com Top Probate, Family & Business Attorneys in Dallas, TX Mon, 21 Sep 2020 18:44:08 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.15 144340274 Should Black Lives Matter Apparel Be Allowed At The Workplace? https://cdfirm.com/should-black-lives-matter-apparel-be-allowed-at-the-workplace/ Mon, 17 Aug 2020 16:02:41 +0000 https://cdfirm.com/?p=6058 The Black Lives Matter (BLM) movement has attracted thousands of supporters in recent months. As sports returns to TV, we’re seeing players wearing shirts promoting this social justice cause, some even replacing player names with the names of victims of racial violence. But what happens when employees wear BLM shirts, masks, or other apparel to […]

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The Black Lives Matter (BLM) movement has attracted thousands of supporters in recent months. As sports returns to TV, we’re seeing players wearing shirts promoting this social justice cause, some even replacing player names with the names of victims of racial violence. But what happens when employees wear BLM shirts, masks, or other apparel to the workplace?

In recent weeks, Starbucks came under fire after forbidding employees from wearing Black Lives Matter clothing and accessories. After the public pushed back, Starbucks reversed the policy and capitalized on the publicity by creating and distributing Black Lives Matter t-shirts expressing solidarity with the movement. In contrast, Whole Foods, which also banned BLM apparel, is standing firm, citing its dress code forbidding apparel with visible slogans or messaging. The company now faces a lawsuit from employees.

As the economy continues to reopen, more employers will have to address the issue, so now is the time to determine the best response for your company. In most cases, the matter is as simple as clarifying the dress code. If employers have a policy against workers wearing non-company slogans, they need to enforce the guidelines consistently, across the board. In the case of Whole Foods, the company has allowed apparel with political slogans, support for LGBTQ issues, sports team logo shirts and caps, and other non-company related messages. Selective enforcement may prove to be an embarrassing and possibly expensive lapse for the employer.

An employer that allows BLM apparel should decide in advance how to handle other messaging, including slogans like “Blue Lives Matter” that are deliberately divisive. Be prepared to explain that allowing support for BLM is due to the seriousness of the issue right now and is a one-time exception to the dress code.

Keep in mind, however, that if employees are wearing Black Lives Matter apparel to protest their company’s discriminatory practices and are terminated or harassed, they may be protected by law and have basis for a claim under Title VII of the 1964 Civil Rights Act or the National Labor Relations Act.

Black Lives Matter is an emotionally charged issue at a time when tension is high for the entire country. Consulting an employment law attorney can help you develop a thoughtful approach that is legally sound. As always, we are happy to help.

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Courts Examine the Toll of Noncompete Agreements https://cdfirm.com/courts-examine-the-toll-of-noncompete-agreements/ Mon, 18 Nov 2019 16:52:30 +0000 https://cdfirm.com/?p=6009 Noncompete provisions are common in employment contracts. Such agreements (NCAs) usually state that an employee agrees not to compete with the employer in the same industry for a specified period of time after the employee leaves the company. Many employers include a tolling clause in their NCAs, which states that the restrictions can be extended […]

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Noncompete provisions are common in employment contracts. Such agreements (NCAs) usually state that an employee agrees not to compete with the employer in the same industry for a specified period of time after the employee leaves the company. Many employers include a tolling clause in their NCAs, which states that the restrictions can be extended by the time period during which the employee broke the contract. If, for example, the employee had a one-year noncomplete and breached it for six months, the restriction could be extended by six months.

Tolling has been under scrutiny in court on a state-by-state basis. In Georgia, the courts historically have refused to extend NCAs if the agreement does not have an enforceable tolling provision. A recent case, Bearoff v Craton, the defendants sold a retail store in 2009 and, as part of the sale, signed an agreement not to compete with the buyers for 81 months from the sale date. A promissory note that was part of the sale was renewed in 2009 without modification of the NCA. In 2015, the sellers planned to open a competing retail store and were met with a cease-and-desist order and lawsuit. The buyers asked the court to extend (toll) the noncompete until the promissory note had been paid. The trial court, then the appeals court, declined, noting that no amendment to the NCA was made when the maturity date of the promissory note was adjusted.

A Florida appellate court overturned a trial court’s ruling in Vela v. Kendall, which addressed an alleged violation of a noncompete provision between a delivery service and an independent contractor, Robert Vela, which restricted Vela from making deliveries for “no less than two years” from the date of termination. In 2001, Vela was terminated and five months later was sued for violating the NCA. The judgment, three years later, granted damages to the plaintiff and extended the noncompete period for another two years. Vera appealed, saying that the plaintiff was granted double recovery. The appellate court ruled that the original damages were fair, but that the trial court erred in its extension of the injunction.

Texas courts have thus far considered the duration of NCAs on a case-by-case basis. While unlimited restrictions are unenforceable, the reasonable time limit depends on the industry, the employee’s role in the company, the market, and other factors. For example, if the agreement protects confidential information, the provision should not extend beyond the date when the information ceases to be valuable. The guiding principle for Texas courts is that the agreement should be no more restrictive than necessary to protect an employer’s legitimate business interests.

In drafting NCAs, employers must take care to ensure that the duration, including tolling provisions, are fair and reasonable. Since the same terms could be considered reasonable under some circumstances and not others, consultation with an attorney familiar with the body of case law and the language of a strong NDA is invaluable. As always, we are happy to help.

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