Monday, September 24, 2018

Second Woman Emerges and Accuses Supreme Court Nominee Brett Kavanaugh of Lewd Sexual Misconduct at College Party


Yale Graduate Deborah Ramirez Accuses Supreme Court Nominee Brett Kavanaugh of Sexually Inappropriate Behavior at College Party 


Ronan Farrow, a Pulitzer Prize-winning journalist published an article in the September 23 edition of The New Yorker which states in part:

The woman at the center of the story, Deborah Ramirez, who is fifty-three, attended Yale with Kavanaugh, where she studied sociology and psychology. Later, she spent years working for an organization that supports victims of domestic violence. The New Yorker contacted Ramirez after learning of her possible involvement in an incident involving Kavanaugh. The allegation was conveyed to Democratic senators by a civil-rights lawyer. For Ramirez, the sudden attention has been unwelcome, and prompted difficult choices. She was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident. In her initial conversations with The New Yorker, she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away. Ramirez is now calling for the F.B.I. to investigate Kavanaugh’s role in the incident. “I would think an F.B.I. investigation would be warranted,” she said.


In a statement, Kavanaugh wrote, “This alleged event from 35 years ago did not happen. The people who knew me then know that this did not happen, and have said so. This is a smear, plain and simple. I look forward to testifying on Thursday about the truth, and defending my good name—and the reputation for character and integrity I have spent a lifetime building—against these last-minute allegations.”




A classmate of Ramirez's who was not at the party and who declined to be identified, told the magazine that he is "one hundred per cent sure" that either on the night of the party or in the next day or two he was told Kavanaugh was the student who exposed himself to Ramirez.








Pennsylvania Unemployment Lawyer - Willful Misconduct Referee Hearings

Do I Need an Attorney for my Philadelphia Unemployment Referee Hearing?



What is Willful Misconduct Under Pennsylvania's Unemployment Law?

"Willful misconduct" is a term of art generically used to describe any one of hundreds of different conduct, such as theft, insubordination, excessive latenesses or absences, coming to work intoxicated, refusing a drug test, fighting or cursing with a co-worker, falsification of work records, etc.

Referees Do Nothing but Conduct Hearings All Day Long
They Follow the Rules of Evidence
What Happens at a Willful Misconduct Unemployment Referee Hearing?

In a willful misconduct hearing, the employer has the burden of proving that the employee engaged in misconduct for which he/she was fired.  There is A LOT that goes into that!  Basically, though, the employer must prove through competent evidence that the employee engaged in misconduct, and that misconduct was the reason the employee was fired. 
Timely Objections Essential
What is Hearsay at an Unemployment Hearing?

Simply stated, for our purposes here, hearsay is any oral or written statement made by anyone who is not in the room.  So, if there is a written statement in the file from Mother Teresa saying you stole money, and Mother Teresa is not in the room, it is hearsay.  If the employer's witness says that Gandi told her he say you drinking at work, and Gandi is not in the room, it is hearsay.

You need to object to hearsay in a timely fashion or else any such objection will be deemed waived.

What Should I Say at a Pennsylvania Unemployment Hearing?

If you can stop the employer from meeting its burden (often through timely hearsay objections), than you may not need to say much at all (other than a basic denial of having engaged in the acts for which you are accused).  That said, many laypersons understandably do not understand "burdens of proof," and inadvertently place themselves at the scene of the crime unwittingly, and end of losing a case they should have won.

Don't Confess by Mistake!
Should I Hire an Attorney for My King of Prussia Unemployment Hearing?

That is why retaining an attorney for an unemployment hearing before a Referee is smart; these are legal proceedings conducted in accordance with the laws of evidence, and are tricky to navigate - particularly when your opponent has been to many such hearings, and is being guided by savvy lawyers and HR personnel.

Representing Workers In Pennsylvania Since 1991

Philadelphia Area Unemployment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Unemployment Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an unemployment lawyer, and live in Wayne, King of Prussia, Newtown Square, Broomall, Northeast Philadelphia, Downingtown, West Chester, Skippack, Bala Cynwyd, Lower Gwynedd, Media, Norristown, East Norriton, Bluebell, Plymouth Meeting, Nether Providence, Springfield, Bristol, Lansdale, Exton, Malvern or Paoli, or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer for an Unemployment Hearing Before a Referee In Malvern, King of Prussia, Springfield, Bristol, Reading, Lancaster or Philadelphia?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of Referee Hearings throughout Pennsylvania.

Thanks for checking in with us.

Offered an Employment Contract With a Non-Compete in Pennsylvania?

If You Have Been Offered an Employment Agreement Containing a Non-Compete Clause in Pennsylvania, Here are Some Important Things to Bear in Mind

You are excited because you have been offered a new job.  However, there is a caveat.  As a condition of employment, you are being "asked" to sign an employment contract that contains confidentiality, non-competition and non-solicitation clauses ("restrictive covenants").  You want the job, but you are wondering...suppose things don't work out through no fault of my own?



Is My Non-Compete Enforceable If I am Laid Off or Part of a Reduction in Force or Terminated for Alleged Poor Performance?

In Pennsylvania, employees who are laid off or terminated due to alleged poor performance are deemed "worthless employees," and are therefore freed from the restrictions of a non-compete clause (confidentiality and non-solicitation clauses are a different matter). However, just because there are legal decisions that state that principle does not mean that the non-compete clause "evaporates."  It still exists, and a potential new employer may still decide against hiring you because, after all, there are other candidates unbound by such a restriction, enforceable or not.

Non-Competes Are
Generally Enforceable in Pennsylvania
Is a Non-Solicitation Agreement Overbroad if it Limits my Right to Contact Customers With Whom I had no Contact?

It is also notable that the trend is to enforce non-solicitation clauses prohibiting employees from "soliciting" customers of their former employer only if the employee has had actual contact with such customers.  This is important if, for example, you work for a company that has thousands of customers, but your contact is limited to only one or two. 

Non-Competes Can Make Finding a New Job Difficult
Again, the problem here is that, whether your non-solicitation is overbroad or not, it still exists! A potential new employer may not want to take a chance on someone with such an agreement.

Even if Unenforceable, Still an Impediment to a New Job
Can I Go to Court to Get Out of a Non-Compete Agreement?

Unless one can negotiate out of a non-compete, there is nowhere to go except to a court.  But, lawsuits take time...If you need to secure employment immediately, waiting 1 year or more to win a verdict saying your non-compete is not enforceable is not too palatable.

Can I Seek an Injunction if I Have an Invalid, Overbroad or Unenforceable Non-Competition Agreement?

If a company wants to stop its former employer from violating a non-compete, it can seek a preliminary injunction, and get get one within a month is circumstances warrant. Obtaining such immediate relief is not always so simple for an employee seeking a declaration that his/her non-compete is not enforceable.  You need to have an agreement with the employer to do so.

How Can I Negotiate the Terms of a Non-Compete Agreement?

Employers are often unwilling to negotiate the language of restrictive covenants unless they feel that the employee is "worth it."  After all, their lawyers have spent years perfecting such clauses, and there is always another candidate for the position of you give them a hard time.




However, there are approaches that can minimize the sting of a non-compete - although negotiating them on your own is often difficult. Here are four things you can seek:

     1) a clause saying that is you are laid off, the non-compete is void;

     2) a clause saying that unless you quit or are fired for anything other than willful misconduct, the           employer will deem the clause void;

     3) a clause saying that the non-solicit will apply only to customers/clients with whom you had                 actual contact during your employment; and,

      4) a clause saying you can seek an injunction if you need to following the end of your                              employment.

Negotiating such clauses will not be easy, and getting just the right legal language harder still.  That is why seeking counsel to negotiate a non-compete is usually a wise idea.

Representing Pennsylvania's Workforce Since 1991

                               Pennsylvania Non-Compete Lawyer 

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Southeastern Pennsylvania.

Philadelphia-Area Non-Compete Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for a lawyer who is experienced in Pennsylvania non-compete law, and live in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer for an Unemployment Hearing Before a Referee In Malvern, King of Prussia, Springfield, Bristol, Reading, Lancaster or Philadelphia?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of Referee Hearings throughout Pennsylvania.

Thanks for checking in with us.

Saturday, September 22, 2018

How to Respond to Cease and Desist Letters Concerning Non-Compete Agreements

Philadelphia Non-Compete Attorney
Questions?  John will spend 5-10 minutes with you discussing your current work situation, your disability/FMLA leave, your non-compete agreement, your wage claim, your unemployment claim or your potential lawsuit at no charge to you.  Call 610-647-5027.  John is usually available 24/7.

e-Mail me at: jag@johnagallagher.com

Employment Agreements Often Contain Confidentiality, Non-Compete and Non-Solicit Covenants
Although Generally Disfavored in Pennsylvania, Courts Will Enforce Them in Many Circumstances
What Should I do If I Receive a Cease and Desist Letter About a Non-Compete Agreement in Pennsylvania?

If you have recently left a job and have a non-compete agreement, you may receive a cease and desist letter from your former employer or their lawyers.



We have written extensively on the the "do's and dont's" where non-competes are concerned, and as has been emphasized, the number one thing that will "get you in trouble" is doing business with customers/clients of your former employer in your new endeavor. If you have done that, or plan on doing so, and you receive a cease and desist letter, it would be a good idea to contact an attorney right away.  Simply stated, few (if any) companies will allow their former employees to take customers with them to a new endeavor without a fight.

The Number One Thing to Avoid -
Doing Business With Your Former Employer's Customers
How Do I Respond When I Get a Cease and Desist Letter Accusing Me of Breaching a Confidentiality Agreement in Pennsylvania?

If, on the other hand, you do not plan on accepting business from former clients/customers (and "accept" is the right word - you are not free from claims of unlawful solicitation just because the customer reaches out to you first), then the metric changes.

Here are some important questions to ask yourself in such a scenario:

·       Did I collect my former employer’s confidential information before I left by making copies of it, putting it on a thumb drive or sending it to myself via e-Mail?

·       Do I plan on using any of my former employer’s business forms, client contacts, contract information, pricing schedules, etc. in my new endeavor?

·       Do I know truly confidential information (sensitive engineering processes, IT information, recipes, etc.) that would give me a competitive advantage over my former employer if used in my new enterprise?

·       Do I know truly confidential information (sensitive engineering processes, IT information, recipes, etc.) that would undermine my former employer’s good will or  competitive advantage if used in my new job?

·       Does my former employer have a documented history of aggressively pursuing former employees who take new employment that is competitive?

If the answer to one or more of these questions is in the affirmative, you should consider seeking counsel at once.

Simply Ignoring a Cease and Desist Often Unwise...
I Received a Cease and Desist Letter Attorneys for my Former Employer

There are some other key factors to consider if you receive a cease and desist letter concerning an employment agreement you signed containing restrictive covenants regarding confidentiality, non-competition and non-solicitation.  For example:

·       Employees that quit jobs are more likely to be sued than employees who were laid off or let go for alleged poor performance.

·       Employees who are fired under a “black cloud” (dramatic insubordination, suspected of misappropriating information or of planning to start a competitive business/join a competitive business) are more likely to be sued.

·       The higher your rank with your former employer, the greater peril you may face if you take a job with a competitor.


·       If you claimed you were not going to be working for a competitor when you left, and then you went to work for a competitor, you are more likely to get sued.

·       If you had substantial involvement with clients/customers, you are more likely to get sued than if you worked in the stockroom shelving boxes.

Basically, any behavior that is construed as avaricious, devious, untruthful or suspicious dramatically increases the stakes in any dispute between you and your former employer (even if you actions are being misconstrued).  Further, simply ignoring a cease and desist can turn a potential adversary into a rabid adversary.  People do not like to be ignored!



In addition, the greater the risk of losing business (i.e. clients/customers) the stronger the reaction from your former employer.  Companies get very posessive about their client base....

Should I get a Lawyer to Help Me Answer a Cease and Desist Letter in Pennsylvania?

Non-Compete Litigation can be Expensive
and is to be Avoided at all Cost!
There are in my view three potential responses to a cease and desist, each being dependent upon the above factors (and others).  They are:
you actions are being misconstrued).

         1)    ignore the letter;

         2)    respond to the letter directly; or,

         3)    have an attorney respond to the letter on your behalf.

The stakes are high because, when an individual gets sued, he/she has already lost (even if they win the lawsuit).  They may be enjoined from doing what they are doing by a court (and thus be out of work) and/or may have to be party to a suit that can last years.  And, no matter the outcome, lawyer fees can sting!

Consequently, it is probably always a good idea to contact counsel if you receive a cease and desist.  These issues can often be sorted out - misconceptions can be cured, and legitimate problems negotiated where appropriate.

Representing Pennsylvania's Workforce Since 1991
Philadelphia Area Non-Compete Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Montgomery County, Bucks County, Lancaster County, Berks County and Montgomery County.

Pennsylvania Cease and Desist Non-Solicitation Attorney Provides Free Telephone Consultations (up to 15 Minutes in Duration)

If you are looking for an employment lawyer who practices in the area of non-compete law, and live in Malvern, Paoli, Downingtown, Bryn Mawr, Newtowq Square, Northeast Philadelphia, Center City, King of Prussia, Glenside, Doylestown, Radnor, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Media, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer Who is Experienced in Handling Non-Compete Disputes in Pennsylvania?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of non-compete disputes throughout southeastern Pennsylvania.

Thanks for checking in with us.

Monday, May 7, 2018

WALMART AND SAM'S CLUB TO LIMIT INITIAL OPIOID PRESCRIPTIONS TO 7-DAYS

Two-Thumbs WAY Up
Seven Day Limit on Opioid Prescriptions Imposed by Walmart and Sam's Club Good for Humanity

Per USA Today on May 7, 2018:

Taking another step to battle the nation's opioid crisis, Walmart and Sam's Club pharmacies will provide no more than a seven day supply of the medications to some customers.
The retailers said Monday that within the next sixty days, they will begin imposing the time limit on initial opioid prescriptions for acute pain, along with a mandate that the medications top out at 50 morphine milligrams per day...
“We are taking action in the fight against the nation’s opioid epidemic,” MarybethHays, executive vice president of Health & Wellness and Consumables for Walmart U.S. said in a statement. “We are proud to implement these policies and initiatives as we work to create solutions that address this critical issue facing the patients and communities we serve.”


Representing Pennsylvania's Workforce Since 1991
Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, non-compete agreements, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.

Friday, April 13, 2018

Non-Compete Agreements and Trade Secret Litigation - The Fulcrum is Whether the Legitimate Business Interests of the Former Employer Are Detrimentally Affected by an Employee's Violation

See John's Video on how to negotiate a non-compete:



What Are the Legitimate Business Interests of a Company That Seeks to Enforce a Non-Compete Agreement?

I have on numerous occasions blogged about the enforceability of non-compete agreements, noting that the heart and soul of a non-compete dispute is whether the legitimate business interests of the former employer are adversely affected by the former employee's breach of either the confidentiality, non-competition and/or non-solicitation covenants found within the employee's contract.

Protect Legitimate Business Interest Only
What are an employer's "legitimate business interests" in this context?

What Does it Mean to Misappropriate Your Employer's Confidential Information?

1) if you misappropriate your former employer's confidential information and use it in an overt fashion (i.e. copy exact wording from a business form and use it to promote another business) or in an attempt to solicit its customers (take a customer list with contact information and use it), you have adversely affected your former employer's legitimate interests;
Not a Good Look....
What is Inevitable Disclosure in a Trade Secret or Non-Competition Case?

2) if you are (one of the few) people who has knowledge of your former employer's "trade secrets," that is a formula, recipe, patentable invention that is kept under lock and key so that only a few people in the world know of its existence, you will likely be stopped from going to work for your former employer's close rivals.

Those Crinkles ARE a Trade Secrete!
Years ago, a vice-president of Thomas English Muffins , one of only a handful of people who knew the recipe used by Thomas to put the crinkles in its english muffins, departed to take employment with Hostess.  Concluding that it was "inevitable" that the the executive  would eventually disclose the recipe to his new employer, the court issued an injunction prohibiting Thomas' former executive from taking the job.

Solicitation of Former Customers is Always Forbidden if You Have a Non-Solicitation Agreement

Typically, employment agreements contain 3 restrictive covenants: 1) Confidentiality; 2) Non-Competition; and, 3) Non-Solicitation.  In general employees are not sued under the first two in the absence of the hypothetical situations outline above.

It's All About the Benjamins
Not true where non-solicitation covenants are concerned. Such provisions, which most critically prohibit a former employee from soliciting customers whom he/she dealt with while employed, most directly implicate a company's legitimate business interests.  That is so because the potential or actual loss of a customer implicates the potential or actual loss of income - and that implicates a company's legitimate business interest!

2018 New York Court Decision Explains and Protects an Employer's Legitimate Business Interests in Non-Compete Lawsuit

In Hoffman, D.O., P.C. v. Raftpol, a New York Supreme Court (i.e. trial level) judge considered a request for preliminary injunction filed by a physician assistant who, having taken a new job within the 15-mile radius prohibited by the non-compete covenant.was in violation of same.  Insofar as there was no evidence that the breaching former employee had solicited patients from her former employer, the court "blue penciled" the agreement, choosing to limit only the former employee's right to solicit patients of her former employer for the length of the 2-year non-compete.  The court found that such limitation was the only one required to protect the former employer's legitimate business interests.

The decision in Hoffman is a perfect example of how prudent court will protect the legitimate business interests of the former employer in the absence of any nefarious conduct on the part of a former employee.

Handling Non-Compete Disputes Since 1991
Philadelphia-Area Non-Compete Attorney

Questions?  John will spend 5-10 minutes with you discussing your current work situation, a U5 claim, your disability/FMLA leave, your employment/non-compete contract, a separation agreement, your wage or overtime claim, your unemployment appeal or your potential lawsuit at no charge to you.  Call 610-647-5027.  John is usually available 24/7.

You may also Click Here to e-mail John directly.




Monday, April 9, 2018

THE ESSENTIAL’S OF AN EMPLOYMENT AGREEMENT CONTAINING VALID, ENFORCEABLE CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION CLAUSES IN PENNSYLVANIA


Experienced Pennsylvania Employment Law Attorney Who Provides Enforceable Non-Compete Agreements for a Reasonable Flat Fee

John A. Gallagher, Esquire
Creating, Negotiating and Litigating Restrictive Covenants in Pennsylvania Since 1991

When I started practicing law in 1991, employment agreements that contain what are known as restrictive covenants, that is confidentiality, non-solicitation and non-competition clauses, were somewhat rare. Now, they are everywhere.


Over the years, the courts have made some basic and essential rulings that govern construction of restrictive covenants, and it is fairly easy to determine the circumstances under which such clauses will be enforceable.


Is the Goal to Attract and Retain High Quality Individuals?
Currently, it remains relatively easy to attract qualified candidates for employment even where requiring the candidate to sign an employment agreement containing restrictive covenants is the rule. However, I have noticed a trend over recent years where highly-qualified candidates are pushing back and refusing to accept a job if they are required to sign contracts that greatly limit their future vocational mobility. In many cases, a reciprocal severance package will be required (i.e. “I will agree not to compete for 6-months if you agree to pay me 6-months severance if you fire me without cause”).

What is the Best Method to Make Sure New Employees Agree to Non-Compete Agreements

One way that employers attempt to get around this is by not informing the employee of the existence of the requirement that they execute an employment agreement containing restrictive covenants until after they are very been onboarded. Another approach is to include restrictive covenants within an employee handbook, and to have the employee sign off on the handbook during orientation.


How Do You Want to Start New Relationship?
While these methods may enable an employer to successfully bind a new employee to the said restrictive covenants, is that really the way you want to start off your employment relationship?

There is a better way, and it will improve your candidate pool, and your workforce.

Are Confidentiality, Non-Compete and Non-Solicitation Clauses Valid and Enforceable in Pennsylvania?

I drafted restrictive covenants to be placed within employment agreements on behalf of employers for 15 years. When doing so, I always took into account the following rules that generally exists in Pennsylvania (and throughout much of the United States):


TRUE Trade Secrets Are Rare Under Pennsylvania Law
1) courts will always enforce confidentiality agreements if they find that the employee has taken the former employer’s documents and information with them upon departure from employment, and has used that confidential information in an overt fashion in their new endeavor.


Courts Will Not Tolerate Workers Who Misappropriate Their Former Employer's
Materials and Information in a New Business Endeavor, Whether a Trade Secret or Not
2) unless the employee has engaged in such nefarious conduct where confidential information is concerned, the courts consider very little employer information to be actually confidential. For example, and generally speaking, customer names, addresses, employer pricing, etc. are not deemed confidential under Pennsylvania law because they are generally available to the public at large upon research via the phone book, Google etc.


3) the only exception to the above confidentiality rule is where the departing employee truly possesses trade secretes. Think the Coca-Cola formula, or how Thomas puts those crinkles in their English muffins (indeed, one former Thomas's executive was enjoined from taking a job with Hostess because he knew the recipe and the court figured that he would inevitably disclose it to his new employer!). Courts will generally prohibit an employee who had signed a noncompete agreement and possesses such sensitive information from going to work for a close competitor of his/her former employer – even if there is no evidence that the employee has disclosed such trade secrets to the new employer. The theory behind the court’s thinking is that there will be “inevitable disclosure” of the trade secrets. After all, why would a close competitor seek to hire such a (presumably highly compensated) employee if not to take advantage of the knowledge that the employee has?
Now THAT'S a Trade Secret!!!
4) where non-competition clauses are concerned, the court similarly will not enforce them unless there is some evidence that the employee has engaged in nefarious conduct. For example, if an employee solicits former customers of his or her former employer while working for the new employer, the non-compete will almost certainly be enforced. Or, if the employee should use confidential information overtly while working for the new employer, there is a good chance the non-compete will be enforced as well. Where, however, there is no evidence that the employee has special knowledge, or is done anything wrong, courts will not generally require (i.e. order) an employee to quit a new job working for a competitor merely because they executed a non-competition agreement.


You Were Paid to Get to Know Your Former Employer's Clients and Customer Base -
Soliciting Them After You Leave is a BAD Idea and Courts Will Not Allow That
5) non-solicitation clauses are at the heart and soul of what is enforceable in Pennsylvania and elsewhere where restricting employee’s rights to future employment are concerned. An employee bound by a non-solicit who departs one employer, whether via termination or resignation, and then goes to work for a new company, or even start a new company, and thereafter solicits clients/customers the employee serviced while employed with the former employer, will be enjoined from continuing such conduct by most Pennsylvania courts.

Cost-Effective Employment Agreements Containing Confidentiality, Non-Competition and Non-Solicitation Provisions Prepared by a Qualified Pennsylvania Employment Lawyer

Based upon the above principles, I sometimes would not even include non-compete provisions within employment agreements. Why limit the potential pool of candidates by requiring the execution of a non-compete agreement when the employer’s true, legitimate business interests can be preserved by will appropriate confidentiality and non-solicitation clauses?

Preparing an employment agreement that at once protects the interest of the employer but at the same time does not seem overbearing and overly restrictive from the employee’s perspective is key to attracting qualified employment candidates. The preparation of such agreements can be done in a cost-effective, low cost fashion by a qualified employment lawyer who has prepared, negotiated and/or litigated hundreds of such agreements in the past.

Cost-Effective - Experienced -
Sensible
Philadelphia Area Non-Compete Employment Attorney Who Prepares and Negotiates Employment Contracts



John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John handles employment-related matters of all kinds originating in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania  Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of Referee Hearings throughout Pennsylvania.

Thanks for checking in with us.

Tuesday, April 3, 2018

WHAT IS A JOINT VENTURE and WHAT SHOULD BE THE TERMS IN A JOINT VENTURE AGREEMENT?


Joint Venture Agreements Require
Astute Foresight and Plain language
Legal Definition of a Joint Venture

The American Bar Association’s “Model Checklist for Joint Ventures” describes a joint venture as “a commercial collaboration in which two or more unrelated parties pool, exchange, or integrate some of their resources with a view to mutual gain, while at the same time remaining independent.”

What Are the Different Kinds of Joint Ventures?



This Post concerns joint ventures between two smaller business enterprises, often closely held corporations, unincorporated sole proprietors and/or independent contractors (incorporated or unincorporated).  The three most common scenarios for such joint ventures are as follows:

1)  Both of the participants are created for the sole purpose of participating in the joint venture, and do not conduct operations independent of the joint venture.

Example:    Joe is employed as painter/carpenter and Sally is employed as an interior designer. They decide to start a home remodeling business, “Home Designs, Inc.” They then quit their jobs, act as joint incorporators and officers of Home Design Inc., create a website and enter into a lease for office space.  They then dedicate all of their time and resources to making HDI a success.

     2)  One of the participants is created solely to participate in the joint venture and has no operations independent thereof while the other is an existing business with operations independent of the joint venture.

Example:    Joe is employed as chef and Sally operates a restaurant, Sally’s Place. Joe wants to “be his own man” but lacks knowledge as to how to operate a restaurant, and Sally wants to start a new restaurant but lacks sufficient funds.  Joe quits his job and creates a corporation, “Joe’s Eats Company.” They then pool their resources and start “New Bistro Americano.”  They act as joint incorporators and officers of “SallyJoe, Inc.,” create a website, enter into a lease, create a bank account with point of sale technology and open up NBA.  Although Joe dedicates all of his time to NBA, Sally continues to operate Sally’s Place, and spends about 20 hours a week at NBA.       

     3)  Both participants have been in existence for some time prior to the creation of the joint venture and may or may not maintain separate operations subsequent to its creation.

Joe operates a small company with a few employees known as “Joe’s Painting,” which provides painting/carpentry services. Sally operates an unincorporated sole proprietorship, “Sally’s Designs,” which provides interior designing services. They decide to start a home remodeling business, “Home Designs, Inc.” They act as joint incorporators and officers of Home Design Inc., create a website and enter into a lease for office space.  Although they then dedicate a lot of their time and resources to making HDI a success, they both continue to operate their primary, preexisting businesses.


Here are some of the issues that must be addressed in such an agreement:

      What is the scope and purpose of the joint venture?

     *  What corporate form (i.e. LLC, PC, etc.) will the venture establish?

     *  How much in the way of capital contributions, that is cash, equipment and/or     inventory, will each respective party be contributing to the joint venture at its outset?

     *  To the extent that purchasing additional operating capital, equipment and/or inventory are required, who will be responsible for paying what proportionate share of same?


Gotta Figure Out Capital Investments
 - and Capital Interests!
 *  Who will be responsible for managing and overseeing the day-to-day operations of the enterprise?

 *  Who if will be responsible for managing the sales and marketing aspect of the enterprise

     *   Who will be responsible for staffing the joint venture if necessary?

 *  Who will be responsible for maintaining the joint venture’s books and records?

     *  Who will be responsible for creating and maintaining the bank accounts of the joint venture?

*  How will the party that is not in control of managing the financial records and accounts of the venture be provided full access to such information upon request?

     *  Does either party have the right to buy the other party’s interest out of the joint venture?

     *  How will profits be allocated between the members of the joint venture?

     *  What will happen to the interest of a member who becomes disabled or dies?

     *  What will happen if one of the members was to give up their interest in the joint venture?
Failing to Contemplate Potential Divorce Unwise
  *  What will happen if one of the members wants to force the other member to give up their interest in the venture?

 *  What will happen if one member feels of the other one is breaching its obligations under the joint venture agreement and/or engaging in malfeasance?

     *  If the joint venture has an expected termination date, how will the assets of the venture be allocated upon liquidation?


Helping Pennsylvania Businesses Since 1991
Pennsylvania Joint Venture Contract Lawyer

The above list, which is in no particular order, was prepared off of the top of my head. If an attorney you are considering to represent you to prepare such an agreement cannot recite at least the above list of the top of his/her head, you may not have the right attorney.

Though the parties to any joint venture certainly want to enter into the relationship with a high degree of trust in one another, is foolhardy to not prepare the possibility of conflict, including a possible business divorce.


Partners....for Life?
When selecting counsel to prepare a joint venture agreement, there are always two good options: 1) each party secures its own counsel; or 2) the parties together secure one independent and wholly neutral counsel to author the joint venture agreement. That lawyer should be able to represent both sides without conflict of interest. This is often possible, but not always.

Common sense and foresight are the key characteristics of any attorney you would want to retain to prepare a joint venture agreement. Cost effective representation is important as well. Your attorney should not need to conduct a vast amount of research to prepare such an agreement and, in fact, ordinarily should not charge you for more than several hours or so of time at a maximum to complete a solid draft of same.


Experienced Philadelphia-Area Joint Venture Agreement Attorney Providing Flat Fee Business Contracts at Reasonable Cost


Why Pay More? Reasonable Flat Fees
for all Pennsylvania Business Contracts
John A. Gallagher has been practicing business and employment law in the Commonwealth of Pennsylvania since 1991. He has prepared, reviewed, and negotiated hundreds of contracts – and has litigated hundreds of contractual breaches.

Mr. Gallagher applies a flat fee billing approach to all matters involving business contracts, believing that providing cost certainty is essential.

Further, Mr. Gallagher as a believer in developing business relationships, versus securing extraordinary fees – hence in establishing his billing rates his eye is on developing a long-term relationship rather than a one-night stand!

If you have a question about a business contract, call John today and he will spend 15 minutes of time discussing things with you at no charge.  From there, we can establish our own contractual relationship if appropriate.

You may also Click Here to e-mail John directly.


Philadelphia-Area Contingent Fee Attorney

Questions?  If you are in PhiladelphiaChester County, Montgomery County, Delaware County or Bucks County and need assistance with the preparation of a business contract, call 610-647-5027 for a FREE consultation.  John is usually available 24/7.