Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

Whenever I talk with an employee or employer about a noncompete or nonsolicitation agreement the number 1 question is "Can you provide me with the agreement you (or the employee) signed?"  Usually, the employer has a nice neat employment file that contains all agreements.  Employees on the other hand are usually a different story. 

In the last week I've talked to two highly paid employees who were contemplating making a move to a new company.  One thought they had a noncompete, the other couldn't remember.  Neither had the actual agreement but was going to request one from their employer. 

An employee requesting their employment agreements at the end of the year sends out a red flag - "I am looking for a new job."  There is a lot of employment transition at the end of the year as the employee has presumably received their bonus and there is less financial incentive to stay.  Yes, your employer will provide you with your agreements, but if they're smart you will be under the microscope.

Point is, keep anything you sign with your employer.  Ask for a copy at the time you execute any agreement, including any amendments or supplements you sign through the years.  It just makes good sense for a variety of reasons.  Remember, the agreement your coworker signed isn't necessarily the same agreement you signed. 

(H/T Virgina Non-Compete Law Blog)

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Happy Holidays to you and your family.  Below are a few of my favorite deposition clips:

This back and forth is priceless:

 The masked man deposition:

My all time favorite with Texas legend Joe Jamail:

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It's that time of year - the NFL season is drawing to a close and fantasy football leagues are in the midst of the playoffs.  Fantasy leagues are as popular as ever and cover all sports, not just football.  Fantasy leagues based on the NFL are by far the most popular and in many instances are comprised of co-workers and in some cases the use of company resources like email.

Which leads us to the firing of four employees in Fidelity Investments' Westlake, Texas office for playing Fantasy football.  Fidelity's take on the firing:

We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. In addition to being illegal in a lot of places, it can also be disruptive. We want our employees to be focused on our customers and clients.

One of those fired, Cameron Pettigrew, knew that Fidelity did not permit playing fantasy on company time but claimed he never used company email for the league.  Fidelity did find two instant messages that included fantasy content.  Pettigrew explained:

One of my buddies sent me something about how bad Trent Edwards was playing or something like that, So they called me in and talked to me for about 90 minutes on everything I ever knew about fantasy football. They interrogated me as though I was some sort of international gambling kingpin. Then they released me for the day, and I was like, 'OK.’ I never thought they’d fire me for this, but, the next day, I get the call saying I had been terminated.

Tough time of year to be fired and Pettigrew knew he wasn't allowed to play at work, but was he really playing?  The Ft. Worth Star Telegram asked its readers if Fidelity overreacted:

Did Fidelity overreact by firing fantasy football players?
(1) No. (19%, 60 votes)
(2)Yes. (57%, 185 votes)
(3)Depends. (There's no way outsiders can know the whole story.) (24%, 78 votes) 

It seems unlikely that Pettigrew and his cohorts have any legal challenges to the firing as Texas is an at-will employment state.   If a company has a policy against playing in a fantasy league during work time, don't play.
 

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Tiger Woods'  use of text messaging underscores the repercussions such communications can have, especially when the messages are released from the recipient to a third party.  Apparently, Tiger sent text messages to one of the women he is alleged to have had an affair with and she has offered the texts as proof.  Tiger isn't the first to down by way of the text message, as former Detroit Mayor Kwame Brown can attest to, and odds are he won't be the last. 

Text messaging may appear to be "safe" for communications of this sort but it is not.  In addition to the Tiger example, texting can be front and center in lawsuits.  Consider a scenario where two employees decide to leave their employer and take valuable customer information with them.  They coordinate their departure through text messages because they believe this is safe communication as opposed to email.  Is it?  Can the employer obtain the texts through discovery?  

There are three potential sources to obtain text messages: the phone, the phone company, or the recipient. Once texts are deleted from the phone, it "sticks around" as described in Slate:

until enough new information is added to fill that memory, your old text message will remain on your device. If you used a SIM card to store your text messages before you erased them, then there might be space for the remains of 30 or so deleted messages; if the messages are downloaded directly to your phone, several hundred deleted messages could stick around on your device. Eventually, of course, the deleted messages will disappear as memory is filled with new messages, photos, or videos.

Phone providers have different policies on how long they maintain text files: AT&T Wireless keeps messages for 48 hours while Sprint keeps them on its server for approximately two weeks.  So it is unlikely that text messages can be obtained from the phone company unless you know about the messages near the time they were sent.

The third source, the recipient could keep the text forever.  They could print out the text, save it, or send it to other people.  The point is once you release the text message, just like an email, you have effectively published it to the world. 

The party to a lawsuit may have a difficult time obtaining text messages through discovery but should include requests for these types of communications.  Also, in appropriate instances, discovery should be directed to potential third-party recipients of such messages.

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Verizon and AT&T nonsuited lawsuits pending in New York and Atlanta today which largely stemmed over the companies' respective 3G phone service.  Verizon filed a declaratory judgment lawsuit in July requesting a New York court to find Verizon's claim that its 3G network was the most reliable was accurate.   AT&T filed a lawsuit in November claiming Verizon's "There's a A Map for That" ad campaign was misleading.  It also attempted to obtain a temporary restraining order shutting down the ad campaign but the Court denied the request. 

Verizon's campaign was a response to AT&T's iphone success  and the "There's an app for that" campaign.  It is unclear why the lawsuits were dismissed. The Judge's denial of AT&T's application for a temporary restraing order certainly did not bode well for future success in the Atlanta suit.

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