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Archives for October 2014

Confidential Sandwich from Jimmy John’s

Jon Allison

Non-compete agreements are generally used with high level employees with knowledge of confidential information about the business.  Jimmy John’s, however, makes lower wage workers like sandwich makers and drivers sign non-compete agreements.  The non-competes prevent employees from working for a competitor for 2 years after termination from Jimmy John’s at any restaurant that derives more than 10% of its revenue from selling submarine, hero, deli-style, pita and/or wrapped or rolled sandwiches located within 3 miles of any Jimmy John’s.

To be enforceable, in most states non-compete agreements cannot be overly broad and must protect some legitimate business interest.  While Jimmy John’s non-compete agreements probably are not enforceable, low wage workers are less likely to know that.  They are also less likely to have the resources to get advice from an attorney.

According to the Huffington Post, Jimmy John’s non-competes have the attention of Congress.  House Democrats are asking the Labor Department and the Federal Trade Commission to look into Jimmy John’s use of non-compete agreements.


Tracie Hunter Case Now Novel – Revised

Randy Freking

When two jurors on Wednesday filed sworn affidavits retracting their verdicts on one count against the former juvenile court judge, the filing presents a novel question: should a judge wait to poll the jurors after the complete verdict is announced in open court, or can a judge poll them earlier?

Normally, a losing party requests that a jury be polled (is this your true verdict?) when a verdict is returned, and a judge is required to grant the request.

In Hunter’s case, the jury returned one verdict – guilty – on one count and Judge Nadel polled them after “sealing the verdict” and not reading the guilty verdict. They all said the one verdict was their verdict.

Four days later, after two more days of deliberations, the jury announced they were deadlocked on the other eight counts.

Judge Nadel then read the verdict from four days earlier-guilty- but refused the former judge’s request to have the jurors polled after Judge Nadel read that verdict in open court. Two jurors now say they changed their minds again before the full verdict was read in open court

There is no precedent in Ohio for this situation and, thus, the Hunter case-worthy of a nonfiction novel- now will be worthy of a precedent setting court decision.  A political hot potato, for sure.

Respected retired Court of Appeals Judge Mark Painter remarked simply: “I am glad I am not still on the appellate court.”

For more information on the verdicts, read Kimball Perry’s article in The Cincinnati Enquirer.

The previous version of the blog misspelled precedent as decendent.  Sorry for the error.




Randy Freking

The United States Supreme Court opened its new term this week. Of importance to employees and employers, the Court will consider eight labor and employment law cases over the next nine months raising a variety of issues involving discrimination, pensions and benefits, wage and hour law, and federal employees’ rights.

Just last week, the Court added two cases for review. One involves the issue of whether Abercrombie & Fitch Stores could lawfully reject a Muslim job applicant who wore a head scarf, after a Federal Court of Appeals denied the Equal Employment Opportunity Commission’s claim of religious discrimination. The second case accepted by the Court last week involves a case under the Employee Retirement Income Security Act involving the “duty of prudence” held by Plan Fiduciaries.

Perhaps the most noteworthy case of the eight labor and employment law cases on the docket this term involves whether the EEOC’s pre-suit efforts to settle discrimination charges under Title VII of the 1964 Civil Rights Act are subject to judicial review. A mining company argues that courts should have the authority to review the EEOC’s settlement efforts. An appeals court had ruled that Title VII makes the settlement process confidential and leaves it to the Agency’s discretion as to whether a proposed settlement is acceptable.



Mark Napier

Most people are aware that former Saturday Night Live cast member and 30 Rock television actor Tracy Morgan was critically injured in June when a Wal-Mart tractor trailer slammed into the rear of his limousine van on the New Jersey Turnpike. James McNair, another comedian and occupant of the van, was killed in the crash. It is alleged in a recently filed lawsuit that the tractor trailer driver had not slept for over 24 hours, and consequently fell asleep at the wheel.
This crash has begun to awaken the motoring public to the fact that nearly 4,000 persons are killed each year in truck-involved crashes according to the U.S. Department of Transportation. This number of deaths is more fatalities than aviation, boating, and railroad fatalities combined. A fatal truck-involved crash often costs millions in damages. But, a federal law passed in 1985 only requires trucking companies to carry $750,000 in liability insurance coverage to cover all damages from a crash. Because of such low liability insurance coverage limits, injured motorists themselves or taxpayers are left to pay the difference.
The Federal Motor Carrier Safety Administration (FMCSA) has recognized that current minimum liability insurance standards are far too low. In April of this year, the FMCSA released to Congress a report, which concluded that the costs of injuries and fatalities from truck crashes far exceed the current minimum insurance levels trucking companies are required to carry.
Congressman Matt Cartwright, Pennsylvania District 17, on July 18, 2013 introduced the Safe and Fair Environment on Highways Achieved through Underwriting Levels Act of 2013 (SAFE HAUL), H.R. 2730. This bill would increase cargo trucks’ minimum liability insurance requirements to meet today’s costs for truck crashes, and to update for inflation going forward.
The bill is currently pending in a transportation subcommittee. Please contact your Congressman today and urge him or her to co-sponsor and urge timely passage of the SAFE HAUL Act.