What is garden leave?

What is garden leave (also known as ‘gardening leave’)?

The term sounds pastoral, but its use is practical. Very simply, it is an agreed-upon period when an employer pays a departing key employee not to work before the employee joins a competitor.

Originating in England, it means that the employee is to stay “in the garden” for the term of the leave.

Garden leave is similar, but not identical, to other contracts where an ex-employee is paid in lieu of working for a competitor. On occasion, an employer agrees to a “safety net” or “bench pay” and pays the ex-employee’s salary  for the length of a non-compete. The ex-employee must first show that the noncompete prevents them from obtaining suitable work. Garden leave, by contrast, is unconditional. Also, in garden leave, the employee remains on the payroll; in a “bench pay” situation, the employee has already left.

While the employee is on garden leave, the previous employer has the opportunity to contact the departing employee’s customers in an attempt to retain them. The departing employee has what amounts to a paid vacation and must not work for a competitor during this period. Once this period ends and the employee starts with the new firm, it is open season: both the departing employee and the old employer may solicit and pursue business freely.

How long does it last?

Garden leave can range from several months through a year. During the leave period, the employee does no work for either the old employer or the prospective employer. The employee defers the start date with the new employer until the end of the leave period.

Who uses it?

Garden leave is used most often in the investment banking and financial service sectors. In effect, it takes the place of non-competition and non-solicitation agreements. Many of the firms using garden leave are in the Northeast and Mid-Atlantic regions. During the past ten years, courts in these areas have begun to deal with garden leave provisions. This trend is likely to continue.

What are some of the advantages and disadvantages of garden leave?

The employer gains a brief period when only the employer can contact the departing employee’s clients without fear of competition from the employee. However, this period is far shorter than the periods that courts have found to be reasonable in enforcing non-competes.

The employee bears the burden of separation from customers and the possible stigma of not being active in the industry for a brief period. In exchange, the employee knows that, after expiration of a much shorter restrictive period, the former employer’s customers are fair game.

The employee must realize that the no-contact rule during garden leave is very important. Because the employee is still on payroll, any attempt by the employee to divert business to a new firm would violate multiple obligations, including the garden leave contract itself; the duty of loyalty that employees owe to employers; and possibly the obligations to preserve confidential employer information and trade secrets.

Why do employers use garden leave?

Garden leave has the benefit of being a less costly, more certain way to sever ties with an employee who poses a competitive threat.

Its use depends on an ex-employers motivation to pursue and secure business that might otherwise migrate with the departing employee. The goal for the employer becomes how to retain this business. This is a more positive focus than the that of non-compete litigation, where the goal is to keep the departing employee from retaining customers or entering into competition.

If you are in need of legal advice related to garden leave or any other employment law matter, please contact Thomas D. Rees at 610-275-0700 or trees@highswartz.com.

Thomas Rees moderates child custody disputes and education law seminar

Thomas Rees | Employment and Education Law | High SwartzOn Monday, October 29, 2018, Thomas Rees moderated a Montgomery Bar Association (MBA) seminar entitled, “The Intersection of Child Custody and School Law,” in Norristown, PA, a city located in the Greater Philadelphia Area. The seminar discussed a list of issues related to education law that may be of concern during child custody disputes.A panel of family attorneys and education law attorneys, including Thomas Rees—a High Swartz attorney—addressed issues directly related to children, parents or guardians, and schools, during child custody disputes. Some of these issues included custodial rights and educational decision-making, student residency, access to the child or student, student records, the subpoena of school employees, and the implications of dealing with difficult or disruptive parents.Thomas Rees is the head of the litigation and employment law practice at High Swartz, a full-service Greater Philadelphia Area law firm. The primary focus of his practice is litigation and non-litigation matters in employment law and private education law.His experience in education law is extensive and includes the representation of several independent schools in the Philadelphia area on employment, student discipline, contract, governance and tax exemption matters. The High Swartz education law practice provides a full range of legal services to educational institutions in the Greater Philadelphia Area.

William Kerr among 2018 Best of the Bar Honorees for Real Estate

William Kerr, a Partner in High Swartz’s Norristown, PA office, has been recognized by the Philadelphia Business Journal as one of the 2018 Best of the Bar Honorees for his work in Real Estate.The Best of the Bar Awards annually recognizes a lawyer’s professional work, with this year’s awards focused from June, 30 2017 to present.  Attorneys are judged based on the quality of achievement, which includes the business and/or legal significance, size of the result, and the impact of their work.Mr. Kerr is a real estate lawyer in Norristown, PA—a Philadelphia suburb—with more than 23 years of experience in real estate law.  Mr. Kerr’s real estate practice focuses on zoning, land use and land development, real estate taxation, real estate transactions, title issues, code compliance, and eminent domain.  He has particular expertise in the affordable housing industry, including tax assessment issues related to affordable housing properties.Mr. Kerr was part of the affordable housing industry group that effectively pursued an amendment to Pennsylvania’s assessment law as it affects affordable housing.Mr. Kerr’s clients consist of developers, property managers and property owners of properties ranging from a single or multi-family residential home to hotels, shopping centers, commercial and airport properties, and much more.A 2018 Best of the Bar Awards ceremony will be held to recognize all honorees. The event will be hosted by the Philadelphia Business Journal on October 25, 2018 and held at the SugarHouse Casino Events Space.

Teen driver safety in Pennsylvania

Having recently represented a teen driver who had received a traffic citation, I was presented with a letter she had received from the Secretary of Transportation of the Commonwealth of Pennsylvania covering traffic laws and driver safety.In that thoughtful letter, the Secretary of Transportation reminded her that “personal responsibility and knowledge of our traffic laws are major parts of [being] a safe driver.”It was further noted that:
  • a traffic violation doubles your risk for being involved in a car crash
  • at highway speeds, your car travels the length of a football field in a couple of seconds
  • a moment of carelessness or distraction can quickly become a tragedy
  • not paying attention to the road or careless decisions while driving can cause serious injuries or death to you and to those around you
  • car crashes are the leading cause of death among 16 to 20 year olds
My client’s parents were asked to encourage their teenage driver to improve her driving performance in the future and were also reminded that they had the right to withdraw consent of their young driver’s license until the age of 18!The letter also directed us to additional traffic and driver safety information which can be found on the Pennsylvania Department of Transportation’s (PennDOT) website. There, one can find a great deal of interesting, although often quite disturbing, details. I would encourage you to visit that site when you have some free time on your hands, but I will share some of those statistics with you now.However, before we focus on traffic crash figures, I have one question, the answer to which you will find at the end of this blog. In Pennsylvania, there are approximately 2,500 municipalities throughout the 67 counties, but which is the only official “town?”

Traffic and driver safety statistics in Pennsylvania

Pennsylvania Department of Transportation’s website reported that, in 2015, there were traffic-related deaths in Pennsylvania arising from various circumstances, including:
  • 459 fatalities involving hitting a fixed object
  • 413 fatalities involving unrestrained occupants of a motor vehicle
  • 306 fatalities involving drinking drivers
  • 179 motorcycle fatalities
  • 153 pedestrian fatalities
  • 119 fatalities involving aggressive drivers
  • 66 fatalities involving distracted drivers
  • 23 fatalities in work zones
PennDOT has also published a booklet of 2017 Pennsylvania Crash Facts & Statistics which contains the following information:
  • Pennsylvania has over 120,000 miles of roads and highways
  • In 2016, there were approximately 101.1 billion vehicle miles of travel on those roads and highways
In its “Overview,” the Pennsylvania Department of Transportation notes that (based on 2017 data), on average, each day:
  • 351 reportable traffic crashes occur (about 15 per hour)
  • 3 persons are fatally injured in traffic crashes (one every 8 hours)
  • 221 persons are injured in reportable crashes (about 9 per hour)
Based upon Pennsylvania’s population in 2017 (12,805,537), this would mean that:
  • 1 out of every 44 people was involved in a reportable traffic crash
  • 1 out of every 11,263 people was fatally injured in a crash
  • 1 out of every 159 people was injured in a crash

Teen and young driver safety statistics in Pennsylvania

PennDOT reports that, in most age groups, male drivers are involved in more crashes than female drivers. In fact, male drivers aged 21 to 25 were involved in more crashes than drivers in any other age group—male or female. Regrettably, in that age group, 31% of all driver fatalities were drivers who had been drinking.It was also noted that, although adverse weather and road conditions negatively affect vehicle handling and driver sight, the vast majority (80.2%) of all crashes occurred under no adverse conditions. This has been attributed to:
  1. the fact that weather and roads are clear and dry most of the time; and
  2. the reality that drivers fail to use caution under even optimal road conditions. It is also reported that more crashes occur during daylight (probably because there are more vehicles on the road at this time).
As the Pennsylvania Department of Transportation points out, every traffic crash involves 3 different elements:  the driver, the roadway, and the vehicle. It is reported nationally that 85-90% of all traffic crashes involve some sort of driver error which contributes to the crash. Of all the different age groups represented, the teen driver is one that stands out most. Teen drivers (age 16 to 21) are not only the least experienced drivers, but they are also prone to what has been described as “overzealous” driving. Again, 18% of the driver fatalities in the 16 to 20 age group were drinking drivers.We are now in and approaching that time of year when most traffic crashes occur—October, November, December, and January. More crashes occur on Friday and Saturday and the number of fatalities which occur on the weekends (Saturday and Sunday) is proportionately greater than the number of crashes (which could be attributed to alcohol use).So, let’s take a moment to remind ourselves—and also our teen drivers—of the importance of being safe in order to avoid being sorry.Toward that end, PennDOT offers the following tips for teen drivers:
  • always wear your seat belt
  • do not eat or drink while driving
  • do not talk or text on your cellphone while driving
  • obey the speed limit—driving too fast gives one less time to react
  • adjust radio and climate controls before beginning your trip
  • leave early—give yourself plenty of time to get there
  • expect the unexpected—you never know what might happen
  • and many others
We certainly hope you never face a traffic crash or a situation involving serious injury as a result of a motor vehicle collision or otherwise.However, if this does occur, please be sure to contact myself, Eric Marttila, or one of our experienced personal injury attorneys—located in the greater Philadelphia area—to fully explore your legal options and to seek all available remedies to be made whole.By the way, the Town of Bloomsburg in Columbia County is the only official “town” in the Commonwealth of Pennsylvania.

Melissa Boyd supports fight against gender discrimination with MCCWF

Melissa Boyd (Norristown, PA), a family law Partner at High Swartz, recently moderated a panel at the annual Montgomery County Commission on Women and Families (MCCWF) Awareness Event, an event held in Norristown, Pennsylvania (a Philadelphia suburb), that is focused on discrimination against women.The MCCWF—created by the Montgomery County Board of Commissioners—is a diverse group of women volunteers who serve Montgomery County communities and help aspiring women achieve their educational goals.Their mission is to foster leadership, provide awareness of existing services, promote the development of resources, and advocate equal access to such resources in order to enhance the lives of women and families.Each year, an event theme is drawn from the National Women’s History Project, with this years’ theme being, “Nevertheless She Persisted: Honoring Women Who Fight All Forms of Discrimination Against Women.”Honoring this year’s theme, the MCCWF celebrated women fighting not only against sexism, but also against the many intersecting forms of discrimination faced by women. Some of these include discrimination based on race and ethnicity, class, disability, sexual orientation, non-binary and/or non-conforming gender express, veteran status, and many other categoriesBoyd, a devoted family law lawyer, moderated a panel discussion with the Women’s Law Project, who was also honored for its devotion to protecting and advancing the rights of women and girls.The panelists discussed recent trends, legislative action, and strategies to combat unequal pay, pregnancy discrimination, and sexual harassment in the workplace. They also identified national and local resources to help women fighting all forms of discrimination.Learn more about the Montgomery County Commission on Women and Families (MCCWF).