To:Allen Greene & Mary Jane – Managers and owners
From:Student Name – Intern Greene’s Jewelry
RE:Memorandum On the Case of Jennifer Lawson’s Breach of ConfidentialAgreement
May 30, 2016
JeniferLawson, a former employee of Greene’s Jewelry, is being sued by thecompany. The case is dubbed Greene’s Jewelry Wholesale, LLC v.Jennifer Lawson (2016). From this point on, Jennifer Lawson will bereferred to as the Defendant while Greene’s Jewelry is theComplainant. The Complainant was started in 1957 and is situated inDerry, New Hampshire. In Derry, the Complainant has two storefrontsand a warehouse. It employs 502 people and deals primarily inEver-Gold, a synthetic gold-colored material. The Complainant has apatented process for the creation of this material and use it inmaking their jewelry including rings, earrings, necklaces andbracelets. The process is patented by the United States Patent andTrademark Office (PTO). The material is resistant to discoloration,scratches and oxidization. It is directly responsible for the successof the Complainant’s business.
TheDefendant was formerly a junior executive secretary to theComplainant for three years in the department of research anddevelopment. Even though she had a reputation for lateness, she wasefficient in delivering her duties. She was therefore deemed asprofessional, diligent, skilled and articulate in her roles in thecompany. The Complainant terminated her upon elimination of theposition due to a downsizing that the company was undergoing at thetime. Unfortunately, as a coincidence, the Defendant had gone toconsult Lisa Peele, the Complainant’s head of human resources. Shehad recently discovered that she was pregnant and was anticipatingsome high-risk factors she would face during her pregnancy.Therefore, she had gone to ask for permission to take some more timeoff besides her routine 15 to 30 minutes lateness. A letter oftermination notice had already been drafted and was to be sent to herby Lisa the same day. The draft letter is available and can bepresented before the judge as evidence.
Asshe left the company, the Defendant most likely stole a draftdetailing the secret process for the creation of Ever-Gold. Thedefendant gained employment with the Complainant’s competitor,Howell Jewelry World and is thought to have disclosed the secret andpatented information to her new employer. Considering the newproducts that Howell Jewelry World released into the market recently,it is apparent that the company slightly modified the process so thatit cannot violate the Complainant’s patented process.
Duringher employment with the Complainant, the Defendant had signed aNon-disclosure Agreement, in which she agreed not to disclose anyinformation with regard to the Complainant’s processes or products.By disclosing the information about the process followed in creatingEver-gold, the Defendant violated the agreement.
TheDefendant has also filed a lawsuit against the Complainant statingthat she was unlawfully laid off by the Complainant. However, itshould be noted, as has already been mentioned, that the Complainanthad already planned to eliminate the position of a junior executivesecretary in a downsizing strategy prior to the Defendant’sannouncement of her pregnancy to the head of human resources. She wasto be given a letter of termination notice on the same day, afterwhich she would serve the Complainant for another two weeks accordingto her contract with the company. Her announcement, therefore, had noinfluence on the Complainant’s decision. There is no public policythat was violated by the Complainant by dismissing the Defendant fromwork.
Greene’sJewelry legal department have a strong belief that the Complainanthas a good standing in the lawsuit against the Defendant due to herviolation of the non-disclosure agreement. It is also believed thatthe claims of the Defendant about wrongful dismissal does not haveany firm standing. Her claims will be appropriately dismissed oncerelevant discoveries and documentations, including the drafttermination notice, have been presented before the judges.
TheDefendant’s strongest case is her claim that the Complainant laidher off wrongfully because she announced that she was pregnant andrequired more time off. She is therefore accusing the WorkerAdjustment and Retaining Notification Act (WARN Act) (Addison &Blackburn, 1994). However, her accusations are unverifiable becausethe board had already decided to downsize by eliminating the positionthat the Defendant held. Letters of termination notice had alreadybeen drafted and were to be sent to the position holders.Furthermore, the Defendant still had two weeks to serve the companybut chose to pack her things and leave. According to her contractwith the company, after serving the company for more than six months,in case the company wished to terminate her services, she was to beissued with a two weeks’ notice. Therefore, the company did notcommit any employment discrimination or unlawful termination (Addison& Blackburn, 1994).
Duringher contract with the Complainant, it was her duty to report to workearly and ensure that she delivered quality work. Even though thelady worked diligently and her work was commendable, she was alwayslate. Therefore, she is the one who had acted unfairly to thecompany. Upon learning about her pregnancy, she was congratulated.However, the head of human resources saw this as a chance to give herthe termination notice. This in no way violates the operativeemployment and contract law. Her suit cannot hold because the companycan present a termination notice which had been prepared for theDefendant before the court.
Whenbeing hired by the Complainant, it was mandatory for the Defendant tosign a non-disclosure agreement, agreeing never to reveal any secretsabout the Complainer’s trade. However, after her dismissal, theDefendant intentionally submitted a draft containing information thatis confidential from the Complainant to a competitor. It is obviousthat she traded the information about Ever-Gold with Howell JewelryWorld, thereby violating the non-disclosure agreement she had signedby the Complainant. In so doing, she acted illegally, according tothe New Hampshire Trade Secret Law (Bone, 1998).
Severallaws and case precedents have been prepared by the legal departmentof Greene’s Jewelry. The Greene’s Jewelry Wholesale, LLC operateson an “employment-at-will” basis, which is operational in NewHampshire. This means that the company has the right to terminate anemployee any time without issuing a notice and without providing thereason for termination. It was legitimate for the company to askJenifer Lawson to sign a contract and the non-disclosure agreement.These were essential for enforcing the terms of at will employment.It is not permitted for employees or employers to breach thecontracts of employment or the agreements. It is permissible for theemployer to dismiss at will employees on the basis of job-relatedproblems or problems that are not related to the job. A terminationmay seem unfair but wrongful termination may not apply if it is notillegal. A termination may only be wrongful incase an employer laidoff an employee by violating the New Hampshire (or Federal)discrimination law, the provisions related to employment within theFair Credit Reporting Act or Bankruptcy Act, or the rights providedby the U.S. Constitution First Amendment.
Itmay also be wrongful to terminate an employee upon insufficientcause. However, the Complainant did not violate any of the above lawsin terminating the Defendant. The cause for dismissal was thedecision of the company to reduce its size by laying off someemployees.
TheNew Hampshire Trade Secret Law, which was adopted from the UniformSecrets Act of the federal government, safeguards themisappropriation of the trade secrets of companies. The disclosure orobtaining of the secrets of a company with regard to trade withouttheir consent is what is referred to as misappropriation. Consideringthe actions of the Defendant, she violated this law (Bone, 1998).
TheEconomic Espionage Act (1996) dictates in Title 1 how trade secretsshould be protected (Bellocchi, 2001). As an employee in a juniorposition of the company, the Defendant is not expected to have gainedany information about the process of making Ever Gold. It istherefore believed that she obtained the document through fraudulentmeans, most definitely theft. This way, she violated the laws laidout in the act.
Smithv. Mardana Ltd. (2005). In 2005, Smith filed a case in court againstMardana Ltd, his former employer, after laying him off. He statedthat he had been wrongly laid off in a discriminative manner. Thefirst reason he had been given was that he had refused to assist afellow employee to accomplish a task. Upon seeking furtherclarification, the management stated to him that he had been laid offon the basis of the lack of work for him. However, after he was laidoff, a new employee was brought in to occupy his position("Smithv. Ontario (Human Rights Commission)", 2016). This case can beused to prove the legitimacy and clarity of the Defendant’s layingoff. Her former position was cut off in order to minimize theoverhead costs that the company is incurring thus increasing thecompany’s profits. The post has since not been filled. It is arequirement that during laying off, superiority must be consideredand not competency, experience or qualification. This is what theComplainant did. Considering these facts, there is a high chance thatwe are going to win the case.
Kimberlyet al. v. Johnson Controls Limited (Partnership) and Johnson ControlInc. Kimberly et al. accused Johnson Controls Limited and JohnsonControl Inc. for laying them off without giving them notice to applyfor retirement and pension while other employees received the notice.Upon closure, the employees were left stranded and ran to court toappeal for redress. The court decided that the company had actedwrongfully and Kimberly et al. were given a chance to apply forretirement and pension benefits ("Settlementsand Tribunal decisions 2006-2007", 2016). In the case of theComplainant, there is a draft letter that the Defendant was to begiven. She does not have it in her possession by choice. Consideringthe nature of her employment relationship with the company, Greene’sJewelry reserve the right to lay her off any time without providingany notice or reason.
Factsto be Determined
Thereis a high likelihood that Greene’s Jewelry will win the case.However, there are certain facts that have to be determined to ensurethis success. Some of the facts are as listed below.
Thenon-disclosure that was signed by the Defendant should be presentedas exhibit. This will help in establishing that the Defendantviolated the agreement intentionally. The minutes to the boardmeeting where it was decided that junior executive secretary positionwas to be eliminated in order to reduce the overhead costs to thecompany will also need to be made available. The document will helpin proving that the Complainant had no other motive for laying offthe Defendant. It will also help in determining that the pregnancyannouncement by the Defendant did not influence the decision by theComplainant. The minutes should be accompanied with the financialrecords of the company showing that the Complainant needed todownsize at the time of the Defendant’s laying off.
TheHowell Jewelry World’s documents detailing their process forproducing their new product should be subpoenaed. These documentswill help in revealing that the Defendant had submitted the companywith the secret process of Ever-Gold. Considering the case that theDefendant filed in court against Howell Jewelry World, it is clearthat she had used the information to secure a job with them. TheDefendant’s statement to the court against Howell Jewelry Worldshould also be legally obtained from the court to be used as anexhibit proving this fact. The Howell Jewelry World who had securedsome skin complications after using their product can also besummoned to the court and can testify to the shift in the quality ofthe company’s products. The products of both companies should alsobe obtained from the market and compared to determine the similarity.
Addison,J. & Blackburn, M. (1994). Policy Watch: The Worker Adjustmentand Retraining Notification Act. JournalOf Economic Perspectives,8(1),181-190. http://dx.doi.org/10.1257/jep.8.1.181
Bellocchi,L. (2001). Assessing the Effectiveness of the Economic Espionage Actof 1996. InternationalJournal Of Intelligence And Counterintelligence,14(3),366-387. http://dx.doi.org/10.1080/08850600152386855
Bone,R. (1998). A New Look at Trade Secret Law: Doctrine in Search ofJustification. CaliforniaLaw Review,86(2),241. http://dx.doi.org/10.2307/3481134
Settlementsand Tribunal decisions 2006-2007.(2016). OntarioHuman Rights Commission.Retrieved 31 May 2016, fromhttp://www.ohrc.on.ca/en/news_centre/settlements-and-tribunal-decisions-2006-2007
Smithv. Ontario (Human Rights Commission).(2016). Larryhubich.ca.Retrieved 31 May 2016, fromhttp://larryhubich.ca/LabourLaw2009/Cases/Smith%20v%20Ontario%20Human%20Rights%20Commission%20377.HTM