Jim, an unhappy employee, sends an e-mail to every other employee at a small non-union company. The e-mail is critical of changes in the company’s vacation policy. Jim’s supervisor requests Jim’s presence in a meeting to "tell his side of the story." Jim asks that a fellow employee, Jane, be permitted to represent Jim in this meeting. The supervisor refuses Jim’s request, and after the meeting, discharges Jim. A few weeks later, the company receives a "charge of unfair labor practices" from the regional office of the National Labor Relations Board ("NLRB").

Wait a minute! There’s no union here. Aren’t these "at will" employees, subject to discharge for a good reason, a bad reason, or no reason at all? According to the NLRB, the answer to that question is "no." In Epilepsy Foundation, the NLRB held that "Weingarten rights" — the right to union representation in investigatory interviews – extends to non-union employees. The Epilepsy Foundation decision is consistent with the NLRB’s earlier holding, in Time Keeping Systems, that a non-union employee, who sent an e-mail to every fellow employee seeking to preserve a vacation policy, had engaged in protected activity "for mutual aid and protection."

In 1935, Congress passed the National Labor Relations Act ("NLRA") to safeguard the rights of employees to bargain collectively with their employer. Section 7 of the NLRA specifically protects the right of employees to engage in concerted activity for "mutual aid and protection." As the above decisions indicate, the presence of a union is neither required nor relevant to a charge that an employer has violated an employee’s right to engage in such protected activity.

In NRLB v. Weingarten, the United States Supreme Court held that an employee has a right to be represented by a union representative in a meeting with management that the employee reasonably believes may result in disciplinary action. Thus, where the employer insisted on holding the meeting with an employee, without the requested union representative, the Supreme Court found that the employer had violated the NLRA. The Court reasoned that, although the employee’s request for representation may be for selfish reasons, it is concerted activity for "mutual aid and protection" because the presence of a representative advances fellow union members’ interests by ensuring that the employer "does not initiate or continue a practice of imposing punishment unjustly."

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Supreme Court Redefines Scope of Americans with Disabilities Act

By Kenneth G. Scholtz, Esq.

In a decision that will dramatically alter what constitutes a disability under the Americans with Disabilities Act (ADA), the United States Supreme Court redefined the scope of the ADA yet again in Toyota Motor Mfg., Ky., Inc. v. Williams.

Enacted in 1990, the ADA requires employers to make reasonable accommodations for qualified workers who are limited by mental or physical impairments. Throughout its brief history, however, identification of employees entitled to the ADA’s protection has proven particularly difficult.

In Williams, the Supreme Court considered whether a worker who suffered from repetitive stress injuries, including carpal tunnel syndrome, and tendonitis was covered under the ADA. Williams was employed on an automobile assembly line and developed carpal tunnel syndrome and tendonitis in her hands and arms soon after beginning work at the plant. The employer transferred Williams to a position which required only the visual inspection of paint on assembly line cars, but then expanded Williams’ work duties to include the application of a coat of oil on the painted surface of each car. This task required Williams to keep her arms extended, at shoulder height, an activity that aggravated her existing symptoms. Unsatisfied with her employer’s efforts to accommodate her work restrictions, Williams filed suit.

Based solely upon her ability to perform the tasks associated with her assembly line job, the Sixth Circuit

determined that Williams was disabled for purposes of the ADA. However, the Sixth Circuit failed to inquire as to whether Williams’ impairments prevented or restricted her from performing everyday tasks that are of central importance to most people’s daily lives.

Because the Sixth Circuit decision failed to consider Williams’ ability to perform daily tasks such as household chores, bathing, and brushing her teeth, the Supreme Court reversed. The Supreme Court established a new standard in ADA employment cases: "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives." The Supreme Court held that some manual tasks, which may be unique to a particular job, are not an important part of most people’s daily lives. "Household chores, bathing, and brushing one’s teeth, in contrast, are among the types of manual tasks of central importance to people’s daily lives…" and these activities should have been considered in determining whether Williams was "substantially limited in performing manual tasks."

The effect of Williams is far reaching in that individuals who are attempting to prove disability status must now establish more than merely a medical diagnosis of an impairment. To qualify as disabled, the claimant must demonstrate that the impairment limits a major life activity, and that the impairment on the major life activity is "substantial." The Court held that case-by-case analysis of the effects of an impairment are particularly necessary where the impairment is one in which the symptoms vary widely from person to person, as is the case with repetitive stress injuries such as carpal tunnel syndrome and tendonitis.

The ADA requires employers to make reasonable accommodations for employees who suffer from a mental or physical impairment. After Williams, employers must still accommodate those employees whose impairments prevent or restrict the employee from performing the tasks that are of central importance to most people’s daily lives. However, the Court has redefined "disability" as it applies to the workforce. In order to limit potential liability under the ADA, it is imperative that an employer faced with an employee who claims to have a qualifying disability make proper inquiry into the scope of the employee’s impairment and consult legal counsel in order to tailor an appropriate response.

Rethinking Non-Competition Agreements in the Digital Age

You’ve carefully crafted a clause in the employment agreement you use with your key technical employees. It provides that any employee who leaves your firm is barred from working for a competitor within a 100 mile radius of your business for a period of two years. Now your top software engineer has resigned and has gone to work for your fiercest competitor. The competitor’s office is located within 100 miles of your office. A legal slam dunk, no?

In this new cyber age, unfortunately, things are not so simple. In this case, your software engineer, although working for a company within the 100 mile radius, is himself living in the mountains of Colorado 1,500 miles away, and never enters the 100 mile radius. Is he in violation of his non-competition clause? The answer is not clear.

What is clear, though is that particularly in information technology fields, the old rules regarding non-competition clauses in employment contracts are becoming rapidly outmoded. The rule of thumb had been that courts would typically enforce a non-competition clause if it was reasonably limited in its geographic scope and duration and there was a legitimate business reason for the restriction, such as protecting customer goodwill by preventing a former employee from exploiting relationships established during his employment. And indeed, this type of restriction worked fine to prevent competition from, say, a chemical salesman whose client base would be wholly within the restricted geographic area. But for information technology-based businesses, whose clients are typically far flung, and where, via telecommuting, its employees can work virtually anywhere, this old-fashioned form of non-competition agreement is practically useless.

The first question one should address is what geographic market does the employer presently serve or plan to serve? If the employer does no business west of the Mississippi, and does not plan to, the employer simply invites having the non-competition clause struck down if it insists on restricting competition nationwide. On the other hand, if the employer’s market is nationwide, or even international, courts have upheld geographic limitations which extend to the United States, North America, or even internationally.

Second, what is the interest the employer is seeking to protect? Let’s assume that the employee is a salesman who has no access to confidential information, and whose territory is limited to Pennsylvania, Ohio and New York. Even if the employer serves a nationwide customer base, a court may be loathe to enforce a restriction broader than that three state area. However, if the employee is a senior executive with access to highly confidential business information that could do great damage in the hands of a competitor, courts will be more likely to impose a blanket ban on working for a competitor.

Third, how many competitors does the employer have and where are they located? For instance, if a software company has only two competitors, and they are in separate locales around the country, a nationwide restriction may be reasonable because (a) the competitive damage which can be done where a market is divided only three ways can be considerable; and (b) a geographic restriction other than a nationwide restriction would be useless, because the competitors are located nowhere near the employer.

Courts have recently begun to cut the time limitations in non-competition agreements in the information technology fields. They have cut two year restriction periods back to nine or six months, reasoning that the technology to which the employee has access would be stale in a short period of time. This reasoning, though, gives short shrift to lead times in the development and implementation of new products and features. It may take much more than nine months for a product in development even to hit the market. Moreover, if the former employee has access to long term strategic or marketing plans, she has knowledge which could do damage even three or four years in the future. Thus, it is wise to be aggressive in setting the time period of the restriction.

A court is more likely to enforce a broad restriction in terms of time and geography if the business in which the employee is prohibited from working is defined relatively narrowly. A court may be reluctant to prevent an employee from working for "any software company in the United States," but may enforce a restriction involving "any designer and seller of customized database software marketed to companies which mine coal." It is critical, therefore, to define just what market a business is serving, and to define that market as narrowly as possible in the non-competition clause.

For some employees, it may make sense to limit the non-competition restriction to the job he is presently performing. A salesperson may not do any damage working for a competitor as a customer service representative. Accordingly, for appropriate employees, it may strengthen the enforceability of an otherwise broad (in geographic and temporal terms) non-competition clause to narrowly define the jobs restricted.

Any non-competition agreement should also contain a non-solicitation clause. The non-solicitation clause prevents the employee, for a given period of time, from calling upon or soliciting business from the employer’s customers or clients.

Turning to the techie described at the beginning of this article, careful drafting of a non-competition agreement could have prevented that dilemma. A non-competition clause barring the employee from working for any competitor (in a narrowly-defined market) for 18 months to two years, no matter where the competitor or the ex-employee is located, could put the techie out of business whether he was working in Colorado or next door. Although not a guarantee, this clause would have provided the best ammunition for protecting the employer’s competitive interests.

Mr. McTiernan, a member of the Litigation group and Co-Chair of the Labor and Employment group, has been practicing law for more than 20 years, primarily in the area of labor and employment law. He has successfully represented employers in both jury and non-jury trials, including discrimination, wrongful discharge and civil rights cases. Bob has handled nearly a hundred labor arbitrations and has negotiated labor contracts with every major union representing private and public employees.

An important part of Bob’s practice is helping employer’s avoid legal problems. He often counsels clients on employment agreements, confidentiality issues, non-competition covenants, wage and hour problems and employee discipline and discharge.

Bob has written about employment law in Allegheny Business News and Dynamic Business magazine. Bob has also served as a panelist and instructor for both the Pennsylvania and Allegheny County Bar Associations.

As a candidate for the Commonwealth Court of Pennsylvania in May, 1989, Bob received a "well qualified" rating from the Pennsylvania Bar Association Judiciary Committee and was endorsed by the Philadelphia Daily News, the Pittsburgh Post-Gazette and the Pittsburgh Courier.

He has an AV rating in Martindale-Hubbell Law Directory, which is the highest rating for legal ability and ethical standards awarded by this national directory of lawyers.

Bob may be reached at 412/594-5528 or via e-mail at rmctiernan@tuckerlaw.com.