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

Dallas City Hall revealed that a number of city employees were on Facebook a few too many hours during the workday:

• A City analyst had his Facebook account open for 68 hours during a three month period beginning in January. 
• One racked up 198 hours in the same three month period. 
• Others, including a code Inspector, office assistants, convention centers, a convention center group leader, a water utilities engineer, and a cultural affairs coordinator all had in excess of 100 hours. 
• Employees together clocked in more than 3,000 hours on the site.

Now these numbers may be a little misleading because tracking the amount of time the actual user was logged in is not necessarily indicative of how long they were actually using the site. Needless to say, these results are not surprising. Take a walk around your office -  odds are someone is on some social networking site.

The question for the employer becomes how to govern this use?  In some cases, social networking may be encouraged for business reasons.  Ultimately, the employer must have a clear social media policy in place that addresses what appropriate use is or is not - policy - policy - policy.  This will vary from employer to employer.

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Tune into the Proactive Employer for a roundtable social media podcast that a number of sharp lawyers participated in last week.  Should be something for everyone. 

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We've talked about the Texas Supreme Court's opinion in Marsh USA v. Cook and what employers should be doing in light of the ruling.  What about employees?  Here are a few thoughts:

1. Non-competes are getting easier and easier to enforce in Texas - Employees should take them seriously and assume they are enforceable when negotiating;
2. Have a lawyer review any proposed non-compete or non-solicitation agreement to get an idea as to its enforceability;
3. Negotiate - Negotiate - Negotiate;
4. With respect to 3: (a) get an agreement that any non-solicitation does not apply to previous customers/clients; (b) limit the geography and length of any agreement; and (c) negotiate a buy out of the agreement;
5. Be wary of any non-compete that is based upon money or compensation - it may be enforceable now;
6. Keep copies of anything that is signed.

Any other suggestions?

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We've talked about the Texas Supreme Court's opinion in Marsh USA v. Cook and its legal niceties, but what does it mean for employers and what should they be doing in light of the ruling?  The fact of the matter is we won't know until lower courts address the opinions, but here are a couple of suggestions for employers:

1. Non-competes are getting easier and easier to enforce in Texas - All employers should consider including post-employment covenants in their employment agreements if warranted;
2. Employers should consider using financial consideration to form the basis for a non-compete or non-solicit;
3. Financial consideration could include stock options (the consideration in the Marsh case) and other items such as signing bonuses or agreed to severance - frankly these options may be limitless;
4. It will take some time for lower courts to determine what Marsh means but include financial consideration in some form in the agreement; and
5. Even if a non-compete is unenforceable it may still make an employee think twice before leaving.

Next time we'll address what employees should be considering.

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On July 14, 2011, I will be a part of a panel discussion on social media on the Proactive Employer podcast - http://www.blogtalkradio.com/theproactiveemployer. Please check it out.

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