Additional Cases

I have provided a couple of additional cases for discussion in class. You may pick up hard copies in my office or, below, please find links to those cases for your reference.

Class 1:
Earthworks v. Sehn

Class 2:
Hawkins Chemical, Inc. v. McNea (ND)
Matyi v. Cahill Salon & Tan, Inc. (MN)
Salon 2000, Inc. v. Dauwalter (MN)

Bad Faith Factor

Even though the court in Rudman summarily dismissed the "fraud" issue, the court's brief discussion sparked the cynic in me. Bad faith must play an important role in the judge or jury's logic, admittedly or not, right? While the court conceded that some of Cowles' testimony was manipulative, it does make you wonder if Cowles was simply not pleased with what Rudman had to offer after working with him for a couple of months and then decided to "ice" him.

If we shift to Collins' issue as head chef, though, doesn't it seem like Marrimount's decision to hire a Hispanic assistant chef was just a demonstration of managerial oversight without the bad faith factor...even if it was an important issue to Collins? Regardless, it seems impossible to separate what some judges and juries might call bad faith and what other judges might call a legitimate business decision. Thoughts?

North Dakota Contracts in Restraint of Business

At the end of today's class we discussed the possibility of a non-compete clause in North Dakota. Below is the entire statute.

North Dakota Century Code 9-08-06. In restraint of business void - Exceptions.

Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:

1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part of either, so long as the buyer or any person deriving title to the goodwill from the buyer carries on a like business therein.

2. Partners, upon or in anticipation of a dissolution of the partnership, may agree that all or any number of them will not carry on a similar business within the same city where the partnership business has been transacted, or within a specified part
thereof.

For Thursday, consider what this would mean for our client (Reily) if he were doing business in North Dakota. What might this mean for potential employers looking to locate their business in North Dakota? Do you think this means virtually no employers use non-compete clauses in the state? Why or why not?

The California Non-Compete Clause

This article, in PC World, highlights a significant change in California law, one that is bound to make some waves in employment law circles. The California State Supreme Court recently invalidated non-solicitation contracts, which employers had used to prevent employees from leaving the company with clients and other employees.

In Edwards v. Arthur Anderson, the court determined that non-solicitation clauses are no longer legal in contracts that apply to California residents. Note that the decision appears to preserve non-solictiation agreements in the context of a sale of a business or the sale of a significant portion of a company's stock.

We won't cover the details of non-compete clauses, which are similar, until Class 8, but this is a timely case to get you thinking about Employment Law. Don't worry about whether you understand the nuance or background of this case, but do think about what this could mean in other contexts and for potential clients. If you were an employer, does this impact where you do business? And with whom? Are there ways around this issue if a non-solicitation agreement is desired?

Course Materials (Also Available in Syllabus)

This course uses the CaseFile Method. Each day will involve the use of a new case file, prepared by a “partner” along with supplemental materials from a “paralegal.” The file will include facts and issues, as well as the key cases and other supporting materials.

This method has been chosen because I believe it is the best method to provide knowledge about the basics of labor and employment law as well as the skills you must have to be an effective lawyer (i.e., make your knowledge useful). As an added benefit, the materials are an extremely cost effective way to reach the course goals. The materials for each segment of the course, (1) Employment Law and (2) Labor Law, are available online at the CaseFile Method web site (click on the links below). The materials are $12.95 for each segment of the course (i.e., $12.95 for Labor Law and $12.95 for Employment Law).

Employment Law
Labor Law

The CaseFile Method web site states: “Please note, you may use the first three CaseFiles in any category free of charge. Upon purchase, your account will be enabled to access the appropriate CaseFiles. Due to the nature of the CaseFile Method, we cannot offer refunds for purchased CaseFiles.” As such, if you are not sure you will stay in the course, you may review the first three case files at no cost, while you determine whether you wish to remain in the course.

I will also provide additional reading assignments throughout the term to supplement the case files. This may include newspaper articles, law review articles, and other writings related to the issues we are discussing. These materials will be from sources available to you at no cost.

Course Syllabus -- Fall 2008

Labor & Employment Law Course Overview and Syllabus

Law 291: Labor and Employment Law (Fall 2008)
Prof. J. Fershee
Tues./Thurs. 9:05 a.m. to 10:35 a.m., Room 212
Office Hours (rm 306): Monday, 1:00 p.m. to 2:00 p.m. or by appt.
e-mail: jfershee[@]law.und.edu; phone: 701.777.2261

Click Here for the Syllabus