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Legal aid as important for economy as hospitals and school

Increasing access to justice can be a ‘win-win’ for businesses, IBA-World Bank report claims

Improving legal aid services is as important for economic growth as providing functioning hospitals, schools and roads, the International Bar Association (IBA) and World Bank claim.

The jointly produced report, A Tool for Justice: A Cost Benefit Analysis of Legal Aid, looked at more than 50 cost and benefit studies of legal aid programmes and found that increased access to justice can be a “win-win” for businesses, the economy and society at large.

The report, launched this week at the IBA conference in Seoul, South Korea, argues that failing to provide adequate legal aid does not save money, but simply shifts the financial burden to other areas of government spending such as healthcare, housing, child protection and imprisonment.

For example, the report cites a study in Canada which estimated the costs of unequal access to justice on public spending in other areas (employment insurance, social assistance and healthcare) to be roughly 2.35 times more than the annual direct service expenditures on legal aid.

The latest comments from across Legal Cheek

“Unaddressed legal needs affect individuals, their families, the justice system, the economy and society as a whole,” commented Lucy Scott-Moncrieff, a member of the IBA Access to Justice and Legal Aid Committee. “As a profession we must continue to champion legal aid programmes and ensure that everyone has the opportunity to access justice.”

The report further claims that around 5.1 billion people — roughly two-thirds of the world’s population — lack “meaningful” access to justice, the result of which can lead to people becoming trapped in “vicious cycles of poverty, inequality and marginalisation”.

Georgia Harley, senior governance specialist at the World Bank, added: “Legal aid is undeniably good economics. Strengthening legal aid and related services increases access to justice and ensures that the rule of law is upheld. Most importantly, improving legal aid programmes saves government money and strengthens the economy in the long term.”

The report’s release follows the Labour Party’s pledge to provide free legal training for 200 lawyers specialising in areas such as benefits, debt, housing, employment and immigration.

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Emma Watson

Harry Potter star Emma Watson launches legal advice helpline

Free service includes guidance on NDAs and settlement agreements

A free helpline backed by British actor and activist Emma Watson will offer free legal advice to women in England and Wales who have experienced sexual harassment at work.

The expert guidance is supplied by legal charity Rights of Women, whose female volunteers and employment lawyers will offer callers guidance on what behaviour constitutes sexual harassment, how to bring a claim at an employment tribunal, as well advice on settlement and non-disclosure agreements (NDAs).

Kickstarted from donations from members of the public, including Watson, the specialist service enjoys backing from Time’s Up UK Justice and Equality Fund, and is managed by Rosa, the UK Fund for Women and Girls. It stands as the UK’s only free legal helpline for women facing sexual harassment in the workplace.

The new dedicated telephone line follows findings by the Trades Union Congress (TUC), a federation of trade unions in England and Wales, that as many as one in two women experienced sexual harassment at work.

“While sexual harassment is one of the most common forms of violence against women, it has remained a hidden issue with many women believing it was an inevitable part of their jobs or that it would jeopardise their careers to assert their legal rights,” explained Seyi Newell, a senior legal officer at Rights of Women.

By plugging the gap in workplace protection, it is hoped that women will be empowered to hold their harassers and employer to account. Harry Potter star Watson said:

Understanding what your rights are, how you can assert them, and the choices you have if you’ve experienced harassment, is such a vital part of creating safe workplaces for everyone, and this advice line is such a huge development in ensuring that all women are supported, wherever we work.

In the wake of the global #MeToo movement, which has seen women come forward with their stories of sexual harassment and sexual abuse, Watson regards this service as a step in the right direction. She continues:

“It finally feels like people are realising the scale of the problem, and I’m certainly hopeful that with global standards such as the recent International Labour Organisation treaty on harassment at work, we’ll start to see a new climate of prevention and accountability on this issue domestically.”

A rise in the number of sexual misconduct cases across the legal profession has resulted in an increased workload for the Solicitors Regulation Authority (SRA), according to a recent report.

The regulator has also recently faced mounting pressure from MPs to clampdown on the ‘cover-up culture’, which sees lawyers draft up questionable NDAs to prevent alleged victims of sexual assault or harassment from speaking out.

Merritt J. Green

Brief Survey of Non-Compete Law impacting East Coast States

There has been a recent trend of states moving to limit the application of restrictive covenants, especially post-employment non-compete agreements, on employees.  Within the past year, Maryland, Maine, Massachusetts, and New Hampshire have all passed legislation restricting the enforceability of non-competition agreements against low-wage earning employees.  This is a growing national trend that all attorneys should monitor.  

Provided below is a brief survey of states with laws restricting non-compete agreements and general guidelines for other East Coast states.    

Connecticut:   No state legislation restricting non-compete agreements.  Case law holds that a covenant must be reasonable as relevant to time period, geographic scope, ability of employee to earn livelihood, protection to employer, and public interest.

Delaware:  No state legislation.  Case law holds that a covenant must be reasonable to be enforceable balancing legitimate interests of employer, ability of employee to earn livelihood, and public’s interest.

Florida:  Florida statute 542.335 requires that non-compete agreements be reasonable and necessary to protect the legitimate interests of the employer.  Case law applies balancing test.

Georgia:  Georgia Code 13-8-53 provides, in relevant part, that post-employment contracts that restrict competition shall not be permitted against any employee who does not, in the course of his or her employment:  

(1) Customarily and regularly solicit for the employer customers or prospective customers;  (2) Customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others; (3) Perform the following duties: (A) Have a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (B) Customarily and regularly direct the work of two or more other employees;  and (C) Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees;  or (4) Perform the duties of a key employee or of a professional.

Maryland:  On May 25, 2019, Maryland enacted SB 328, which prohibits employers from entering into non-competition agreements with employees who earn equal to or less than $15 an hour or $31,200 annually. Under this new law, for employees earning wages at or below this threshold, non-compete agreements that “restrict[] the ability of an employee to enter into employment with a new employer or to become self-employed in the same or similar business or trade shall be null and void as being against the public policy of the State.”  The law becomes effective October 1, 2019.

Maine:  As of September 18, 2019, Maine employers are prohibited from having non-compete restrictions for any employee earning at or below 300% of the federal poverty level.  Furthermore, for all employees, no non-compete can take effect before the employee has worked at least one year, or six months after signing (whichever is later). And, employee must be provided three (3) days to consider before signing non-compete.

Massachusetts:  Effective October 1, 2018, Massachusetts banned non-compete restrictions for anyone classified as a non-exempt employee.  To be enforceable, a non-compete agreement must also, be in writing, be signed by both employer and employee, must advise employee of right to seek legal counsel before signing, and must be provided to employee with employment offer or ten (10) business days before the state of employment, whichever is earlier.  A “noncompetition agreement” is defined as “an agreement between an employer and an employee, . . . under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employer after the employment relationship has ended.”  

New Jersey:  The New Jersey legislature has considered bills to restrict employer use of non-compete agreements, but nothing has passed yet.  Courts will enforce non-compete agreements that are reasonable in scope and duration.

New Hampshire:  passed legislation outlawing non-competes for “low wage” workers, defined as hourly rate that is less than or equal to 200% of federal minimum wage ($14.50 per hour).  This law takes effect in September 8, 2019. A “noncompete agreement” is defined as “an agreement between an employer and a low wage employee that restricts such low wage employee from performing:  (1) work for another employer for a specified period of time; (2) work in a specified geographic area; or (3) work for another employer that is similar to such low wage employee’s work for the employer who is party to the agreement.”

New York:  No laws prohibiting non-compete agreements.  A non-compete is only allowed and enforceable to the extent it (1) is necessary to protect the employer’s legitimate interests, (2) does not impose an undue hardship on the employee, (3) does not harm the public, and (4) is reasonable in time period and geographic scope.

North Carolina:  Courts will enforce non-compete agreements if supported by consideration, reasonable about time and territory, and designed to protect legitimate business interest.

Pennsylvania:  No legislation controlling.  Will be enforced if supported by consideration and reasonable to rights of employer, employee and public interest.

Rhode Island:  The Rhode Island legislature passed noncompete law on July 11, 2019 (it is not effective yet, still waiting on governor’s signature).  The law will prohibit non-compete agreements with low-wage employees with average annual earnings of less than 250% of the federal poverty level.

South Carolina:  Non-compete agreements will be enforceable if supported by consideration and are reasonable in not over-reaching employer’s legitimate business interests nor overly burdening employee’s ability to earn a livelihood.

Vermont:  No legislation restricting non-compete agreements.  Will be enforced if reasonable.

Virginia:  Non-compete agreements will be enforceable if supported by consideration and are reasonable in not over-reaching employer’s legitimate business interests nor overly burdening employee’s ability to earn a livelihood.

Conclusion:  Post-employment non-compete agreements are either being outlaws or facing greater judicial scrutiny.  Employers should utilize them sparingly. However, employers still can protect confidential information and client relationships.  Accordingly, attorneys should focus clients on Confidentiality Agreements, trade secret protection, and non-solicitation restrictions (both protecting employees and clients).

Most importantly, whenever considering any post-employment restriction, to be enforceable, it should narrowly define the post-employment restriction to protect the legitimate interests of the employer, in relationship to the services the employee provided the employer during employment, and his or her post employment opportunities.

Merritt Green, General Counsel, P.C.  mgreen@gcpc.com –703-556-0411