Employment Law Case Notes

• Publication year: 2019
• Author: By Anthony J. Oncidi

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

Employee Non-Solicitation Provision Was an Unenforceable Restraint

AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal. App. 5th 923 (2018)

AMN and Aya are competitors in the business of providing travel nurses on a temporary basis to medical care facilities throughout the country. As a condition of employment with AMN, four of its "travel nurse recruiters" had signed a Confidentiality and Non-Disclosure Agreement (CNDA), which among other things prohibited them from soliciting any employee of AMN to leave the service of AMN for a period of at least one year. After the travel nurse recruiters left AMN and joined Aya, AMN sued them for breach of contract and misappropriation of confidential information, including trade secrets under the Uniform Trade Secrets Act (UTSA). The nurses filed a cross-complaint for declaratory relief and unfair business competition against AMN. The trial court granted the travel nurse recruiters' motion for summary judgment on the ground that the employee non-solicitation provision in the CNDA violated Cal. Bus. & Prof. Code § 16600 (the anti-noncompete statute), enjoined AMN from seeking to enforce it, and awarded the nurses their attorneys' fees. The court of appeal affirmed, holding that the employee non-solicitation provision "clearly restrained [the travel nurse recruiters] from practicing with Aya their chosen profession—recruiting travel nurses on 13-week assignments with AMN." Although the court expressed "doubt about the continuing viability" of Loral Corp. v. Moyes, 174 Cal. App. 3d 268 (1985) (generally upholding employee non-solicitation provisions) following Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008), it was able to distinguish Moyes on the ground that the non-solicitation provision at issue in this case restrained these particular employees from their chosen profession. The court also affirmed dismissal of AMN's UTSA claim on the ground that the nurses who were recruited already were independently known to Aya, and their identity did not constitute a trade secret.

Employer Was Not Liable for Accident Involving Employee Who Was Talking on Her Cell Phone

Ayon v. Esquire Deposition Solutions, LLC, 27 Cal. App. 5th 487 (2018)

Brittini Zuppardo, a scheduling manager for Esquire Deposition Solutions, was talking on her cell phone while driving home from her boyfriend's house when her vehicle struck Jessica Ayon, causing significant injuries. At the time of...