Fairfax Attorney | Employment Attorney

Texas Changes Its Statute of Limitations for Filing a Sexual Harassment Claim

October 16, 2023

* The following is intended for educational purposes only. An attorney-client relationship does not exist.

Texas Employment Law: Just last year, in August of 2022, the statute of limitations for filing a sexual harassment suit with the Texas Workforce Commission ("TWC") was extended to three hundred ("300") days after the alleged sexual harassment occurred. It should be noted that this is specific to sexual harassment and not other forms of harassment.

Employees need to be aware of the deadlines for filing their complaints of discrimination. Further, employees should be aware that they have to meet "administrative" requirements prior to filing suits.

If you believe you have been discriminated against by a private sector employer, reach out to the Texas Workforce Commission ("TWC"). More to come on Texas Employment Law basics. * The foregoing is not legal advice, it is intended for general educational purposes, an attorney-client relationship has not been formed, nor does one exist on account of the above, if you think you are being discriminated against at your place of employment then you need to contact an attorney, likewise if you are an employer and find yourself on the wrong end of a discrimination suit, contact an attorney for advice.

Non-Compete Clauses Pursuant to An Employment Agreement

September 26, 2023

* The following is intended for educational purposes only. An attorney-client relationship does not exist.

In 2011 the Virginia Supreme Court issued an opinion in Home Paramount Pest Control Cos. v. Shaffer, which has seemingly proven to be a paradigm shift in the way Virginia Courts assess the "function" element of non-compete agreements.

In Virginia, courts look to three factors when assessing whether a non-compete provision will be enforced. The three factors are 1) function, 2) duration, and 3) geographic scope. The function element is where a court analyzes the function or activities of the business seeking to enforce the agreement, and compare that to the activities that the employee engages in at his/her new company. The duration simply refers to the length in time that an employee is prohibited from competing with their former employer. The geographic scope is similarly self explanatory. However, the way courts analyze both provisions is dictated by a plethora of case law and of course depends on the individual facts of a given case.

As it pertains to the Paramount decision which focused on the "function" factor, prior to the decision an employer could theoretically prevent an employee from quitting their job, and working for a competitor in ANY capacity. In theory, an employer could have prevented an employee from passively helping a company that directly competes with the employer. The decision in Paramount however walked this back and now an employee that has signed a non-compete could potentially work for a direct competitor depending upon the role the employee engages in at the new company.

Before the Paramount decision, if an employee wanted to defend against a breach of a non-compete agreement, they were effectively left with attacking the non-compete on the grounds of duration and geographic location. (A non-compete with a time limit of 2 years is generally upheld in Virginia.) One caveat to this would be if the previous employer were attempting to prevent their former employee from working in an industry that was wholly unrelated to their area of business. An employee would most likely defend against a breach of a non-compete agreement using the "function" factor in such a scenario. Of course, if such was the case, there likely would be no reason to bring a suit in the first place, and therefore, no need to defend against such a suit.

Now, the likelihood that an employee would resort to the "function" factor as a defense has increased thanks to the Virginia Supreme Court's decision in Paramount.

* The foregoing is not legal advice, it is intended for general educational purposes, an attorney-client relationship has not been formed, nor does one exist on account of the above, if you think you are being discriminated against at your place of employment then you need to contact an attorney, likewise if you are an employer and find yourself on the wrong end of a discrimination suit, contact an attorney for advice.

Employment Law Basics:

September 26, 2023

* The following is not legal advice, it is intended for general educational purposes, an attorney-client relationship has not been formed, nor does one exist on account of the below. Please contact an attorney for advice that pertains to your specific employment issue.

I've gained such a wealth of knowledge in employment law over roughly eight years that I think it would be a shame to let it go to waste. So here are my top five insights regarding employment law. Of course, businesses should take note as well.

1) Both employers and employees need to be familiar with their jurisdiction's administrative body that's designated to deal with employment suits. In Maryland it's the MCCR, in D.C. it's the D.C.H.R., in Virginia it's the D.H.R., and for Federal Claims it's the EEOC;

2) the time frame for which an employee needs to contact one of these administrative bodies to successfully bring a suit varies widely between the three jurisdictions and the EEOC. For Federal Claims (Federal Employees), employees must make contact with an EEOC counselor within 45 days of the date of the alleged discrimination, in Maryland it's six months, in Virginia it's 180 days, and in the District of Columbia, it's one year. Of course, these general deadlines can vary widely depending on the type of claim. In addition, depending on the circumstances, you can bring a federal claim even if you're a private sector employee in one of these states. The statute of limitations is generally longer than the 45 days given to Federal Employees. (Obviously you should consult an attorney to determine the appropriate deadline for your case. For example, if you are an employee of the District of Columbia there are strict notice requirements that must be met and the time frame for bringing the suit is different.);

3) for employees, once you file a claim, you very well may be discriminated against for filing the complaint, employees should think long and hard about the potential consequences of filing with an administrative body (pro-tip, the respective administrative bodies are there to provide easy access to employees and in theory to help employees bring suits on their own, however, they do not advise people on whether or not their suits are viable), so again, consult an attorney;

4) in all three jurisdictions, if an employer retaliates against an employee after six months have passed from the date the employee files, this is generally a significant factor weighing in favor of a defendant/employer on a retaliation claim, whereas retaliation that takes place within a week would be a significant factor weighing in favor of an employee; and

5) employees and employers need to think about comparators (i.e. has a person of one race/sex/gender/religion, etc. been disfavored when compared to similarly situated persons of another race/sex/gender/religion, etc.). Comparator evidence often weighs heavily in determining the outcome of employment discrimination cases.

Do You Know Your State's Trade Secrets Law(s)?

March 27, 2024

* The following is intended for educational purposes only. An attorney-client relationship does not exist.

Trade secret laws have become weaponized. Find your self trying to negotiate a separation agreement? Better check what's on your computer, else you may find yourself defending a suit instead of bringing one.

Even if just by accident, retaining items from your company on your personal computer can have severe consequences in terms of the amount of money it takes to hire a forensics firm and settle the matter with your old company. For some, they may not understand what a trade secret is.

Virginia defines trade secrets as: information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that:

1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Virginia Code Sec. 59.1-336 Short title and definitions (Virginia Statutes (2024 Edition))

Not explicitly stated are client lists, however, one could argue it falls under a compilation. A very valuable compilation at that. Client lists might be the issue that comes up the most when it comes to trade secret disputes. That's why it's crucial to understand the trade secrets statute and when in doubt, call an attorney.

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