Author: Mark Wolfe

BY: Attorney Mark Wolfe

The purpose of this article is to explain why analysis of a non-compete clause can be legally complex and what you can do to void or avoid a non-compete clause so as to expand future employment opportunities.

The validity of a non-compete clause in an employment contract is a common question faced by employees either when thinking about leaving a job or after leaving a job. Many times, the mere existence of a non-compete clause can interfere with future employment opportunities.  While questions about the validity of a non-compete clause are common, the answer often requires a detailed legal analysis of a variety of laws. Even if the validity of the non-compete clause is questionable or unenforceable, prospective employers may shy away from hiring someone subject to a non-compete clause for fear of legal repercussions. This is why you may want to consider hiring a lawyer to help challenge the validity or application of a non-compete clause. If you are subject to a non-compete clause in your employment contract, the first thing you need to do is determine the legal strength of the non-compete clause and then determine a strategy to either void the non-compete clause or avoid the application of the non-compete clause. [See Case Study below] What follows are some general legal issues and concerns related to non-compete clauses:

JURISDICTION :There is no Federal or uniform law regarding non-compete clauses in employment contracts. This means each State has its own laws and regulations regarding the validity of non-compete clauses. Some States have detailed statutes and regulations on the scope and duration of a non-compete clause.  Other States have no regulations on non-compete clauses but rather rely on prior case law decisions regarding the validity of non-compete clauses. A few States prohibit non-compete clauses with some exceptions related to bona fide trade secrets while others hold that certain jobs cannot be subject to non-compete clauses. Every State is different regarding its validation of a non-compete clause. So, the first step in analysis is determining which State law applies to the non-compete clause. While this may seem simple enough, this determination can be very complex. Many times, an employment contract will have a “Choice of Law” clause wherein it is declared what State laws will apply to the employment contract. Yet there are certain restrictions on the use of Choice of Law clauses in contracts. Generally, a nexus or connection between the parties and the State is required. If the Choice of Law clause is not valid or there is not one in the employment contract, the next analysis is what State’s law may apply. If the employer and employee are both in the same State, then the law of that State would apply to the analysis of the non-compete clause. But if the employer has its principal place of business in another State and the employee is a resident of another, then determining which State’s law may apply may require a factual analysis. With that said, generally, if an employment contract is going to “cross State lines” or involve multiple jurisdictions, it will have a Choice of Law provision.  So, the first issue faced when trying to determine the validity of a non-compete clause is what State law is applicable to the contract analysis.

APPLICATION OF LAW: Most States that regulate non-compete clauses require some limitation on the duration and geographic scope of the non-compete clause. In other words, how long it can last and what is the breadth, or geographic reach, of the non-compete agreement. Once the applicable law is determined then an analysis of the terms of the non-compete clause must be done. Specifically, does it comply with the applicable legal requirements.  The factual construction of the terms of the non-compete clause and the applicable law may provide areas of differing interpretations and hence call into question the validity of the non-compete clause.

VOIDING OR AVOIDING THE NON-COMPETE CLAUSE: After an analysis of the applicable law and the terms of the non-compete clause has been done then the most critical step is either voiding the clause or avoiding the clause. To void the clause will most likely require legal action either in an appropriate Court of law or through the contractually mandated Arbitration procedure. This process will cost significant money in legal fees and expenses. While this may sometimes be done via a class action lawsuit, litigation and high legal fees are not your main objective. The objective is simply to develop a strategy to avoid the non-compete clause to prevent it from being a hindrance to your future employment. The best-case scenario is to present the employer with a well-presented legal argument for avoidance of the non-compete agreement. In other words, you’re not trying to force the employer to “void” the non-compete clause completely for all your co-employees but rather simply getting them to agree that in your case it will not be enforced.  Most of the time this process involves several communications with the employer and its legal team to help establish a communication channel with the appropriate person or department. Before a Request to Avoid is submitted, you need to make sure it is going to someone within the company that has the appropriate authority to void the clause or limit its enforcement. Once an agreement is reached, it needs to be put into writing with all applicable terms such as confidentiality.  With the agreement in writing, you can truthfully tell future employers that you are not subject to a non-compete clause.

RECENT CASE STUDY: Jonathan was terminated from his employment with Company X as a sales representative for alleged under performance. A fact he strongly disputed. He was subject to a one-year non-compete clause in his employment contract. Jonathan immediately began seeking new employment, but every interview included the question, “are you subject to a non-compete clause?” Jonathan later said, “they didn’t ask me anything about the details of the non-compete clause, rather it was like the mere existence of the non-compete clause was a strike against hiring me.”  After four months of having the employment door slammed in his face, Jonathan hired Attorney Mark Wolfe of Boteler Richardson Wolfe to develop a strategy to avoid the non-compete clause.  His employment contract dictated what State law would apply. After reviewing the applicable law, Attorney Mark Wolfe noted the clause did not comply with the applicable laws of the State of jurisdiction AND the State of jurisdiction recognized a tort claim for wrongful or improper termination. With this analysis completed, Attorney Mark Wolfe then helped guide Jonathan through a series of emails with his former employer. After a series of emails from Jonathan, as guided by Attorney Mark Wolfe, the company agreed in writing not to enforce the non-compete clause in Jonathan’s employment contract. Without this encumbrance, Jonathan was able to find a sales job in his field within six weeks!

CONCLUSION: An experienced lawyer can help you determine the validity and strength of the non-compete clause in your employment contract and he or she can help you develop a strategy to avoid the negative impact a non-compete clause can have on your future employment opportunities. If you would like a free initial consultation about a non-compete clause in your employment contract, please contact Mark Wolfe at 251 410-7761 or by email at mark@brwlawyers.com, please reference “Non-Compete ?” in the subject line.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post, then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

Remote Working and Potential Violations of the Fair Labor Standards Act

Introduction: The advent of remote working has brought about significant changes to the traditional workplace dynamic. With the increasing prevalence of remote work arrangements, it is essential to consider the potential implications for labor laws and regulations. One notable concern is the potential for violations of the Fair Labor Standards Act (FLSA), a key piece of Federal legislation designed to protect workers’ rights. This article explores the challenges and potential violations that may arise in the context of remote work and how employers and employees can ensure compliance with the FLSA.

1. Misclassification of Employees: One of the primary areas where violations of the FLSA can occur in remote work arrangements is the misclassification of employees. Employers must correctly classify workers as either employees or independent contractors, as this determination significantly affects their entitlement to certain labor protections. Misclassifying employees as independent contractors can lead to violations of the FLSA, as independent contractors are exempt from many of the act’s provisions.

2. Overtime and Compensation: Another area of concern in remote work is ensuring proper compensation for overtime hours worked. Under the FLSA, non-exempt employees are entitled to receive overtime pay at a rate of at least one and a half times their regular hourly wage for any hours worked beyond 40 hours in a workweek. The challenge with remote work is accurately tracking and recording employees’ hours, particularly when they have flexible schedules or engage in off-the-clock work. Failure to accurately account for and compensate for overtime can result in FLSA violations.

3. Off-the-Clock Work: Remote work may blur the boundaries between work and personal life, leading to potential violations of the FLSA’s regulations regarding off-the-clock work. Employers must ensure that employees are not performing work-related tasks outside their designated work hours without proper compensation. Answering work emails or attending virtual meetings after hours, for example, should be considered as work time and compensated accordingly to comply with the FLSA.

4. Meal and Rest Breaks: The FLSA mandates that employers provide meal and rest breaks to non-exempt employees. However, remote work arrangements may lead to challenges in ensuring that employees are taking appropriate breaks. Employers must communicate clear policies to remote workers regarding their entitlement to breaks and provide mechanisms for tracking and documenting these breaks. Failure to provide employees with adequate breaks can result in FLSA violations.

5. Record keeping: Accurate record keeping is crucial for FLSA compliance, but it becomes more challenging in remote work scenarios. Employers must etablish robust systems to track employees’ work hours, breaks, and any other relevant information to ensure compliance with the FLSA. Proper record keeping helps resolve disputes and provides evidence of compliance in case of an audit or investigation.

Conclusion: While remote work offers numerous benefits for both employees and employers, it is important to address the potential violations of the Fair Labor Standards Act that may arise. Employers must ensure that remote workers are properly classified, accurately compensated for overtime, not performing off-the-clock work, provided with adequate breaks, and maintain thorough record keeping. By addressing these concerns, employers can navigate the complexities of remote work while upholding their legal obligations under the FLSA, ensuring fair treatment of employees, and mitigating the risk of labor law violations. If you believe your employer may not be fully compensating you for your time, call Mark Wolfe at 251 410-7761 or send an email to mark@brwlawyers.com and put “employment compensation?” in the subject line.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post. The above article was written with the assistance of ChatGPT.

PFAS Contamination in Our Water Supply?

Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that have been used in industry and consumer products worldwide since the 1950s. They are found in m

any everyday products, including food packaging, textiles, and non-stick cookware. PFAS can enter the environment through manufacturing facilities, airports, and military installations where firefighting foam containing PFAS was used. These chemicals are persistent in the environment and can accumulate in the human body over time.  According to an analysis by the Environmental Working Group (EWG), an independent research and consumer watchdog organization pushing to limit exposure to chemicals through water, food and household products, some level of PFAS have been found in water samples of 2,790 communities across 49 states. More recent testing found high PFAS levels in drinking water in 34 major US cities. Some researchers say nearly every source of surface water in the country is contaminated.

The EPA has not established national drinking water regulations for PFAS.  However, in 2022 the EPA revised its health advisory to conclude that some negative health effects may occur with concentrations of PFAs substances in water that are below the EPA’s ability to detect at this time. The lower the level of PFAs substances, the lower the risk to public health. For information regarding Alabama Department of Environmental Management’s recent testing of the state’s water supply:  https://adem.alabama.gov/programs/water/drinkingwater/files/AllPFASResults.pdf

Numerous lawsuits have been filed against PFAs manufacturers.  The U.S. Judicial Panel on Multidistrict Litigation has consolidated and centralized these lawsuits in an MDL (Multidistrict Litigatio

n), and appointed U.S. District Judge Richard M. Gergel to preside over coordinated discovery and pretrial proceedings out of the District of South Carolina. You may be eligible to file a lawsuit for PFAs exposure.  Currently, Boteler Richardson Wolfe is representing clients who:

• Received a diagnosis of testicular or kidney cancer since 2000.
• Drank from a contaminated water supply from 1990 to present for over six months. (Each claimant must be able to establish exposure to the contaminated water supply).

If you have any questions regarding your eligibility, call us @ 251.433.7766.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

Hair Relaxers

A recent study by the National Institutes of Health found that women who used hair straightening products more than four times in the previous year were twice as likely to develop uterine cancer than those who did not use them. The study noted that approximately 60 percent of the participants who reported using straighteners in the previous year were self-identified Black women. The researchers did not collect information on brands or ingredients in the hair products the women used. However, they noted the presence of several chemicals found in straighteners (such as parabens, phthalates, bisphenol A, metals and formaldehyde) that could be contributing to the increased uterine cancer risk observed. “We estimated that 1.64% of women who never used hair straighteners would go on to develop uterine cancer by the age of 70; but for frequent users, that risk goes up to 4.05%,” said Alexandra White, PhD, head of the NIEHS Environment and Cancer Epidemiology group and lead author of the study.

Soon after the study was released, many users of the hair relaxer products filed lawsuits against the manufacturers such as L’Oreal and Revlon throughout the county. Several of these lawsuits have noted that the risks of developing cancer are more substantial among Black women, who make up the overwhelming majority of consumers of hair relaxing products. The U.S. Judicial Panel on Multidistrict Litigation decided earlier this year to consolidate and centralize all hair relaxer cancer lawsuits in an MDL (Multidistrict Litigation), and appointed U.S. District Judge Mary M. Rowland to preside over coordinated discovery and pretrial proceedings out of the Northern District of Illinois.

Boteler Richardson Wolfe is pursuing product liability claims to file in the North District of Illinois against hair straightener and hair relaxer manufacturers. If you used a hair straightener and/or relaxer products and have received a diagnosis of uterine cancer or ovarian cancer, you may have a potential claim. Please call us at 251.433.7766 for a free consultation.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

By Attorney Mark Wolfe

[A portion of this article was auto-generated by Chat GTP] If you were denied life insurance benefits, the first thing you should do is find out why. You should receive a letter from the insurance company explaining the reason for the denial. If not, request a written explanation. This should be done in writing and should always include the policy number, the decedent’s name and  his or her date of birth and date of death. Common reasons for denial include inaccurate or incomplete application information, a pre-existing medical condition, or risky behavior such as smoking or extreme sports.

Once you understand the reason for the denial, you can take action to try and appeal the decision. Here are some steps you can take:

1. Review your policy: Read the policy carefully and make sure you understand the terms and conditions. Make sure the insurance company followed the proper procedures and complied with the terms of the policy.
2. Contact the insurance company: Call the insurance company and ask for a detailed explanation of why your claim was denied. You may also want to ask for a copy of your policy and any other relevant documents.
3. Once you know the insurance company’s reason for denying the benefits, consult with an experienced life insurance benefit attorney as soon as possible. Most experienced life insurance benefit attorneys provide free consultations. An attorney with experience handling life insurance benefit claims  can review and analyze the basis for denial and determine if you have a viable claim for benefits. This may include an appeal of the denial with the insurance company or a lawsuit against the company. IMPORTANT NOTE: Some life insurance policies have very strict time limits for an appeal and require an appeal be submitted before a lawsuit can be filed. The appeal process may have very technical legal compliance requirements.  Failure to comply with these requirements may prohibit further legal action.

If you have been denied life insurance benefits and would like a free legal consultation with an experienced life insurance attorney, contact Mark Wolfe today at 251 410-7761 or text him at 251 533-9548. Consultations are free and our lawyers are licensed to practice in Alabama, Mississippi, Florida and Georgia. Mark has also worked with associated attorneys on life insurance claims in many States.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

USE OF PRESCRIPTION MEDICATION ELMIRON ® LINKED TO VISION LOSS

BY: Attorney Mark Wolfe

Elmiron is an oral medication approved by the FDA to treat the pain and discomfort of the bladder condition known as interstitial cystitis (IC). Numerous recent medical studies have now been released that have linked those who have taken Elmiron to a vision loss condition known as pigmentary maculopathy. Maculopathy is a pathological condition of the macula, which is the area of the retina that is associated with highly sensitive and accurate vision. In the case of those who have taken Elmiron, there is evidence that a buildup of pentosan polysulfate sodium, the active ingredient in Elmiron, in the retinal cells causes these irreversible vision problems. These problems appear to be more common with women who have used Elmiron.

Elmiron has not been recalled despite studies linking long-term use of the IC drug to potentially permanent vision damage. The drug is manufactured by Janseen Pharmaceuticals (Janssen). Janssen is a pharmaceutical company headquartered in Beerse, Belgium, and wholly-owned by Johnson & Johnson. The drug has been on the market since 1996. However, Janssen did not warn about the risk of retinal pigmentary maculopathy until it updated the drug’s prescribing information at the direction of the FDA in June of 2020. The FDA published the new label with the maculopathy warning but it has not issued a statement or safety communication about it. At this point, the agency has not required Janssen to recall the drug and the drug maker has not said it plans to issue a voluntary recall.

Some of the most common symptoms associated with pigmentary maculopathy include the following:
– Difficulty reading
– Blindness
– Eye pain
– Difficulty adapting to dim lighting
– Vision disturbances or distorted vision, or
– Trouble seeing things up close

If you or a loved one has suffered vision loss or vision difficulty and taken the drug Elmiron before June 2020, you may have a claim for compensation and restitution. Please call Mark Wolfe at Boteler Richardson Wolfe – Injury Lawyers today. 251 410-7761. Or email Mark at mark@brwlawyers.com, please put “Vision Loss Claim” in the subject line. Consultations are always free. Boteler Richardson Wolfe – Injury Lawyers have been helping people with injury claims and cases since 1987. Our lawyers are licensed in Mississippi, Alabama, Florida and Georgia.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.