Attorney Neil Franz was elected to the St. Cloud Area Chamber of Commerce’s 2013-2014 Board of Directors. The St. Cloud Area Chamber of Commerce is a 5-star accredited Chamber of Commerce. Neils, Franz, Chirhart, P.A. has been a long standing supporter of the St. Cloud Area Chamber of Commerce and local businesses.
In a day and age where it is common for key employees to move from one job to the next, more employers than ever are using non-compete agreements to protect their business. However, not all non-compete agreements are created equal. With the New Year nearly upon us, now may be a good time for employers to revisit their policies regarding non-compete agreements to ensure they are “reasonable” under the law should they have to be enforced.
Generally, Minnesota courts do not favor non-compete agreements. Non-compete agreements which excessively restrain trade or unduly burden an employee’s ability to earn a living are rarely enforceable. By contrast, agreements which do not impose any greater restriction on the employee than is necessary to protect the employer’s business in terms of scope, geography, and duration, are generally considered “reasonable” and upheld. Unfortunately, there is no bright-line rule for determining durational and geographic reasonableness. Instead, it is an intensely fact-driven, case-by-case inquiry. However, with respect to duration, non-compete agreements exceeding two (2) years have rarely been deemed reasonable by Minnesota courts.
Furthermore, it is important to remember a valid non-compete agreement is one where the employee received something of value (“consideration”) in exchange for signing the non-compete. There are two different standards regarding the consideration an employee must receive depending on when the employee enters into the non-compete agreement:
• Before the Employment Offer is Accepted. If an employee is required to enter into a non-compete as a condition of employment, the employment itself is sufficient consideration to support the non-compete agreement. This makes sense as the employee still has the freedom to refuse the job offer or accept the offer and the terms of the non-compete.
• After the Employment Offer Is Accepted. Once an employment relationship is established, an employer must provide the employee with separate and independent consideration in order for the non-compete agreement to be valid. For instance, an employer may condition an employee’s promotion upon the employee entering into a non-compete agreement. Under this scenario, the employee is receiving meaningful consideration in the form of a promotion in return for his/her agreement not to compete. By contrast, an employer cannot require an employee to enter into a non-compete agreement in return for benefits the employee is already entitled to under his/her current employment agreement. There, the non-compete agreement is invalid for lack of separate and independent consideration.
This publication is intended for informational purposes only, and should not be construed as legal advice. Our employment law attorneys have experience drafting, negotiating, and enforcing non-compete agreements, as well as advising employers on ways to minimize their risk when hiring employees who are subject to non-compete agreements. For information or assistance with non-compete agreements, or other employment issues, please contact one our employment law attorneys at 320-253-7130.
Attorneys from Neils-Franz-Chirhart will be attending the St. Cloud Area Chamber Technology and Education Conference on Tuesday, November 5. Attorney Betsey Lund will be presenting on the expansion of the “Ban the Box” legislation to private employers which will take effect January 1, 2014. Under the new regulation, private employers must wait until a job applicant has been selected for an interview or a conditional offer of employment has been extended before asking the applicant about their criminal record or conducting a criminal background record check. Betsey will discuss the new regulation and provide options for employers to inquire into an applicant’s criminal history while maintaining compliance with the law.
The Conference will be held at the Holiday Inn & Suites from 7:30 a.m. – 12:00 p.m on November 5. We have a limited number of tickets available to the Conference. If you are interested in attending, please contact us at 320-253-7130.
Neils-Franz-Chirhart is pleased to announce that Drew Hultgren has been awarded the Martindale-Hubbell® Rating of “AV” from his peers, the highest possible attorney rating for both ethical standards and legal ability. The AV Preeminent® rating is a significant accomplishment and a testament to the fact that an attorney’s peers rank him or her at the highest level of professional excellence. Congratulations Drew!
On Aug 1, 2013, the Family Reunification Act of 2013 (Minn. Stat. § 260C.329) went into effect in Minnesota. The Act allows for the reestablishment of a legal parent-child relationship in certain cases where 1) a parent’s rights were previously terminated, and 2) the child is under the guardianship of the Commissioner of Human Services. The petition to reunify is filed by the county attorney, and can only be brought when both the county attorney and the responsible social services agency agree that reunification is in the best interest of the child. Therefore, individual parents whose rights have been previously terminated and guardian ad litems are unable to request reunification or independently file a petition to reunify.
In order for a county attorney to file a petition, a series of factors must first be met. Specifically, reunification is only available where:
- the parent has corrected the conditions that led to an order terminating parental rights;
- the parent is willing and has the capability to provide day-to-day care and maintain the health, safety, and welfare of the child;
- the child has been in foster care for at least 36 months after the court issued the order terminating parental rights;
- the child is 15 years of age or older at the time the petition for reestablishment of the legal parent and child relationship is filed;
- the child desires to reside with the parent;
- the child has not been adopted; and
- the child is not the subject of a written adoption placement agreement.
The Act also prohibits reunification in cases where the termination of parental rights was based on a finding of sexual abuse, conduct resulting in the death of a minor, or where the parents were convicted of a crime of egregious harm (those crimes listed under Minn. Stat. § 260C.007, subd. 14).
If the petition is granted by the court, the child is no longer a ward of the state and all rights and legal responsibilities of the parent-child relationship are reinstated.
This publication is intended for informational purposes only, and should not be construed as legal advice. For information or assistance with family law issues, or to discuss how the Family Reunification Act of 2013 might impact your particular situation, please contact one our family law attorneys at 320-253-7130.
On March 12, 2013, Neil Franz, an Attorney with Neils, Franz, Chirhart, Hultgren & Evenson, P.A. was re-elected to the Farming Township Board of Supervisors. Mr. Franz was first elected in 2010, and as a result of his re-election he will serve an additional three-year term. Farming Township is located in central Stearns County and is home to approximately 1,000 residents. Mr. Franz practices in the areas of business law, real estate, estate planning, and litigation.
Holidays, Parenting Time, and Minor Children: How to Avoid Unnecessary Co-Parenting Stress Over the Holidays
Many families with separated/divorced parents or with parents who have never been married encounter extra stress over the holidays when they attempt to coordinate a holiday schedule that will allow both parents the opportunity to spend time with their children over the holidays. One of the best ways to avoid this unnecessary holiday stress is to make sure that your divorce decree, stipulation, or court order specifically addresses holiday parenting time and specifies the dates and times each parent is awarded holiday parenting time with the children. Without the necessary specificity, what will you do if you and your former significant other do not agree on the holiday parenting time schedule? Vague terms in a decree, stipulation, or court order like “Friday evening” or “weekend parenting time” can often be interrupted differently and you and your former significant other may not agree on when the parenting time begins or ends. Vague provisions can cause unnecessary headaches for the parties involved and can easily be avoided. Contact one of the Family Law Attorneys at Neils, Franz, Chirhart if you have additional holiday parenting time questions or need help enforcing your rights for holiday parenting time.
Here are some more tips for co-parenting during the holidays:
1. If your divorce decree, stipulation, or court order does not specifically state your holiday parenting time, discuss the holiday parenting schedule with your former significant other well in advance of the holiday season. These issues can often be remedied as long as they are addressed prior to the holiday season.
2. Be reasonable. Many parents rotate or alternate holidays. If you spent last Christmas with the children, it is reasonable to assume your former significant other will want time with the children this year.
3. Keep the children’s best interest at heart. Children do not like to spend their entire holiday vacations in the car or being ping-ponged between their parents. Set a schedule that is reasonable and allows the children to avoid the holiday season, too.
4. Children should not be involved in discussions about holiday parenting time disputes. Any discussions between you and your former significant other should be confined to the two of you. Do not involve the children in any discussions or permit them to decide where they want to spend the holidays. This only puts the children in the middle and makes them feel forced to choose between parents.
5. If your divorce decree, stipulation, or court order (or if you don’t have any!) does not specifically state the parents’ holiday parenting time schedule, contact a Family Law Attorney at Neils, Franz, Chirhart to assist you in creating a holiday schedule that meets your family’s needs and prevents further stress during the holiday season. Our Attorneys can help draft a holiday parenting time schedule that it is reasonable, clear, and legally enforceable.
Happy Holidays from Neils, Franz, Chirhart, P.A.
NFC Attorney Roger Neils prevailed in an appeal from a denial of a conditional use permit (CUP) for an Extractive Use – Gravel Pit by the Cass County Planning Commission and Board of Adjustment (Board). The Central MN company, Tri-City Paving of Little Falls, which is engaged primarily in the business of road construction contracting, had applied for renewal of an existing conditional use permit and issuance of a new permit to allow continued operation and expansion of a gravel pit they had been using for over 20 years. After a number of hearings, which included development and consideration of an Environmental Assessment Worksheet, creation by the County’s Zoning Administrator and staff of proposed findings approving the application and development of 33 conditions to be imposed on the operation during public hearings—all of which were agreed to by the applicant—the BOA/PAC denied the conditional use permit! Attorney Neils, on behalf of Tri-City Paving, argued through written briefs and oral arguments to the Minnesota Court of Appeals that the denial was arbitrary, capricious and unreasonable because the reasons for denial: (1) were merely conclusory and did not satisfy the requirements of Minnesota Statutes §15.99, subd. 2(b) or the County’s own Zoning and Land Use Ordinance; (2) were legally insufficient and (3) lacked a factual basis on the record. The Appellate panel agreed with Attorney Neils on every issue and stated that because Tri-City agreed that it would satisfy the criteria laid out in the Ordinance, and because the Board’s reasons for denial were conclusory and unsupported by the record, the Board acted arbitrarily by denying the conditional use permit. Accordingly, the Appellate Court reversed the decision of the Board.
The Minnesota unemployment statutes are designed to provide assistance for those who become involuntarily unemployed through no fault of their own. If an employee quits his or her employment, generally speaking he or she is not eligible to receive unemployment benefits. However, there are a few exceptions under the statute. An employee may be eligible for unemployment even if the employee quit the employment if the employee can demonstrate that he or she quit for good reason. The “good reason” must be (1) directly related to the employment and for which the employer is responsible; and (2) the reason for quitting the employment must be significant and would compel an average, reasonable worker to quit and choose to be unemployed rather than remaining in their position.
An employee may also be eligible for unemployment even if the employee voluntarily ended their employment if he or she can demonstrate they quit the employment due to their own serious illness or injury or that it was medically necessary for the employee to quit employment to provide necessary care because of the illness, injury, or disability of an immediate family member of the employee. Whether to care for oneself or an immediate family member, the employee must have previously informed the employer of the medical issues, the employee must have requested an accommodation, and the employer must have refused to provide a reasonable accommodation.
There are several other exceptions, often less relied upon, under the statute that if proven, may permit an employee who voluntarily quits his or her employment to receive unemployment benefits. If you have questions about the unemployment process or appeal process, contact Neils, Franz, Chirhart at (320) 253-7130.
In a recent ruling by the Minnesota Court of Appeals, an employee, who had been encouraged to quit her employment, form her own company, and work for her former employer as an independent contractor, was eligible for unemployment benefits from her employer. The Court found that because the employer encouraged the employee to form her own limited-liability corporation (LLC) and did not inform her of the negative consequences of giving up her employment status, the employer was liable for unemployment benefits to the employee. The Court’s ruling is significant because it imposes a duty on the employer to inform the employee of possible disadvantages of forming her own LLC, that is, losing her status as an “employee”, uncertainty in obtaining work, and loss of eligibility to receive unemployment benefits.
Distinguishing between an employee and independent contractor can be difficult. If you have questions about your employment status or the status of your employees, contact an Attorney at Neils, Franz, Chirhart for more information.
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