Posted on July 30, 2008 by Roxanne Garner

Harrisburg City Council Proposes "Life Partnership Registry"

Typically  a full time employee is afforded the benefit of health insurance by an employer.  A full time employee is usually able to cover a spouse and children at an additional cost.  However more and more companies have been extending health insurance to also include a domestic partner of a full time employee.

Just two weeks ago Harrisburg City Council Vice President, Dan Miller proposed an ordinance that would create a "life partnership registry" for the City of Harrisburg. The proposed legislation would create a registry where individuals could voluntarily register their life partners. The registry would be used as a base business record for businesses who choose to offer health insurance to an employee's unmarried partner. The registry would cover individuals who live or work in Harrisburg. 

The concept of a domestic registry is not new. States like Maryland, Vermont,  California, Hawaii, New Jersey, Maine and the District of Columbia have established registries.  Similarly Philadelphia and Pittsburgh have also established registries.  Several states already have statutes on civil unions and domestic partnerships.

The Harrisburg City bill's proponent advised that the Harrisburg City government already offers benefits to employees' domestic partners as a matter of policy. The proposed legislation would not mandate city employers provide life partners health benefits, but would assist employers and registered life partners should the employer choose to offer the coverage. The life partner designation would also grant domestic partners, committed to each other's maintenance and well being, visitation rights in health care facilities located within Harrisburg City limits. Eligible couples need to be over 18 years old and living in the same home. They also need to meet three of five financial criteria, such as sharing a mortgage, bank account or being designated as a beneficiary on their partners' life insurance policy. The bill is expected to be voted on in the Fall of 2008, and has the backing of two other City Council Members.

Advocate groups were quick to point out that the bill benefits the unmarried heterosexual community as well as the homosexual community. "We think this is an important step toward assuring that those citizens who share a committed life partnership are granted the same rights as any other citizen in the same situation." Council Vice President Miller said. "This includes health care and visitation rights." 

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Posted on July 15, 2008 by Christina Hausner

Making the Most of a Layoff

I was recently contacted by a reporter and asked to describe steps employees who are laid off from employment may take to maximize what they take away. As I prepared my response it occurred to me that some of the readers of this blog may find this information helpful. With the unemployment rate growing, there is a lot of advice available on the internet for those who find themselves in this unfortunate circumstance. FastCompany.com has A Guide to Layoff Survival that provides some practical advice on dealing with emotions, managing finances and finding another job. I have focused on maximizing your benefits in a layoff situation. Following are some of my suggestions:

·         Explore whether benefits or other parts of a severance package are negotiable. Consider whether you can offer your employer an executed covenant not to compete or non-solicitation agreement. If you have already signed these documents, this is not an option, but if not, your employer may be willing to pay you for not competing or not soliciting either its customers or employees for a specific period of time. 

·         If you have not been offered a severance package, or if it is minimal, evaluate whether you have something to offer your employer in exchange for severance payments or other consideration. Can you offer to waive claims relating to your employment or termination that may have arisen out of the Employment Retirement Income Security Act, or due to discrimination on the basis of age, disability, sex, race, religion or national origin?   (Workers Compensation and minimum wage-overtime claims cannot be waived.)

·         Find out about Unemployment Compensation - the amount of benefits and the amount of time you can expect to receive them. Are there eligibility questions either because of your lack of earnings record, or because you were terminated for willful misconduct, or you voluntarily quit? 

·         Could you continue to provide services to your employer as either a consultant or on a part-time basis? Assuming the relationship is good and the termination is simply economic, these could be alternatives that would be acceptable to you and your employer. In Pennsylvania, you may earn up to 40% of your weekly benefit rate (partial benefit credit) before any deduction is taken from your unemployment compensation weekly benefit. 

Of course, it makes sense to consult with an attorney to explore these options and evaluate your best course of action. Although generally applying for Unemployment Compensation benefits is the first thing you should do, if there is any question about your eligibility status, or if the facts of whether there was a firing or a quit will be disputed, it makes sense to consult an attorney before making an application for benefits. 
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Posted on July 10, 2008 by Christina Hausner

Non-Competes: Pigs Get Fed, But Hogs Get Slaughtered

So you've got your program all lined up - every new employee, regardless of job duties - signs a ten-year covenant not to compete with an unlimited geographical scope. No exceptions. Everyone knows the rules, so you are ready to go to court when Joe, whose sales territory was the Northeast United States, goes to work for your competitor in the mid-West. 

Not so fast. Nothing frustrates clients as much as being told that a court won't enforce an agreement that is clear and in black and white. But in order to be enforceable, a non-compete must be reasonably limited in duration and territory. The duration of the covenant cannot be longer than reasonably necessary to protect legitimate interests, such as customer goodwill, trade secrets or specialized training. For example, your agreement should be no longer than the time it will take a new hire to demonstrate his or her effectiveness to customers if the non-compete seeks to protect customer goodwill. Odds are that it is not ten years. In addition, the geographic scope needs to be limited to the territory covered by the employee during his or her employment in customer goodwill cases. Courts don't readily enforce multi-country restrictions against sales people with limited territories. 

Although there are many cases in which courts have reformed or rewritten an overly broad non-compete, if an employer is a real hog, the court will simply state that it will not rewrite a non-compete and refuse to enforce it at all. This was clearly the case in 1973 in Reading Aviation Service, Inc. v. Bertolet, when the Pennsylvania Supreme Court said that they would not rewrite a non-compete that was unlimited in time and space. More recently, U.S. District Court Judge Stewart Dalzell in Fres-Co System USA, Inc. v. Bodell, reacted the same way and declined to reform an overly broad non-compete agreement stating that to do so would have sanctioned the employer's use of his excessive bargaining power to insist upon unreasonable and excessive restrictions upon its employee. The court stated that the non-compete's terms far exceeded what was reasonably necessary to protect plaintiff's business interests because employer's business was selling coffee packaging materials in the Southeastern United States and the Caribbean, whereas the non-compete spanned four industries on three continents. 

Many employers try to avoid this result by including a provision in the non-compete stating that should any portion or term of the non-compete be deemed unenforceable, the parties agree that the court should reform the agreement to one which is enforceable. However, the best practice is to include no terms in your non-compete that exceed what is reasonably necessary to protect your legitimate business interests. That analysis requires looking at each employee differently to determine what business interests would be jeopardized were there no restriction on his post-employment activities. Is it goodwill? Is it protection of trade secrets? What is the low end of the range of term of duration and geographic scope that will adequately protect you? Be honest and not overreaching, and you will be have a covenant that has a much greater chance of being enforced. 
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