Corporate Finance Lawyer & Attorney : Davis Wright Tremaine Law Firm

August 13, 2008

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By Jennifer L. Brockett, Stuart W. Miller, John P. LeCrone and Emilio Gonzalez

California's Supreme Court, in the recent case of Edwards v. Arthur Anderson LLP, has affirmed California's long-standing ban on noncompete agreements and explicitly extended it to so-called “nonsolicitation” provisions, as well. The Court ruled that noncompetition and nonsolicitation clauses are void in California, unless they fall within a statutory exception, such as agreements involving the sale of a business or shares of stock in a corporation. The Court also found that an employer that requires employees to sign an agreement containing such a clause may commit an unlawful business practice subject to tort damages. Continue reading...

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Employers gain flexibility in meal and rest periods,
“off-the-clock” work

By John P. LeCrone and Janet Grumer
July 2008

Employers in California finally have some help navigating the state's complicated (and often costly) meal and rest period and timekeeping statutes and regulations. On July 22, 2008, the California Court of Appeal issued a comprehensive decision in Brinker Restaurant Corporation v. Superior Court, a wage hour class action alleging meal and rest period and “off-the-clock” violations by Brinker Restaurant Corporation.

Although this decision giving employers greater flexibility could be reversed, it establishes prevailing California law for the near term. California employers should embrace the ruling, which is summarized in this advisory, and take the initiative now to ensure they are in compliance.

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February 25, 2008

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By Christopher R. Helm

Effective Dec. 26, 2007, employers are now required to use the revised Employment Eligibility Verification Form (I-9) for new employees or to re-verify an existing employee's identity and employment eligibility. Along with the I-9 form, USCIS has also revised the list of acceptable documents to show identity, employment authorization, or both. For more information, please see our prior advisory on this subject. In addition, you are advised to conduct periodic self-audits to ensure that your I-9 documentation is in good order. U.S. Immigration and Customs Enforcement (USICE) is expected to heighten its enforcement efforts, particularly against those employers it suspects of knowingly hiring workers with improper documents.  

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By Minh Phung Ngo, Richard M. Rawson, Christopher R. Helm and James M. Mei

On Nov. 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released a revised Employment Eligibility Verification Form (I-9). The revised Form I-9 will become effective once the notice is published in the Federal Register. USCIS, however, encourages employers to start using the revised Form I-9 immediately. The new form removes five documents from List A of Acceptable Documents. These documents are:

• Certificate of U.S. Citizenship (Form N-560 or N-561)
  
  
• Certificate of Naturalization (Form N-550 or N-570)
  
  
• Alien Registration Receipt (I-151)
  
  
• Unexpired Reentry Permit (Form I-327)
  
  
• Unexpired Refugee Travel Document (Form-571)

The revision brings Form I-9 into compliance with the 1997 rule that had eliminated the above documents as acceptable documents for proof of both identity and employment eligibility. In addition, instructions for Section 1 of the revised Form I-9 now expressly state that providing an employee's social security number in Section 1 is voluntary, unless the employer participates in E-Verify.

Employers do not need to complete the revised Form I-9 for existing employees. Employers only need use the new form when verifying the employment eligibility of new employees and when re-verifying existing employees. After the effective date, all previous versions of Form I-9, in English and Spanish, will no longer be valid. Employers who continue to use the outdated editions of Form I-9 after the effective date may be subject to fines and penalties.

The revised Form I-9, as well the "Handbook for Employers, Instructions for Completing the Form I-9,” are available online at www.uscis.gov. To order the new forms, you may call USCIS at 1-800-870-3676.

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This summer, the Oregon legislature again showed its anti-business bias by enacting several changes in Oregon’s employment law that will adversely Oregon employers and out of state employers with employees in Oregon. The changes are effective January 1, 2008 and include the following:

• voids an arbitration agreement between an employer and an employee unless the employer notifies the employee in writing at least two weeks prior to the beginning of employment that the employee will be required to enter into an arbitration agreement (ORS. 36.620); and
  
• makes non-competition agreements voidable unless the employer informs the employee, in writing and at least two weeks before employment begins, that a non-competition agreement is required. Additionally, only “white collar” exempt employees may be required to enter into non-compete agreements, and the employee must have access to trade secrets or other confidential business information. A non-competition agreement is only available for an employee who earns more than the median income for a family of four, which is now approximately $60,000, and the agreement may not exceed two (2) years from the date of the employee’s termination (ORS 653.295). 
  

These changes are effective for agreements entered into on or after January 1, 2008.
Employers located in Oregon, employers with employees working in Oregon and those contemplating acquiring, starting or re-locating an Oregon business should take heed. These changes will make it more difficult for employers to protect their legitimate business interests and reinforce Oregon’s label as a difficult place to do business.

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