Employee noncompete restrictions are supposed to provide a company with a means to preserve its legitimate competitive interests when an employment relationship ends. But they can also be used by unscrupulous employers to make demands that outside of the guardrails of the judicial system would resemble extortion.

This post discusses a recent example of arguably a frivolous noncompete lawsuit and suggestions for both companies and individuals to consider when it comes to entering and enforcing noncompete restrictions. While our law firm represented the defendant, the information discussed below comes directly from public and non-confidential sources like court filings and non-confidential communications between the parties and opposing counsel.

First, however, a brief explanation about noncompete restrictions; They typically prohibit an employee from working for a competitor, soliciting the employer’s workforce from leaving to join a competitor, soliciting clients from the former employer, or some combination of the preceding. And when these restrictions involve a reasonable scope and restrictive time period, they will often be enforceable.

However, in a recent lawsuit filed by Pogoda Management Co., Inc., against a former employee, Pogoda sought to enforce its noncompete restriction. Pogoda claimed its former employee could not work for a competitor in a geographic area where Pogoda conducts its self-storage business for two years unless approved by Pogoda’s President.

Pogoda is a Michigan-based company. It owns or manages self-storage facilities. Its former employee moved from Michigan to a state where Pogoda had no storage facilities or other business. The former employee also took a position with no responsibility for soliciting business, setting pricing, or managing any storage business in any geographic location where Pogoda conducted business.

Additionally, our investigation in response to Pogoda’s complaint uncovered many statements from Pogoda’s owners about the relevant “competitive area” for its storage facility business as being limited to a radius of only a few miles from a storage facility. All facilities operated by the defendant’s new employer were many miles outside of this competitive area, which provided additional evidence that Pogoda’s noncompete was overbroad and its claim had no merit.

These facts were extensively discussed in correspondence to Pogoda’s counsel written to try to resolve the lawsuit and then to establish a basis for obtaining monetary sanctions against Pogoda and its counsel for filing a frivolous lawsuit, as well as to comply with court requirements for filing a summary judgment motion.

But Pogoda’s attorney repeated he was not interested in discussing the merits (or lack thereof) of Pogoda’s claims. Instead, Pogoda threatened to extract its attorney fees under the noncompete provision, and its attorney even bragged his rate was $695.00 an hour. Further, Pogoda promised to ensure the judge restricted the defendant, the sole income earner for his household, from working.

Pogoda, through its attorney, went on to offer this explanation laughing about how Pogoda’s downside was limited to paying its own attorney fees if it was not successful and “it’s not like we got a thousand of these guys out there,” so if the noncompete gets knocked down,” there is no “precedential” concern. Related to this threat, Pogoda could identify no damages in the form of lost customers, lost business, or any effort by the defendant to solicit Pogoda’s customers, current employees, or the like.

This significant pressure put on someone in the defendant’s position, no matter how remote the chances were, a judge would agree with Pogoda’s claims.

Fortunately, in Pogoda’s haste to extract a quick settlement, it left a lot on the table. Also, after the settlement was reached and confirmed in writing, Pogoda’s attorney advised it had “buyer’s remorse” and would refuse to abide by the settlement terms unless the defendant agreed to reinstate important confidentiality protections and enforcement provisions that Pogoda had waived as part of the settlement. Pogoda eventually backed down when it became clear there was no merit to its position. But for a party and its attorney to even try to make arguments, representations, and claims so contrary to the facts that a settlement was reached and confirmed in writing speaks volumes as to the significance of the mistake.

So with this backdrop, here are a few take-aways for people and companies regarding noncompete enforcement.

  • First, for employees, carefully read and understand the post-employment restrictions you may be asked to sign. You may have no choice but to sign the noncompete if you want to accept the employment opportunity, but at least you can weigh the rewards against the post-employment risks.
  • Second, conduct due diligence on the prospective employer’s history and reputation for enforcing non-compete restrictions. We routinely do this for our clients (individuals or prospective employers seeking to hire someone subject to a noncompete restriction) when assessing noncompete risks. A company with a track record for enforcing or not enforcing noncompete restrictions provides valuable information about assessing noncompete risks and defenses.
  • Third, it is critical to resolve noncompete disputes competently to avoid harming or compromising other aspects of your business. For example, Pogoda agreed to settle its noncompete dispute, but in doing so, it also agreed to waive all contractual obligations, including those protecting the confidentiality of its business information that had nothing to do with the noncompete restrictions.
  • Fourth, this case is a textbook example for why federal and states have proposed or passed legislation to limit the use and enforcement of non-compete restrictions. And the above example should be the poster child for Michigan to revise its noncompete law. Noncompete restrictions – when used properly – have legitimate purposes so an outright ban would be overkill. However, slight revisions to Michigan’s noncompete law would allow employers to continue to protect their legitimate competitive interests while limiting or discouraging the abusive tactics described above. In the coming weeks, we will discuss some of these proposed changes.

On a personal note, I’ve published articles through this Blog for over 10 years. In that time, I’ve avoided personal criticism of attorneys or litigants. Mostly because I like to assume everyone’s just doing their job when it comes to advocating for their clients, even if reasonable attorneys can disagree over the arguable merits of a claim.

But in writing this post, I opted to discuss in more detail the professional frustrations stemming from the Pogoda example. I made this decision because Pogoda and its lead attorney were prepared to renege on a settlement by disclaiming a settlement was reached (despite Pogoda’s attorney’s written email confirming the details of the settlement) and then making arguments that defied credibility in order to alter the settlement terms to revive Pogoda’s confidentiality restrictions from its employment agreement.

Noncompete litigation, like any litigation, is a complex process involving people. And people make mistakes. Accepting this, I would have normally worked with opposing counsel to reach an agreement for options to continue to protect the confidentiality of Pogoda’s business information that would not have compromised our client’s interests. But there comes a point where bad behavior should not be rewarded.

For the past 20 years, Mr. Shinn has represented employers and employees in all aspects of noncompete matters. Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan noncompete law. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above.

Twitter trade secret lawsuit

Twitter made headlines last week with its threat to sue Meta over the launch of its competing service called “Threads.” This incident serves as a reminder that protecting trade secrets and avoiding becoming a defendant in a misappropriation lawsuit is vital to running any business.

Going Deeper:

According to Twitter’s letter to Meta, it has “serious concerns” that Facebook parent Meta hired “dozens of former Twitter employees” in order to build its new “copycat.” Threads app. Meta denied the claim.

Twitter’s attorneys assert Meta allegedly relied on the contributions of numerous ex-Twitter employees who supposedly retained Twitter documents and electronic devices without authorization. This claim comes as Meta introduces its Threads social media app, which was launched on Wednesday.”

Here is an excerpt from the Twitter letter:

“Twitter knows that these employees previously worked at Twitter; that these employees had and continue to have access to Twitter’s trade secrets and other highly confidential information; that these employees oh ongoing obligations to Twitter; and that many of these employees have improperly retained Twitter documents and electronic devices … Meta deliberately assigned these employees to develop, in a matter of months, Meta’s copycat “Threads” app with the specific intent that the use Twitter’s trade secrets and other intellectual property in order to accelerate the development of Mehta’s competing app, in violation of both state and federal law …”

But is Twitter Serious about suing for trade secret misappropriation?

Over the span of two decades, I have represented clients, both in pursuing and defending legal disputes over the misappropriation of trade secrets and confidential information. Based on that experience, Twitter’s claims appear to be more of a display of bravado rather than a legitimate legal threat.

At the outset, Twitter’s threat to initiate legal action in safeguarding intellectual property starkly contrasts the statements made by its owner, Elon Musk, regarding the significance of such assets. Specifically, back in 2014, Mr. Musk vehemently criticized patent protection as being a path for the feeble-minded. He proceeded to assert,

Patents are generally used as a blocking technique they’re like using like land mines in warfare … they don’t actually help advance things … and most patents are bs …


Furthermore, Twitter’s legal representatives neglected to supply fundamental information regarding the former Twitter employees allegedly assigned to Meta’s Threads development team. For example, they failed to identify any agreements claimed to have been violated or provide a description of the intellectual property it accuses Meta of misappropriating. Typically, the party in Twitter’s position will want to make a strong showing out of the gate and establish Meta had knowledge about the alleged wrongdoing, i.e., knowledge the former Twitter employees misappropriated Twitter information and were subject to contractual obligations.

Furthermore, Twitter did not request the return of any supposed trade secrets or confidential information or seek other remedial actions. The inclusion of such demands aims to safeguard the value of the claimed intellectual property and mitigate potential harm from any unauthorized use. It can also provide valuable evidence against Meta if this matter goes to trial.

Recommendations for Protecting Trade Secrets

Regardless of whose version of the truth wins out in this latest keyboard fight match between Meta and Twitter, it’s vital for businesses to protect their trade secrets and avoid getting caught up in a misappropriation claim.

Among such protections, businesses will want to use to protect trade secrets are:

  • Using non-disclosure agreements (NDA): A contract binding two parties to maintain confidentiality of shared information.
  • Institute a policy for employees working remotely which requires that any sensitive information or documents remain on the company’s network or devices. Or better yet, use document management software that limits or creates audit trails of access history.
  • Ensuring trade secrets security, including through encryption, turnover procedures for departing employees, and the like.
  • Employee training on security protocols
  • Limiting access to sensitive documents/systems to essential personnel.

With the proper measures, companies can protect their information and intellectual property from being misused or shared with competitors. By investing in such protective measures, businesses can better mitigate the risk of costly legal disputes and potential damages.

To avoid becoming a defendant in a trade secret misappropriation lawsuit, companies should prioritize adopting best practices when hiring employees with a prior history at a competitor. These practices include:

  • Requiring all newly hired employees to sign a written agreement affirming their commitment not to disclose any confidential information obtained from their former employer.
  • Requesting new employees to provide written confirmation that they have either returned or destroyed all materials received from their previous employer.
  • Developing and implementing a clear trade secret policy distributed to all employees upon hiring.

Educating new hires on the significance of safeguarding confidential information and the potential consequences of trade secret misappropriation.


Twitter’s threat to sue Meta over alleged misuse of trade secrets underscores the importance of businesses protecting their confidential information. This can be done through non-disclosure agreements, employee training, and secure data practices. Trade secret law can provide legal recourse if confidential information is stolen.

With the rise of technology and increased workforce mobility, trade secrets are more vulnerable than ever. Twitter’s recent threat of a trade secret lawsuit serves as a reminder of their importance and the need for businesses to take steps to protect them. For more information about what trade secrets are, the latest developments in trade secret law, and how to develop a comprehensive protection plan for protecting your company’s trade secrets and confidential information, contact Michigan attorney Jason M. Shinn.

In June, Michigan passed anti-discrimination legislation that makes hair discrimination illegal.

CROWN Act prohibits hair discrimination

This new law, officially known as the “CROWN Act” (Create a Respectful and Open World for Natural Hair), amends the Elliott-Larsen Civil Rights Act (ELCRA) to expand the definition of race to ban hair discrimination. It prohibits discrimination based on hair texture or type.

Michigan becomes the 23rd state to sign the CROWN Act into law.


Michigan’s new CROWN Act makes hair discrimination illegal, expanding the definition of race in the state’s Civil Rights Act. The law protects individuals from discrimination based on hairstyle in workplaces, schools, and businesses. Employers should review policies to ensure they don’t disproportionately affect certain racial, ethnic, or cultural groups.

Going Deeper:

Initially passed in 1976, ELCRA prohibits discriminatory practices, policies, and customs in the exercise of those rights based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. The CROWN Act revises ELCRA to protect Michiganders from discrimination by including hair discrimination in the act.

The CROWN Act prohibits employers, educational institutions, and businesses from discriminating against an individual based on that person’s hairstyle, texture, or protective hairstyles. This includes everything from natural afros, braids, dreadlocks, twists, and bantu knots.

Thus, Michigan employers cannot make decisions about hiring, firing, promoting, or otherwise treating someone differently because of the way they wear their hair.

In light of the Michigan CROWN Act, employers should thoroughly review their current policies and practices to remove any hair restrictions that disproportionately affect people of certain racial, ethnic, or cultural backgrounds.

This includes assessing dress codes and personal grooming policies to ensure they do not disproportionately target or disadvantage individuals based on their natural hairstyles. Companies should also update HR training and discrimination reporting to include hair discrimination. Managers must understand that employees have the right to wear their hair however they choose without fear of criticism or repercussions from employers, schools, and other organizations.

If you have any further questions about the Michigan CROWN Act, or need legal advice on protecting your rights regarding hair discrimination, please contact Jason M. Shinn. For twenty-plus years, he has represented employers and employees in Michigan, and federal employment law matters.

Beginning April 11, 2023, some felonies and misdemeanors will be automatically expunged after a certain amount of time under Michigan’s Clean Slate Act. The Law also makes more people in Michigan eligible for expungement through an application process.

Criminal Background Checks and Brian White Embezzlement Example

Andrea Sahouri for the Detroit Free Press explained what convictions are eligible for expungement and details for how the process will work. More information about automatic expungement can also be found here.

For employers, Michigan’s Clean Slate Act does not alter what inquiries may lawfully be made concerning past criminal history. Still, it is essential to understand what is and is not permissible when conducting a criminal background check.

You should consult with an experienced Michigan employment attorney for a full explanation. But in sum, it is lawful for employers to ask:

  • Whether the applicant has ever been convicted of a crime (misdemeanor or felony). But remember, it is unlawful for most all employers (law enforcement agencies are excluded) to inquire about misdemeanor arrests that did not result in a conviction;
  • If so, employers may ask about the details like when, where, and the nature of the offense;
  • Whether the applicant has ever been arrested for or charged with a felony; and
  • Whether there are any felony charges currently pending against the applicant.

Additionally, companies should follow other best practices if they conduct criminal background checks. Among these best practices, an employer must be consistent in making criminal background checks on its employees and applicants. This is because Inconsistent investigation may result in an inference of discrimination against a particular racial or ethnic group.

Should Employers Conduct Criminal Background Checks?

As an attorney advising companies on HR and employment law issues for the past 20 years, I think employers should question the value of conducting criminal background checks – at least across the board for all employees. Here are a couple of reasons:

First, a criminal background offers no protection against future misconduct or criminal actions. You see this any time an employee is arrested for theft or – worse – engages in violence. For example, a bank employee who recently went on a workplace mass killing spree at a Kentucky bank likely went through and passed a criminal background check because of his bank position (according to the Wall Street Journal, a LinkedIn profile showed his job as a syndications associate and portfolio banker).

From my own legal experience, I had a business client whose CFO abruptly resigned after about four years. The resignation happened after suspicious financial transactions were discovered. The CFO denied through his legal counsel doing anything illegal (See proceedings from Oakland County, People of the State of Michigan v Brian Michael White CR #2021-276874-FH). But this same former CFO made this denial after admitting to a Madison Heights Detective that he used the employer’s credit card to pay for his personal medical bills, his daughter’s tuition, and other personal expenses.

These are examples of how criminal background checks are only a snapshot of a person. And that person or the person’s circumstances may change after the background check is completed. Also, criminal background checks may create a false sense of security by replacing an employer’s due diligence in continually monitoring for employee misconduct.

Second, if someone commits a crime but fully completes the sentencing requirements, is it fair or beneficial to continue to keep that person out of the workforce?

We saw this issue recently on display in the Michigan Supreme Court when Justice Bernstein publically criticized his fellow Supreme Court Justice for hiring a clerk who had been convicted 29 years earlier of robbery and shooting at a police officer.

That clerk, however, had fulfilled his criminal sentencing, met all conditions to be paroled in 2008, became an advocate for improved prison conditions, and worked for the State Appellate Defender Office. Yet Justice Bernstein lobbied through the media his belief that this clerk’s 29-year-old conviction disqualified him from working.

Final Thoughts

I can’t say I agree with Justice Bernstein. But as a father, husband, and attorney, there are criminal convictions I don’t think I would ever overlook in making a hiring decision. Drawing that line may not be an easy call, nor should it be.

But too often, no meaningful assessment is made because if there is any conviction, the applicant is rejected. Michigan’s Clean Slate Act will begin to change that for many otherwise qualified job applicants.

Since 2001, Mr. Shinn has represented companies and individuals concerning the abovementioned issues and other employment matters under federal and Michigan employment laws.

Trade secret misappropriationYou may have heard something in the news about a former employee getting caught holding onto his prior employer’s documents after losing his job. This example is unusual, to say the least. And setting aside your political leanings, let’s look at how similar scenarios play out for the rest of us.

The Lawsuit against former employees.

Specifically, on September 7, 2022, Plaintiffs Dearborn Mid-West Company and Dearborn Holding Company, LLC, sued three former employees for violations of the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § §§ 1836 et seq., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., the Michigan Uniform Trade Secrets Act, Mich. Comp. Laws § 445.19021 et seq., as well as breach of contract, common law unfair competition, statutory and common law conversion, and civil conspiracy.

Similar to a certain ex-employee living at Mar-a-Lago Florida, the three former employees decided to hold onto copies of business records after their employment ended.

Specifically, Plaintiffs conducted a computer forensic audit of three former employees’ old computers, which confirmed they had collectively “copied. . . thousands of files containing” confidential and trade secret information by transferring them to external drives and forwarding emails to their personal accounts before leaving their previous positions. For some, this might be described as political theater or a Witchhunt. But for Plaintiffs, they described these actions as a:

… brazen theft and unauthorized use of [Plaintiffs’] trade secrets, proprietary standards, and other confidential competitive information—information that [Plaintiff] created over … 75 years, and through the expenditure of millions of dollars. Defendants’ theft was no accident, and instead the result of a months-long, carefully calculated plan: indeed, the individual Defendants systematically stole tens of thousands of files filled with [Plaintiffs’] confidential, proprietary, and trade secret information before they resigned their employment … and went to work for its competitor.

Before the defendant former employees responded to the lawsuit, the Plaintiffs moved for a temporary restraining order and preliminary injunction, but it was denied. Having litigated these sorts of claims, including seeking the same kind of relief, the denial has very little to do with the underlying merits or likely strength of the case; Temporary restraining orders (TRO) – especially TROs that are sought without the opposing party having an opportunity to respond – require a high-burden to be met. And one or two facts can tip the scale in meeting that burden.

Departing Employees and Protecting Confidential Information.

While the Court denied the requested TRO, it also noted that “Plaintiffs lay out what appears to be a strong case for their underlying claims.” And those claims provide for statutory attorney fees and the means to potentially recoup millions of dollars from the defendants. This might not be a big deal if you are an ex-President, a billionaire, you can convince enough people (i.e., five jurors) that the claims are just a witch-hunt, the case gets assigned to a judge you appointed to the bench or any combination of the preceding. But if none of those factors apply, then you probably should be concerned. And here are two points to consider:

  1. First, there are almost always digital fingerprints left behind if an employee decides to walk out the door with copies of the employer’s business information. So it is vitally important for employers to have plans and procedures in place to preserve and discover such evidence.
  2. Second, for individuals starting a new job or company, there will almost always be digital fingerprints you leave behind if you decide to walk out the door with company information. And even if you are like most departing employees who do not misappropriate business information, it may not matter if you signed a non-compete agreement or other post-employment restriction. So unless you happen to be a former President and billionaire, it is important to know and understand what obligations you may have when your employment ends.

If you have such obligations, then it is important to consult with an experienced non-compete attorney to discuss options for complying with your post-employment restrictions or challenging them if necessary.

Contact Michigan attorney Jason Shinn if you have questions about this article, conducting workplace investigations, or noncompete restrictions. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.

LGBT Employment Discrimination

The Michigan Supreme Court ruled yesterday in a 5-2 decision that Michigan’s main civil rights statute, the Elliott-Larsen Civil Rights Act, prohibits discrimination based on sexual orientation. This means ELCRA’s anti-discrimination protections extend to LGBT (lesbian, gay, bisexual, and transgender) Michiganders.

Going Deeper:

The Michigan Supreme Court decision stems from a lawsuit, Rouch World LLC v Dept. of Civil Rights, filed by two for-profit companies that refused to provide services to LGBT customers. One company, Rouch World, rented property for events and refused to allow a lesbian couple to hold their wedding onsite. The other company, Uprooted Electrolysis, refused to provide services to a transgender woman.

In October 2021, a Court of Claims judge sided with these businesses finding that Michigan’s ELCRA did not include protections for sexual orientation because the term “sex” in the act’s language is so broad.

In rejecting that decision, the Michigan Supreme Court held, “Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex.”

The Michigan Supreme Court relied heavily on the U.S. Supreme Court’s 2020 ruling in a landmark case, Bostock v. Clayton County, Georgia. That case concerned whether the federal Civil Rights Act of 1964 protected people from discrimination based on their sexual orientation and gender identity. The Bostock case also involved a companion case involving a Metro Detroit transgender woman who successfully challenged her firing from a local funeral home for coming out as transgender.

The Bostock opinion held when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, the Court concluded, “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” And this was the same conclusion reached by the Michigan Supreme Court.

And this decision is long overdue. For example, in 2013 I wrote about the need for Michigan law to extend its civil protections under ELCRA to sexual orientation and gender identity. See Sexual Orientation Discrimination and Michigan Law – Is it a Time for a Change? Nine years later, here we are.

What This Means for Employers and Employees.

In 2015 after the U.S. Supreme Court’s ruling in the Obergefell v. Hodges same-sex marriage case, we cautioned employers that Michigan’s ELCRA recognizes marital status as a protected classification – such protections did not exist under Federal law. Thus, Michigan LGBT employees in same-sex marriages had some but not all protections against discrimination under Michigan’s ELCRA.

But now under the ELCRA, sexual orientation is among protected characteristics like race, religion, weight, and marital status. In short, Michigan employers and landlords cannot fire, deny jobs, access to housing, or take other adverse employment action against an LGBT person simply because of who they are.

Further, while Bostock held federal law covered sexual orientation, the Michigan Supreme Court’s decision that Michigan law covers sexual orientation is much more expansive than the Bostock decision reaching the same conclusion about federal law. This is because Michigan’s ELCRA applies to all employers and Title VII applies only to employers with at least 15 employees.

The two dissenting judges raised issues prospective litigants will likely face or used to limit protections for LGBT individuals.

But for now, the best advice I can give Michigan employers is to exercise the same caution and reasoning that should be applied before making any adverse employment decision. This generally means making sure the disciplinary decision stems from a workplace policy violation or poor job performance for which other similar but non-LGBT employees would have been disciplined.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.

On June 9, 2022, Tyson Foods and its subsidiary, The Hillshire Brands Company, were sued over alleged employment discrimination. The lawsuit is by a former employee, Redina Hayslett, who claims she was terminated after refusing the COVID-19 vaccine on religious grounds.

Why it Matters:

We previously predicted companies should prepare for a litigation trend over religious discrimination claims involving Covid-19 vaccine requirements. See The Next (Litigation) Pandemic – Religious Discrimination Claims. This recent suit against Tyson Foods bolsters our conclusion.

It also highlights an added wrinkle for employers: Tennessee elected to pass legislation punishing employers who enforced certain workplace policies involving Covid-19 vaccine requirements. Other states have taken similar steps to interject governmental oversight of private sector HR; Michigan thankfully is not one of those states.

But for companies with operations where state legislators are now looking over their employment policies like Tennessee, avoiding employee Covid-19-related lawsuits is going to be an expensive challenge.

Going Deeper:

In August 2021, Tyson Foods and its subsidiary, The Hillshire Brands Company, made it a condition of continuing employment that all U.S. based Tyson employees would have to be vaccinated against COVID-19. Tyson also required employees to provide proof of vaccination, unless an employee had a documented and approved reasonable accommodations for a disability or sincerely held religious beliefs, practices, or observances.

Plaintiff submitted a religious accommodation request stating that her belief in the power of prayer, faith in Christ, religious freedom, and First Amendment rights prohibit her from receiving a vaccination for COVID-19.

Tyson responded to Plaintiff’s request for religious accommodation with a determination that the only accommodation Defendants could give Plaintiff was an unpaid leave of absence from work for a period of up to one year. Plaintiff eventually responded by suing Tyson and its subsidiary.

Extending Government Oversight to HR:  

Tennessee passed a law in November 2021 prohibiting private businesses and other entities from compelling or otherwise taking “adverse action” against a person relative to providing proof of having received a COVID-19 vaccination if the person objects to being vaccinated “for any reason.”  Thus, under the Tennessee law, it is illegal for employers like Tyson, to take adverse action against a person based on their vaccination status.

Further, Tennessee politicians removed any qualifying or limiting language for what objections must accept, e.g., objections for religious or medical reasons. This means employees with any sort of objection, whether unfounded or frivolous are insulated from discipline. And this sort of broad prohibition in Tennessee and other like-minded states will no doubt fuel employee vaccine-related lawsuits against employers.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals about the issues discussed above and other employment matters under federal and Michigan employment laws. In 2020, Mr. Shinn work was consumed with Covid-19 legal issues, including helping clients understand their rights, vaccine and shut-down orders, and litigating coronavirus issues.

Magic Mushrooms and workplace discriminationLast week Amazon was sued over alleged employment law violations. The lawsuit asserts the plaintiff was unlawfully terminated after reporting a co-worker for using mushrooms that naturally contained an active but illegal psychoactive chemical called psilocybin.

Why it Matters:

Psilocybin and similar psychedelic compounds are considered Schedule I substances. This means they are illegal under federal law and under many state laws, including Michigan. Like medical marijuana usage, with decriminalizing and more research showing psychedelics as a viable therapeutic alternative in treating depression, substance use disorders, and other mental illnesses, employers should expect to see more workplace issues like those involved in the lawsuit against Amazon.


Turning back to the lawsuit, Larkin v. Amazon.com Services, LLC, Case No. 3:22-cv-00942, the Complaint asserts plaintiff reported to Amazon’s Investigations unit that an employee was using the illegal drug, psilocybin mushrooms. Plaintiff alleged he believed the use of the mushrooms was a felony and a workplace hazard to public health and safety. Amazon allegedly did not discipline the employee reported to have used the psilocybin mushrooms. Instead, Plaintiff alleges he became the subject of an Amazon investigation and was eventually terminated. Plaintiff was told his termination was because he failed to disclose an improper relationship between two other Amazon employees — a violation of Amazon’s employee policy.

These are just the allegations in the complaint. No doubt these claims will be thoroughly litigated and contested.

But coincidentally, the same week Amazon was sued for discrimination over psilocybin mushrooms, an initiative to put on the 2022 ballot a proposal asking Michigan voters to decriminalize certain psychedelic plants and fungi was put on hold.

The “Michigan Decriminalization of Psilocybin Mushrooms and Other Plants and Fungi Initiative,” was approved at the beginning of the year by Michigan’s Board of Canvassers. But with only 180 days to gather enough signatures to put it on the 2022 ballot, the group spearheading the Initiative announced they would instead seek to put the Initiative on the 2024 ballot. Here’s a press release from Myc Williams, the campaign manager for the Initiative:

It’s time to refocus our energy. We knew a June 1st deadline make the 2022 ballot was ambitious with just over two months to collect, and now we know we have the momentum necessary to move forward with a normal 180[-day] collection period. We’ll see ya at the polls in 2024.

Decriminalizing Mushroom and Plant Psychedelics and HR

A wealth of research shows that mushrooms containing psilocybin are generally considered physiologically safe and have shown medical benefits in treating depression, substance use disorders, and other mental illnesses. See, e.g., David E. Nichols, Psychedelics, 68 PHARMACOLOGICAL REVIEWS 264, 266 (2016).

Yet these benefits don’t change the illegal standing psychedelic mushrooms and similar compounds are psilocybin. And going back to the lawsuit against Amazon, employers generally need not accommodate an employee’s use of an illegal drug – even if that drug is used to treat a condition that would otherwise be protected under Michigan or federal anti-discrimination laws. Similarly, terminating an employee for reporting illegal drug use exposes an employer to legal liability. And while Amazon will likely contend its termination of the plaintiff was not for reporting illegal drug use or otherwise not unlawful, it will be making that argument in a federal lawsuit.

The tension between using an illegal substance to treat a condition and workplace accommodation laws became a frequent issue for employers when Michigan and many other states began decriminalizing the use of marijuana for medical or recreational use. And given the promise of psychedelics as viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, companies will need to decide how to handle such use by employees. Despite similar medical benefits of marijuana use, it was only after Michigan law largely decriminalized marijuana use did employers move away from workplace policies that strictly penalized marijuana use. Psychedelic compounds would likely follow the same course if legalized at the state level.

On this note, one thing I would like to see on a future ballot initiative to legalize psychedelic compounds is statutory guidance for companies and individuals. One area, in particular, would address the use of natural plants and mushrooms as a reasonable workplace accommodation.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.

Workplace StressThe Michigan Dept. of Labor and Economic Opportunity (LEO) established a dedicated workgroup to focus on mental health, trauma, and resiliency in the workplace. The workgroup recently released its findings. The report also offers strategies for employers to help build supportive workplaces by integrating employee mental health strategies that establish healthier workplaces, enhance employee wellbeing and promote resilient companies

Background for the Working Group’s Recommendations: 

The LEO workgroup consisted of employers, workers, and professionals brought together to discuss how workplaces can implement supportive and empowering strategies, while also highlighting organizational opportunities for better workplace environments.

In sum, the report details the findings of the workgroup and key strategies for employers to help build supportive workplaces by integrating employee mental health strategies that establish healthier workplaces, enhance employee wellbeing and promote resilient companies. Here are five recommendations to help companies focus on overall wellbeing and strategies to reduce workplace stressors that may lead to crisis:

  • Assess Workplace and Culture
  • Consider Workplace Policies, Practices, and Procedures
  • Recommit to Employee Assistance Programs
  • Consider adding or expanding Employee Resource Groups
  • Consider adding mental health to joint employer or employee safety committees

Additionally, the workgroup made recommendations for the State to consider in supporting mental health practices in the workplace. Among these recommendations are:

  • Give preference for businesses incorporating employee mental health improvement strategies through the State’s procurement or grant processes.
  • Offer financial support from the State for businesses to implement employee mental health improvement strategies.
  • Develop a resource hub that allows various groups to access plans, policies, and other information that is being used by employers in Michigan.
  • Continue workgroup efforts that identify specific workplace challenges and opportunities for specific industries (e.g., healthcare, manufacturing, education, service workers, and so on.).
  • Develop Michigan-specific data tools for tracking progress on improving workplace mental health and safety.

Here is a link to view the full report from the Mental Health Workgroup. Also, there is a virtual meeting on Wednesday, June 8 at 2:30 p.m. to learn more about the details of the report. Here is a link to attend that meeting.

Closing Thoughts:

Too often, mental health is either ignored or becomes the focus for scapegoating the most recent tragedy. Hopefully, with this Report, that will begin to change.

In theory, building mental health strategies in the workplace makes sense in attracting employees, promoting a positive effect on employee wellbeing, and helping protect the employer’s bottom line.

In regard to this last point, much of the employment discrimination claims we see often stem from toxic to dysfunctional work environments. Correcting these environments or giving employees resources to respond could go a long way to reducing legal spending for workplace discrimination claims.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.


Trade secret misappropriationA recently filed trade secret misappropriation lawsuit in the Michigan Eastern District Federal Court is a good reminder for both employers and individuals about the dangers stemming from not protecting or wrongfully using confidential or trade secret information.

Going Deeper:

The lawsuit was filed on behalf of Van Dyke Horn LLC, a public relations company. The complaint accuses three former Van Dyke Horn employees of violating their non-solicitation and non-compete agreements and misappropriating confidential information for their new employer and competing venture co-defendant VVK PR & Creative.

Here’s an excerpt from the complaint, Van Dyke Horn LLC v Peter Van Dyke:

This case is about an equity member, officer and high-level executive of VDH, Peter Van Dyke, intentionally diverting and misappropriating trade secrets of VDH and converting assets of VDH, including clients, for his own benefit after failing to force his partner, Marilyn Horn, to sell her interest in VDH to him for pennies. And, Van Dyke was not working alone. Van Dyke was conspiring with VDH competitors, Sherman and Walters, to take VDH trade secrets and business for their own and a competing company, VVK, they were in the process of forming. In fact, Van Dyke was so brazen and felt so entitled that while he was still an equity member of VDH with fiduciary duties owed to it, he secretly solicited and convinced several VDH’s key employees to join him and the other Defendants in their secret scheme, all the while knowing that these same employees had restrictive covenants in their VDH employment agreements, and tried to convince prospective VDH staff to reject their offers from VDH and instead join VVK. Days before resigning from VDH, Van Dyke secretly loaded up VDH client files and corporate information into two large zip files and emailed them to his personal email so that he and Defendants could utilize them to compete.

* * *

Indeed, the focus of their secret business plan, which was found after a search of Peter Van Dyke’s VDH issued computer, was to convert VDH clients and the contracts they renewed each year to their competing company, VVK.

Why this lawsuit matters to employers and departing employees:

Of course, it bears remembering there are usually three sides to every story (the plaintiff’s, the defendant’s, and the story the judge or jury believes). And certainly, the Defendants will have their story to tell (as of this post, no response to the complaint was filed).

But even at this early stage, two important universal truths relating to the lawsuit are worth discussing:

  • First, employers must be hyper-vigilant about protecting their confidential, proprietary, and trade secret information. And that protection must be done ahead of time. For instance, the plaintiff, in this case, alleges its business information was protected by post-employment restrictions found in employment with agreements, the company’s operating agreement, and non-compete protections.
  • Second, exit interviews can be critical for discovering red flags about potential misappropriation. Here, the complaint explains the plaintiff asked the main defendant (Peter Van Dyke) before his employment ended to sign a declaration confirming he returned all property and confidential information. This declaration was obviously drafted by legal counsel because it expertly included important points and admissions that would be useful in prospective litigation over the misappropriation and use of the company’s property. Not surprisingly, Van Dyke refused to sign it. And not surprisingly, this refusal raised suspicions that resulted in uncovering evidence of the defendants’ scheme.

Closing Thoughts:

I’ve represented clients – both businesses and individuals – in trade secret misappropriation and noncompete disputes for about 20 years. And I am still surprised how often smart individuals will overlook the importance of digital evidence.

In this regard, the Van Dyke Horn complaint is full of references about digital fingerprints pointing to defendants’ wrongful conduct, e.g., zip files, emailing business information, and (if true, incredibly dumb), storing the details for how the defendants intended to wrongfully compete against their former employer on the employer’s company laptop.

And employers often neglect digital evidence too. For example, I’m representing a defendant in a non-compete dispute pending in Oakland County Circuit Court. The plaintiff and former employer, Save-On Everything, has made various representations about the misappropriation of its confidential or trade secret information. Yet our defense has shown these representations have no factual or legal merit.

For example, Plaintiff’s President, Heather Uballe, was forced to admit at her deposition that the company has no evidence to support the claim:

  • Question: The Amended Complaint, paragraph 14, referenced Save On’s confidential information includes prospects, opportunities, programs, including advertising, et 11 cetera …? Why is this information in
    here about the confidential information? How does it relate to your lawsuit?
  • Answer: It’s to prevent … [i]t from taking place.
  • Question: But you’ve already told me that he didn’t take [it]. You have no evidence that he took it. Your attorney said so as much.
  • Answer: Through today, yes.
  • Question: How would he go back and get the information if he’s no longer employed?
  • Answer: I’m not sure.

Under a court order, Save On has already paid over $1,400.00 in monetary sanctions in its lawsuit for other frivolous representations made in the lawsuit. And more sanctions may be on tap if Save On persists in making fact-free claims about misappropriation.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.