Amy Jonker, Senior Attorney at Dykema working out of the Grand Rapids office
LEGAL NEWS PHOTO BY CYNTHIA PRICE
By Cynthia Price
Legal News
Up-and-coming attorney Amy Jonker of Dykema’s Grand Rapids office has reached a sought-after benchmark: being published in the Bloomberg BNA (Bureau of National Affairs) Daily Labor Report.
Jonker was asked to co-author the “Insights” article by her colleague in Chicago, Jill Vorobiev, who had responded to a request for attorneys with specific expertise in noncompete agreements (NCAs) from the prestigious Bloomberg BNA.
The interest in NCAs has increased, Jonker says, because there seems to be a heightened use of them for lower-level employees and by smaller companies. “We’ve seen an uptick in enforcement and that’s really how you end up knowing that these are being used more often — you see more lawsuits, especially over the last couple of years. There’s more legal sophistication on the part of smaller companies, understanding more and wanting to use more noncompete agreements. That’s what really has caught a lot of people’s attention,” she says.
An additional reason for the Bloomberg BNA article, which refers to a “60 percent increase over the past decade in litigation against departing employees over alleged violations of noncompete agreements,” stems from another factor.
“Noncompete agreements are under fire across the country by courts and state legislatures that claim the agreements stifle innovation and discourage entrepreneurship,” say Jonker and Vorobiev in their opening paragraph. Several states, including California, have either eliminated or severely restricted NCAs, or are considering legislation to do so.
The courts, Jonker emphasizes, have been quite uneven in their rulings on NCA matters. In Illinois, where Jonker formerly practiced, two judges in the U.S. District Court for the Northern District of Illinois have decided completely differently following what could have been a definitive Illinois appeal ruling in Fifield v. Premier Dealer Services. One disagreed with Fifield and offered a different standard for NCAs in Montel Aetnastak, Inc. v. Miessen; the other followed Fifield and rejected Montel.
As a result there are no easy answers, but Jonker and Vorobiev caution that the more specifically framed the NCA, the better the chance an enforcement challenge against an employee will fare. Limits to geographic scope, specifics of what the employee can and cannot do, and other factors have helped in favorable court decisions.
The standard in most states is whether the NCA is “reasonable.” The article notes that the following questions are likely to be considered in a court deciding if the NCA follows the rule of reason:?“(1) Is the restraint on the employee greater than what is needed to protect the employer’s legitimate business interest? (2) What is the hardship on the employee? and (3) What is the likely injury to the public?”
Some court opinions have also held that there must be some incentive for the employee signing the NCA other than new or continued employment (or as in the case of Fifeld that, if new or continued employment is the reason, the employee must work there for two years in order for the NCA to apply); in other words, the NCA is unenforceable if the only benefit goes to the employer. This has been less of an issue in the past when negotiating it has been part of an overall compensation package for higher level or sales employees, but now that people serving as hairstylists and camp counselors are subject to NCAs, it has come to the forefront.
In a related concern, while the NCA has traditionally been regarded by many as having primarily a deterrent effect, now some employees sign it as a matter of course and do not understand what it means for them. “Businesses should do a better job of educating the employees on the NCA after they carefully draft them, and talk about it up front,” Jonker says. “This will make it less likely the employer will have to go through enforcement proceedings, which can be expensive and time-consuming.”
The article also has some advice for employers hiring someone with an NCA at their previous firm. “Consider an offer of employment in writing that would not violate any restrictions,”the authors state, “such as prohibiting the new employee from bringing any trade secrets, client lists, property or confidential information from the former employer. Also, you should consider whether it makes sense to negotiate with the competitor to have the employee released from the [NCA].”
NCAs are just a small portion of the expertise Amy Jonker has amassed over her 11-year career, all of it spent with Dykema.
She is in the Litigation Department, and has a series of successful outcomes behind her in such areas as class action defense, especially in financial services, and on a wide range of employment matters from Title VII claims to the Family and Medical Leave Act to whistleblower claims. Representing her nationwide clients takes her to state and federal courts, and she does appellate work as well.
A Grand Rapids native, Jonker received her B.A. from Calvin College. Her father is a lawyer who was in private practice in the city — she adds that, though she is asked the question frequently, she is not related to Judge
Robert Jonker — and she planned to join him in his practice. Sadly, her father passed way while she was at Calvin.
Jonker moved to Chicago and worked briefly in the business world, but then decided to attend DePaul University College of Law, which resulted in a Juris Doctor.
After working at Dykema’s Chicago office, Jonker moved back to the Grand Rapids area in 2012. “My husband is from the Grand Rapids area as well, and in Chicago we were living in downtown so we considered the schools and the effect of living hectic lives with all the traffic,” says Jonker, who has children now aged three and six. “And all of our family lives here, so we were spending a lot of time driving back and forth. We decided to move back.”
She praises Dykema for making the transition seamless. “It was fortunate I was able to stay with Dykema — they were very gracious. I think it’s worked out amazingly well.”
She adds, “Jim Brady is a wonderful person to have leading our office; he’s so helpful, he always takes time to listen to people’s concerns. I love working here at Dykema and I love doing litigation.”
She says a case that stands out for her is one she took on pro bono when she was in Illinois, which wrapped up only recently. A single mother with three children working for the State of Illinois found that she had health problems that would mean taking time off intermittently. Despite following all of her employer’s directions along the way, she was terminated by her supervisor. Jonker fought hard for her client, and ultimately prevailed. “I got her a nice settlement and her record cleared,” Jonker observes. “I usually represent the defense side so this was a different position for me. I really enjoy the pro bono work. I feel like it’s really important.”
In addition to her successful practice, she participates in the American Bar Association Business Law Section and Consumer Financial Services Committee and is a member of the American Creditors and Collectors Association. This year, she was named a Rising Star.
Jonker has deep knowledge of collections practices and the Fair Credit Reporting Act, and she speaks and writes widely on those and other topics. She is the co-author of the Fair Debt Collection Practices Act chapter in the Consumer Financial Services Answer Book, published by Practicing Law Institute.
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