Q1: How did your career as an attorney begin?
I attended law school at The Ohio State University and graduated in 1996. During law school, I had the opportunity to work for Warner Norcross as a summer law clerk. After I graduated, I clerked for the Honorable Alan E. Norris of the Sixth Circuit U.S. Court of Appeals. I became very interested in litigation, especially employment litigation, after working at the Court.
Q2: What is your area of specialty?
I specialize in labor and employment litigation. I find the issues (and often the people) that I deal with in these matters fascinating. And I thoroughly enjoy the planning process that goes into preparing to present an employer’s case to a judge or jury.
Q3: What is a hot topic for employers right now?
Right now, organizations are competing for talent in the marketplace. That has created an increased focus on covenants not to compete.
Q4: What is a covenant not to compete?
It’s an employment contract (or part of a contract) in which the employee agrees that for a certain period of time, they will not engage in competitive activities after their employment with the employer ends.
Q5: How is a covenant not to compete (also known as a non-compete) different than a non-solicitation agreement?
A traditional non-compete agreement will restrict the employee from working for a competitor during a set period of time after employment with the employer ends. A non-solicitation agreement will not restrict an individual’s ability to work in the industry, but will prevent them from seeking to do business with their former employer’s customers. Some non-solicitation agreements also bar the individual from soliciting their former co-workers to leave the employer and join them somewhere else.
Q6: Do courts generally enforce these kinds of agreements?
Yes, if they are reasonable. The geographic scope of the restriction has to align with the scope of the employer’s business, and the time period for the restrictions must also be reasonable.
Q7: In Michigan, what are some of the factors courts take into account when considering whether to enforce a non-compete or a non-solicitation agreement?
The agreement has to protect some legitimate competitive business interest, typically customer relationships or trade secrets. If the employer seeks an injunction—a court order to stop the individual from working for a competitor—they must show that the injunction is the only way to avoid irreparable harm to them. Typically, if the issue could be remedied later simply by awarding monetary damages to the employer, an injunction will not be issued.
Q8: What should employers consider if they are preparing a non-compete or non-solicitation agreement?
Consider who should be signing your non-compete or non-solicitation agree-ments and the right type of agreement: non-compete, non-solicitation, confidentiality or non-disclosure agreements. Determine which agreement best suits which positions within your organization. And, make sure to structure the agreements so that you protect yourself while successfully recruiting talent.
Q9: What about the employer who is thinking about hiring a competitor’s employee? What should that employer consider?
Have an experienced attorney review the agreement in advance of the hire to make sure that employment with your company won’t violate it. You don’t want to invest your time and resources into bringing a new employee onboard, only to find that she can’t actually work for you, or that the hire has resulted in a lawsuit (against your new employee, or even against your company).