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May 2017 Archives

We must be very hesitant to avoid the criminalization of political acts

Putting politics aside, this is a time when the law is in the news. During the campaign, I blogged once on the issue of candidate language that appeared to tolerate bigotry and discrimination -- because it related to this Firm's law practice. In my practice, I routinely handle federal criminal defense cases as well as employment and education cases. Therefore I feel compelled to blog again. Some are calling the President's conduct in speaking to FBI Director Comey obstruction of justice. I don't endorse his actions. However, we must be very hesitant to avoid the criminalization of political acts. This is true for two reasons. It is bad for all of our liberties when we make it too easy to prosecute speech, the point made by Elizabeth Price Foley, the law professor who wrote in the NY Times article, "Trump's Statements Are Not an Obstruction of Justice". Moreover, we undermine the Republic when we rush to criminalize political leaders or rush to impeach. The ballot box should be given more deference. It is really what this country stands for and has allowed us to stay free and stable for over 200 years.

Why are non-compete agreements popular?

This article "Companies Compete but Won't Let Their Workers Do the Same" is a thoughtful piece and there is much I agree with, especially in regard to lower wage workers and the depressing effect of non-competes on wages. But the author fails to note the real reason why non-competes are popular: companies invest in their employees in developing relationships with customers and in learning technology. Smaller companies that don't have non-competes for key personnel are difficult to sell. And companies take a real risk that employees will simply learn from the experience of a job and hand a customer list on a platter to the competitor. So in the absence of a non-compete, many companies won't invest or trust their employees. That can slow the growth of companies. Moreover, in some states, companies pay employees to sign a non-compete. In the Midwest, companies don't need to do that. That is wrong. Companies should pay a premium for workers limiting post-job options. But California is hardly the panacea the author claims. I have represented many employees who have been threatened with aggressive approaches to trade secrets violations by their former California employer. In other words, when the former employer can't use a non-compete, they find other paths. Are non-competes over-used?  Undoubtedly.

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