Amidst a wave of non-compete bans sweeping California, North Dakota, Oklahoma, Minnesota and, most recently, the nation via the Federal Trade Commission’s non-compete prohibition, Maine Governor Janet Mills departed from this growing trend and vetoed L.D. 1496, An Act To Prohibit Noncompete Clauses (“L.D. 1496”) in April 2024. If enacted, the L.D. 1496 would have effectively foreclosed employers from entering into non-compete clauses with employees in Maine.
L.D. 1496 permitted non-competition covenants only in three specific nonemployment-related situations, subject to certain conditions: (i) the sale of a business prohibiting the seller from opening a competing business in the same geographic area as the sold business; (ii) a shareholder in a limited liability company who sells or disposes all of the shareholders shares; or (iii) member of a partnership if the partnership is dissolved. L.D. 1496 also banned non-compete agreements between out-of-state employers and Maine residents.
In vetoing the bill, Governor Mills looked to both the past and future of non-competes. Historically, she explained L.D. 733, An Act to Promote Keeping Workers in Maine. P.L. 2019, Ch. 513 (“L.D. 733”), enacted in 2019, already places significant limitations on employers’ use of non-compete agreements. Among other things, L.D. 733 bans employers’ use of non-competes with low-income workers whom non-competes most adversely impact. Further, and significantly, if an employer requires a non-compete as part of employment, L.D. 733 requires an employer to disclose that requirement in any job advertisement. Given L.D. 733’s protections, Governor Mills concluded there was “no evidence that the recently enacted statute [wa]s inadequate,” nor was there evidence employers abused non-compete agreements in Maine.
L.D. 1496 was poised to heighten L.D. 733’s protections, even in circumstances where employers sought to use non-competes as a means to protect their confidential information from disclosure to commercial competitors. In explaining L.D. 1496’s overbreadth, Governor Mills explained how employees are often entrusted with employer trade secrets and know-how, ranging from manufacturing techniques, commercial strategies, to other confidential information integral to the success of a business. Governor Mills drew upon such salient justifications underpinning employers’ use of non-competes as well as employers’ significant investments in employees – monetarily and developmentally. Governor Mills explained: “It would be both unfair and contrary to public policy to prohibit employers from requiring a commitment from their employees not to take what they have learned and immediately put that sensitive information to work for a competitor.”
Prospectively, Governor Mills also naturally considered the FTC’s then-anticipated non-compete ban, reasoning that “enacting new state-level restrictions at this time would be ill-advised.”[1]
Governor Mills’ veto solidifies employer trade secret protections for the time being, keeping intact employers’ ability to bring breach of contract claims, among others, against employees who breach non-compete obligations and/or disseminate employer trade secrets. While Maine employers must remain compliant with L.D. 733’s requirements, they can utilize non-competes – and pursue legal action against breaching employees – to protect their confidential information and trade secrets. Governor Mills’ decision marks a victory for employers in the ever-evolving, and increasingly hostile, non-compete landscape.
FOOTNOTES
[1]See Sheppard Mullin’s blog post discussing the recent Ryan, LLC decision narrowly enjoining the FTC’s non-compete ban.
A white guy refused to take his employer’s mandatory “unconscious bias” training, and he was fired. He sued the employer for retaliation, his lawsuit was dismissed, and this week an appeals court affirmed the dismissal.
The plaintiff knew virtually nothing about the training that he refused to get, the court said, and therefore he had no “objectively reasonable belief” that the training was discriminatory. That knocked out his retaliation claim. He also failed to show that his complaints about the training were the reason his employment was terminated. If his retaliation claim hadn’t already been nixed, this would have done it, too.
It’s no secret that employer diversity initiatives are facing a lot of challenges nowadays, and some of the challenges have been successful. This is especially the case since the U.S. Supreme Court’s decision last summer in Students for Fair Admissions v. Harvard University, which dealt with Title VI (not a typo) of the Civil Rights Act of 1964 and addressed certain types of discrimination against students at colleges that receive federal funds. Although Students for Fair Admissions doesn’t apply to Title VII employment discrimination claims, most employment lawyers expect the same principles to apply in the employment context.
Opponents of DEI generally argue that, by favoring members of certain racial or ethnic groups, DEI initiatives discriminate against members of the “majority” group. That could be white (or white and Asian) people, or it could be males, or straight or “cis” people, or some combination thereof.
The man who said “no”
Now, to our case.
In 2020, a grand jury in Kentucky refused to indict police officers involved in the tragic killing of Breonna Taylor, a Black woman.
Not long after the refusal to indict, the Chief Executive Officer of a division of Honeywell International sent an email to all employees in the division, including our plaintiff, Charles Vavra. The email said, among other things, “Racial bias is real. Don’t kid yourself. Each of us has unconscious bias within us.” He promised to hold listening sessions, and said that the company would ensure that it hired from diverse applicant pools and would offer training for employees. The CEO concluded, “My hands and heart are open to each of our Black, Hispanic, Asian, and LGBTQ colleagues. I stand with you.”
In fairness to the CEO, his email also referred to a Black employee who had given credit to white people for ending slavery and supporting the civil rights movement.
Even so, the email rubbed Mr. Vavra the wrong way.
“THIS EMAIL RUBS ME THE WRONG WAY.”
“Nyet.”
About a month later, the company rolled out mandatory training on unconscious bias. The training consisted of a 20-30 minute video, followed by a short quiz. Mr. Vavra took issue with the training, complaining that it was woke, and stupid, and not something he was interested in. He also complained that the training and the CEO’s email discriminated against white people. So he just didn’t do it. He received several reminders during the training period, but didn’t bite. After the deadline came and went, he received more reminders. Nada.
His direct supervisor and HR gave him more reminders. Nein.
He finally sent a lengthy email to the Human Resources Director and told her that, in his view, the CEO “was ‘making his non-white colleagues all victims and turning his white colleagues . . . into villains.'” (Ellipsis in court’s decision.) He also said that neither the CEO “nor anybody else gets to tell me I have unconscious bias. I AM NOT taking this training because it’s a joke, and I’ll use [the CEO]’s email as proof of it.” (Capitals in original.)
Mr. Vavra’s supervisor met with him again. The supervisor said that he himself had done the training and that he did not perceive it as being anti-white. In fact, the supervisor said, the video contained a scenario in which a white male was the target of unconscious bias. Then, Mr. Vavra’s VP met with him and said that refusal to undergo the training “would be considered insubordination.”
But Mr. Vavra continued to say non, and told his VP that he would accept the consequences of his refusal to undergo the training.
After a meeting with HR, Mr. Vavra’s supervisor met with him one last time, and according to the court’s decision, “pleaded” with him to get the training. Mr. Vavra still said nyet. The supervisor then told him that he would be fired if he didn’t undergo the training. Mr. Vavra said nope. As a result, he was fired.
“HOW MANY WAYS CAN I SAY IT? THE ANSWER IS NO.”
After being fired, Mr. Vavra sued Honeywell under Title VII and the Illinois Human Rights Act, alleging that he was retaliated against for objecting to the employer’s discriminatory actions. At the appropriate time, Honeywell moved for summary judgment, and won. The judge ruling against Mr. Vavra was an Obama appointee. Mr. Vavra then appealed to an all-Trump panel on the U.S. Court of Appeals for the Seventh Circuit.
This time, it was the panel that said NO. The panel agreed with the district court that Mr. Vavra did not have a valid retaliation claim.
First, as I’ve already noted, Mr. Vavra had to have a reasonable basis for believing that his employer had engaged in unlawful conduct. But how could he do that, when he hadn’t viewed the training and didn’t even have any second-hand information about the content of the training (apart from the fact that it included a white male victim)? As the court said, “A belief is not objectively reasonable if it requires rejecting such concrete information in favor of conjecture.”
Among other things, the panel also found that Mr. Vavra was not terminated because of his complaints about the training, but because of his refusal to undergo the training. And it’s generally not against the law for an employer to mandate diversity training.
What employers can learn
This case has four good lessons for employers:
No. 1: Diversity training should acknowledge that members of the “majority” groups can also be discriminated against or treated dismissively. Bias is a two-way street. Apparently, Honeywell’s training was relatively even-handed, and that seems to have helped the company prevail in the courts.
No. 2: Hear out your objecting employees. If you mandate unconscious bias or related training, you are very likely to receive objections from some employees. That’s ok — they have a right to their opinions. Keep an open mind, and be willing to review the program again to ensure that it is not biased against anyone — including the “majority.” (Also listen carefully to employees who have objections based on sincere religious beliefs, and be willing to consider allowing them a different training option as a reasonable accommodation.)
No. 3: Give employees ample time to comply. Mr. Vavra was given about five months to complete the training before he was fired, including one month after the deadline for completion. You may not have to be quite that generous, but be as generous as you can.
No. 4: Politics isn’t everything. In this case, an all-Trump appellate panel agreed with an Obama appointee. What does that teach us? Of course there are exceptions, but the majority of federal judges try to do the right thing in accordance with the law. (Before you throw anything at me, at least give me a chance to duck!)
NOTE: The district court decision has the full text of the CEO’s email and the email from Mr. Vavra to HR, as well as many more details that are not included in the Seventh Circuit decision.
There are three qualities that distinguish great companies from average ones: leadership engagement, employee recruitment and customer satisfaction.
Leadership engagement means the leader is visible and accessible both externally and internally. Some leaders are good at showing up at popular or public events, but they don’t show up when the heat is on. You can bet these leaders are showing for their people internally either. In fact, these leaders often don’t show up and support when things are going well.
Employee recruitment is one of the best qualities you can find in a great organization. The employees talk about how fantastic the organization and leadership as well as the benefits of working there. The organization rarely need to recruit because employees refer their friends and talk about it on social media. Great organizations know how valuable their employees are!
Customer satisfaction is key. If customers are satisfied regardless of outcome, that is a sure sign of a great organization. Customers prefer to be right but they absolutely want to be heard. Customers rarely recommend bad organizations, because their opinion carries weight with their friends.
There are also three great ways to assess a company’s culture before accepting a job:
employee retention
leadership reputation
who is interviewing you
If employee turnover is high, this can signal poor employee support and development. People do not stay where they are not valued. Oh, the job might sound interesting and the pay might be great but ask yourself – why are people leaving?
This might indicate bad leadership or poor reputation. If the leaders are driving for results and setting unsustainable expectations, this will not lead to good development and growth. Some might see it as a gauntlet and that may be but at what cost to you?
Finally, who is interviewing you? This is often where the first red flag appears. If your interview is with Human Resources who nothing about the job you will be doing, walk away …quickly. If the organization does not value a potential employee enough to invest a bit of time by having someone who knows the work interview you and talk with you, that is a good indication that the company will not value you as an employee. This is a significant red flag.
You as an employee have choices and you want to be valuable and add impact – as you should.
Remember, you are interviewing the company as much as they are interviewing you!
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About the Guest Post Author:
Relational leadership and management authority Cheryl L. Mason, J.D. is a TEDx speaker, author and CEO and Chief Catalyst of Catalyst Leadership Management —a firm helping CEOs, senior leaders, companies and teams lead with authenticity and empathy while leveraging strategy, analytics, vision and change management to realize record-breaking results. As the fourth Presidentially-appointed, Senate-confirmed—and the first woman and military spouse—to serve as the CEO /Chairman of the VA Board of Veterans’ Appeals, The Honorable Cheryl L. Mason has a proven track record of leading with an impactful morale-boosting, trust-based, people-centric approach. Mason also authored the acclaimed book “Dare to Relate: Leading with a Fierce Heart” centered on cultivating strong workforce relationships, She can be reached online at www.catalystleadershipmgmt.com
We are no longer publishing new items on this blog. Instead, we now publish videos covering similar issues on Practical Law, see Practical Law Employment, Video and audio.
Dexifier is an innovative decentralized exchange platform focused on providing seamless and efficient crypto trading experiences. We are on the lookout for a passionate and creative individual to lead our marketing efforts and build our vibrant community from the ground up.
Role Overview: We are seeking a talented **Marketing and Community Manager** to drive our online presence and community engagement. If you are driven by results, have a knack for creating engaging content, and excel at fostering a dedicated community, we would love to meet you!
Key Responsibilities:
– Marketing Strategy: – Develop and implement comprehensive marketing plans to grow our audience on platforms including X (formerly Twitter), YouTube, Facebook, and TikTok. – Create and manage advertising campaigns across social media platforms.
– Content Creation: – Produce engaging content including articles, memes, short videos, and other formats to attract and retain followers. – Develop a content calendar to ensure regular and relevant posts.
– Community Engagement: – Build and engage a community on platforms like Zealy and Galxe. – Organize and manage community events, AMAs (Ask Me Anything), contests, and discussions to foster engagement. – Actively respond to community questions and feedback.
– Analytics and Reporting: – Track and analyze marketing performance metrics using tools such as Google Analytics, social media analytics, and proprietary data from our DEX. – Provide weekly reports on marketing and community metrics, and propose data-driven strategies for improvement.
– Creative Ideas: – Bring innovative and creative ideas to the table to stimulate growth and engagement. – Stay updated with the latest trends and implement new strategies to stay ahead in the market.
Qualifications:
– Proven experience in digital marketing and content creation, preferably within the crypto (Huge plus for experience in DEXs, memecoins, or NFTs). – Strong knowledge of social media platforms, including strategies to increase followers and engagement. – Excellent communication skills, both written and oral. – Creative mindset with the ability to generate compelling content ideas. – Ability to analyze data and extract actionable insights. – Experience with community management and engagement. – Familiarity with tools such as Google Analytics, social media management tools, and marketing automation platforms.
Salary: $400-$600 depending on experience, with a chance to grow.
Why Join Dexifier?
– Innovative Environment: Be part of a cutting-edge industry and work with a team that encourages innovation and creativity. – Career Growth: Opportunities for growth and advancement as Dexifier expands. – Impact: Play a key role in shaping the future of Dexifier’s user and community experiences. – Flexible hours and remote work.
How to Apply:
If you’re passionate about crypto, marketing, and community building, we’d love to hear from you! Please send your resume, a cover letter explaining why you’re the perfect fit for this role, and examples of your previous work to [email protected] or reach out to us on our discord.
Join us at Dexifier and help revolutionize the decentralized exchange experience!
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Feel free to tailor the job post further based on specific needs or company culture points you’d like to emphasize.
