NOTE: If the court had found that the ESA did not provide for an effective enforcement mechanism and therefore the legislature intended for the courts to be involved, the court would have found that the OT provisions were indeed implied terms of K of employment But they - so there was no claim, and no claim could be certified as class action didn’t Crawford says: Decision sounds death knell for class actions in terms of bringing class actions re: employment standards Restrictive Covenants Deal with what you can do after employment. They consist of ongoing obligations on a former EE even after termination of employment Very important mechanisms used by to protect their proprietary interests ER’s Types that will be seen in employment agreements/as appendices to them are: 1. Non-compete agreement will restrict the EE from working in certain – competitive activities for a period of time after termination of employment and within a certain geographic area 2. Non-solicitation agreement Variant 1 restriction on soliciting customers – Unlike non-compete agreement, this is less invasive in that you’re still allowed to compete against your formal ER but you can’t solicit customers you were working with with your former ER Will usually set out geographic limitation Variant 2 non-solicitation of – EE’s Prevents you from getting your colleagues to come with you At c/l, courts generally hostile to restraints of trade Why? Policy: Violate public policy encouraging individual liberty and an individual’s ability to earn a living There is a public interest in free exchange of goods and interests and non-compete clauses run counter to that policy The starting position of the courts is that all restraints of trade are prima facie unenforceable, unless they are reasonable in the public interest So what is a reasonable restrictive covenant? 3-4 factors 1. Geographic scope of the restrictive covenant 2. Length of Time 3. Scope of Activity restricted
NOTE: If the court had found that the ESA did not provide for an effective enforcement mechanism and therefore the legislature intended for the courts to be involved, the court would have found that the OT provisions were indeed implied terms of K of employment But they didn’t - so there was no claim, and no claim could be certified as class action Crawford says: Decision sounds death knell for class actions in terms of bringing class actions re: employment standards Restrictive Covenants Deal with what you can do after employment. They consist of ongoing obligations on a former EE even after termination of employment Very important mechanisms used by ER’s to protect their proprietary interests Types that will be seen in employment agreements/as appendices to them are: 1. Non-compete agreement – will restrict the EE from working in certain competitive activities for a period of time after termination of employment and within a certain geographic area 2. Non-solicitation agreement Variant 1 – restriction on soliciting customers Unlike non-compete agreement, this is less invasive in that you’re still allowed to compete against your formal ER but you can’t solicit customers you were working with with your former ER Will usually set out geographic limitation Variant 2 – non-solicitation of EE’s Prevents you from getting your colleagues to come with you At c/l, courts generally hostile to restraints of trade Why? Policy: Violate public policy encouraging individual liberty and an individual’s ability to earn a living There is a public interest in free exchange of goods and interests and non-compete clauses run counter to that policy The starting position of the courts is that all restraints of trade are prima facie unenforceable, unless they are reasonable in the public interest So what is a reasonable restrictive covenant? 3-4 factors 1. Geographic scope of the restrictive covenant 2. Length of Time 3. Scope of Activity restricted
Walsh%20-%20326A%20Employment%20-%202010%20Final.docx