Non-Competes Still Important in Economic Downturn

John R. Maley

During these trying economic times, some employers might be tempted to defer review of their existing non-compete programs, or to not pursue departing employees with non-competes who join competitors. Neither course should be taken without careful consideration.

Quality employees are one of the most important assets of any employer, and effective compensation systems and job satisfaction are the best tools to recruit and retain the best talent. Non-compete agreements, however, have long been an important tool for many employers to help protect their intellectual property and their investment in employees. Contrary to popular myth, non-competes--if properly drafted to conform with current law--can be eminently enforceable.

In today's economic environment, with little or no compensation increases available at many employers, a struggling company can have a harder time keeping its talented staff from defecting to competitors. So non-competes and enforcement can be even more important than ever. 

Accordingly, employers without non-competes should consider whether they should be utilized with certain personnel such as executives, sales, and technical staff. Implementing an effective non-compete program is a modest investment in legal fees that can be accomplished in relatively short order.

Meanwhile, for those with existing non-competes, a review of these important contracts is appropriate. Non-compete law has evolved in Indiana during this decade, justifying updates to many non-competes, and changes in company practices and operations can necessitate updates to existing agreements as well. 

As for enforcement of non-competes against departing employees, in tough economic times it can be more important than ever to enforce these agreements. With shrinking overall market sales volume in many industries, for instance, loss of key sales personnel to competitors can magnify an employer's challenges in surviving this downturn. Moreover, delays in seeking enforcement can result in a waiver of an employer's rights.

John R. Maley is a partner with Barnes & Thornburg LLP and recognized in Best Lawyers in America for his employment law expertise. He regularly advises private and publicly traded companies on non-compete and trade secret matters and has prosecuted numerous non-compete matters. He can be reached at jmaley@btlaw.com.

New Laws Affecting HR 

President Obama Signs Lilly Ledbetter Fair Pay Act

On January 29, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009. The act is Congress's response to the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire and Rubber Co., which held that pay discrimination claims under Title VII are time-barred when plaintiffs fail to file charges with the Equal Employment Opportunity Commission within 180 days (or 300 days in deferral states) of the discriminatory pay decision. The act expressly overturns the Court's decision and provides that every paycheck continues a distinct discriminatory practice. Such a rule virtually eliminates the statute of limitations on some pay discrimination claims.

For details on the case and further explanation of the act and its implications, read Barnes & Thornburg LLP's Labor Alert on this issue. If you need guidance developing policies that comply with the act, e-mail info@FlashPointHR.com or call 317.229.3035.

Revised Form I-9 Takes Effect in February
The U.S. Citizenship and Immigration Service (USCIS) recently revised the types of documents employers may accept when completing the Form I-9, Employment Eligibility Verification.

The revision adds new List A documents that employers may accept as proof of identity and employment authorization. The interim final rule also prohibits employers from accepting expired documents as List A, B, or C documents and eliminates some documents from List A.

Employers must begin using a revised Form I-9 on February 2, 2009. USCIS will post the revised Form I-9 on its website before the effective date of the rule. Employers should use the current Form I-9 (the version dated June 5, 2007) until February 2.

For more information on the revised I-9 form, including the revised list of acceptable documents, read Barnes & Thornburg LLP's Labor Alert on this issue. If you need help developing policies and procedures that promote compliance, e-mail info@FlashPointHR.com or call 317.229.3035.

Continuing Education Workshops in Indianapolis

Looking for cost-effective training opportunities for yourself or your employees? FlashPoint facilitates noncredit courses through the IUPUI Community Learning Network. For more information on the following workshops or to register, visit www.cln.iupui.edu.

• Pump Up Your Communication!, February 13
• Leadership in a Multigenerational Workplace, March 20

Workplace Learning Professionals Share Ideas at FlashPoint's Knowledge Forum

In early January, FlashPoint hosted a knowledge forum, bringing together workplace learning professionals from our clients American Health Network, Midwest ISO, Roche Diagnostics, and Teachers Credit Union. During the three-hour forum, participants shared what's working well in their organizations, reviewed trends impacting learning in the next three to five years, and discussed strategic insights that will help them take their learning functions to a higher level.

The group brainstormed and shared ideas and activities that have contributed to their success as workplace learning professionals. Key suggestions included:

• Brand the learning and development function and programs, making sure they have a consistent look and feel. Create a campaign to generate enthusiasm for learning across the organization and to promote buy-in.
• Brand learning as a solution; change the language from "class" or "course" to "development" or "learning opportunity."
• Put up whiteboards for employees to add their ideas for learning and development; give employees ownership in helping to build the program.
• Identify a "team of evangelists" to champion the learning program within the organization.
• Explore outside funding from government grants.
• Approach learning and development as an ongoing process--move away from viewing it as an event--and ensure that managers follow up with participants.

Participants also identified two main challenges and potential solutions.

Challenge 1--Building Relationships with HR Partners

Possible Solutions:

• Initiate informal meetings or lunches to build relationships and gain trust.
• Get to know the partners' personalities and what is important to them.
• Ask the partners questions (e.g., "What keeps you up at night?") to learn more about them.

Challenge 2--Building a Learning Culture

Possible Solutions:

• Communicate across the organization.
• Identify gaps between executives and employees and build communications to bridge them.

Throughout the year FlashPoint will continue to hold knowledge forums with leaders in the field of human resources, workplace learning, and organizational development. We will share some of their suggestions in future issues of eFlash.

Congratulations and Celebrations

FlashPoint is pleased to announce that two national publications recently recognized Barnes & Thornburg LLP, the Indianapolis law firm with whom we're affiliated, for its work over the past year. Online legal news source Law360 ranked Barnes & Thornburg as one of the top twenty law firms nationwide in a variety of categories related to labor and employment law, while Workforce Management included the firm in its "Hot List" of the top employment law firms in the country for the second consecutive year.

Teachers Credit Union (TCU), a FlashPoint client, recently received several awards:

• The Credit Union National Association presented TCU with a first-place award for eLearning (in recognition of TCU's efforts to incorporate technology-based training into its learning programs) and a WOW! merit award (for developing an overall training curriculum or event that energizes, empowers, and excites participants).
• The International Society for Performance Improvement recognized TCU with an Outstanding Human Performance Intervention Award for successfully applying technology to address human performance problems, needs, or opportunities.
• The American Society for Training and Development honored TCU with a Champion of Learning Award for TCU's work in celebrating Employee Learning Week.

Finally, FlashPoint congratulates our business development manager, Jeremy King, who recently became certified as a Senior Professional in Human Resources (SPHR). The SPHR certification is one of the highest accomplishments in the HR profession, and we're proud to have another staff member achieve SPHR status!

Indiana Chamber HR Workshops

FlashPoint sponsors the Indiana Chamber's 2009 HR Training Series. Information about the following workshops is available at 800.824.6885 or www.indianachamber.com.

• Supervising and Managing People, February 5-6
• Workforce Restructuring, March 5
• Employment Law Seminar, March 19