Discouraging Employee Departures

Because employers invest money in hiring, training and developing their employees, they would like their employees to remain in their employ. You know how it goes. You spend time and money on recruiting the best candidates. Then, you teach the ones you hire how to do their jobs. Just as the best one of the bunch gets to the point where she is ready to contribute to the enterprise, she up and leaves to join the competition. What does the law allow employers to do to retain employees?

The best way to retain employees is to offer competitive pay and benefits, an enjoyable working environment, and a job that matches the employees skills. So as long as you do not discriminate on the basis of a prohibited characteristic, the law allows you to offer whatever incentives you like to encourage employees to stay. This how-to guide from The Wall Street Journal has some ideas about how to hang on to your employees.

Disincentives are another story. For example, California law is quite clear that you may not require an employee to sign a non-compete clause that bars her from quitting to join the competition. Business and Professions Code section 16600 provides that, with few exceptions, "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

Although you might be tempted to charge departing employees for the investment you made, there are restrictions on that, too. Labor Code section 2802 requires employers to absorb all the regular costs of doing business, including recruiting and training employees to do their jobs. If the employer pays for voluntary training or education that is not required for the job, the employer may charge that back to the employees. For discussions of the distinction, see USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197 and In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498. To implement such a program, you will need a written agreement that the employee signs before receiving the training.

There is also room within the law for tying some aspects of compensation to a commitment to sticking with the employer. In Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, the Supreme Court upheld an incentive plan that allowed employees to receive part of their compensation in the form of discounted restricted stock, which had a two-year vesting period. If an employee voluntarily terminated employment or was terminated for cause before the end of the two-year period, the restricted stock would be forfeited. That same concept can be applied to payment of relocation expenses, and signing bonuses. The idea is that the employee has not earned the payment, until she has worked the specified amount of time for the employer. Keep in mind that the Schachter case involved only a two-year delay in receiving the compensation. Imposing a requirement that the employee remain employed for an extended length of time might render the plan unlawful.

Are No Rehire Agreements Unlawful Under California Law?

Settlement agreements with employees often provide that the employee will never again seek employment with the settling employer. Such provisions are probably essential to reaching settlement in some cases. A recent decision from the Ninth Circuit calls into question their validity.

California Business and Professions Code section 16600 provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." The provision clearly bars any agreement between an employer and an employee that the employee will not participate in any business in competition with the employer after the termination of employment.

In Golden v. California Emergency Physicians Medical Group, Case No. 12-16514 (9th Cir. Apr. 8, 2015), the challenged provision was part of the settlement of a lawsuit by a doctor for loss of his staff membership at a medical facility. It stated that the doctor "shall not be entitled to work or be reinstated at any [employer]-contracted facility or at any facility owned or managed by [the employer]." The doctor had agreed to the term orally in open court, but then refused to sign a written settlement agreement. The trial court ordered the settlement enforced based on the proceedings in open court, The trial court held section 16600 in apposite reasoning that the challenged provision was not a covenant not to compete, but a statement of intent that the employer chosed not to employ the doctor at any of its facilities.

The Ninth Circuit ruled that the literal terms of section 16600 might apply, and ordered the trial court to "determine in the first instance whether the no-employment provision constitutes a restraint of a substantial character to [the doctor]'s medical practice." Citing a 1916 California Supreme Court case, the Court of Appeals stated that the statutory prohibition extends to any restraint of a substantial character. (See Chamberlain v. Augustine, 156 P. 479 (Cal. 1916).) Because no reported California decision had addressed the question, the Ninth Circuit was predicting what the California Supreme Court would rule if the question were presented. Although the federal district courts in California must follow the decision, California courts are free to ignore it.

Covenants Not To Compete

A recent decision from the Santa Ana division of the Fourth District Court of Appeal prompts consideration of California law on covenants not to compete. Fillpoint, LLC v. Maas, Case No. G045057 (Aug. 24, 2012).

From the days of common law employers have found it difficult to enforce promises by their employees not to compete after the termination of the employment relationship. The common law principles are explored in a case that many law students encounter in their contracts casebooks -- Karpinski v. Ingrasci, 28 N.Y.2d 45 (1971), which concerned a promise by an employee of a dental practice never to practice dentistry or oral surgery in five New York counties. The court explained: "Since there are 'powerful considerations of public policy which militate against sanctioning the loss of a man's livelihood,' the courts will subject a covenant by an employee not to compete with his former employer to an 'overriding limitation of "reasonableness."'" In that case, it was unreasonable to enforce the prohibition on practicing dentistry because the former who employer who sought to enforce the restriction had only practiced oral surgery.

In California, the hostility to covenants not to compete is codified in Business and Professions Code section 16600: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." The chapter provides exceptions for promises not to compete within a "specified geographic area" that accompany (1) sale of a business (section 16601), (2) joining a partnership (section 16602), or (3) becoming a member of a limited liability company (section 16602.5).

There are some Ninth Circuit decisions that purport to find a "narrow restraint" exception to the overall ban imposed by section 16600. See, for example, International Business Machines Corp. v. Bajorek, 191 F.3d 1033 (9th Cir. 1999). In 2008, the California Supreme Court put an end to that interpretation, and ruled that any exceptions must come from the legislature. Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008).

There were two covenants not to compete at issue in the Fillpoint case. When Fillpoint's predecessor in interest acquired Crave Entertainment, Maas, a Crave Entertainment stockholder and employee, signed (1) a stock purchase agreement in which he promised not to engage in the business that Crave Entertainment had for three years following the purchase, and (2) an employment agreement in which he promised not to compete with the purchaser of the business for one year following the termination of his employment. Although both agreements referred to each other, the Court of Appeal rejected Fillpoint's argument that both covenants should be considered part of the sale of a business. The provision in the stock purchase agreement was enforceable, but that in the employment agreement was not.

Employers who are concerned about the damage that departing employees might inflict on their businesses have the following limited options:

• A promise not to solicit the former employer's employees will probably be enforced. Loral Corp. v. Moyes, 174 Cal. App. 3d 268 (Cal. App. 6th Dist. 1985).
• The former employer may prevent a former employee from disclosing or using its trade secrets to benefit another business. Although a customer list or a list of prospects may meet the definition of a trade secret, the former employer may only bar solicitation. It may not prohibit the former employee from accepting business from its customers, nor from engaging in marketing efforts that do not involve use of the customer lists. The Retirement Group v. Galante, 176 Cal. App. 4th 1226 (2009).