Noncompetition Agreements: Protecting Customer Relationships & Confidential Information 03/20/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Events, Legal Developments.Tags: employer interests, employment agreement, noncompete, Noncompetition agreements
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On Tuesday, April 23rd MBBP is hosting a complimentary breakfast program titled “Noncompetition Agreements: Protecting Customer Relationships & Confidential Information“. Employers often ask: “Are our non-compete agreements with employees enforceable?” The answer often depends on whether the employer took the necessary steps to put an effective agreement in place. Courts in Massachusetts generally will enforce reasonable agreements when necessary to protect particular employer interests, such as customer relationships and trade, from misappropriation. On the other hand, courts generally do not enforce non-compete (or non-solicit and non-disclosure agreements) when no real protectable interests are at stake, the restrictions are unreasonable, or the employer has undermined its ability to enforce them.
This Program will identify the steps employers can take to increase the likelihood that a court will enforce its restrictive agreements with employees, provide education and insight into how such agreements are enforced by employers, and de-mystify the litigation process. We will also review recent legal developments that may affect whether the agreements you currently have in place with employees are vulnerable to attack by departing employees.
Our presenters have decades of experience advising employers and litigating cases in this area and we expect that attendees will bring a wealth of knowledge and experience to the program. Through discussion, we expect a very enlightening exchange of practical ideas and a range of employer experiences.
Please visit our event page for more information or to register.
New Regulations Require Use of Updated FMLA Poster by March 8 03/04/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: DOL, Family and Medical Leave Act, FMLA
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The U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations which take effect on March 8, 2013. Most of the changes in the regulations relate to the FMLA’s military leave provisions and the Airline Flight Crew Technical Corrections Act. The regulations require covered employers to post a new, updated poster by March 8. The new poster is available on the DOL’s web site.
The new regulations also make some relatively small changes and clarifications in others areas, including how employers should calculate increments of intermittent FMLA leave. The Department of Labor provides a side-by-side comparison of the prior regulations and the new regulations here.
If you have questions or want more information on the new regulations, you can contact Bob Shea.
Wage & Hour Tip: Understanding the Frequency of Payment Rules 02/26/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, MBBP news, New Resources.Tags: payment frequency, wage and hour
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Did you know that an employer who does not pay its non-exempt employees every two weeks may technically be violating Massachusetts law? Read February’s Wage & Hour Tip for more information on payment rules.
Please feel free to contact MBBP’s Employment Law Group with any questions.
New Proposed Massachusetts Non-Compete Legislation Focuses on Duration of Restrictions 02/12/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Legal Developments.Tags: massachusetts legislation, non-compete, non-compete duration
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By: Bob Shea
Over the past several years legislators in Massachusetts have filed various bills seeking to address perceived employer overreaching in the area of non-competition agreements. According to the legislators, many employers impose non-compete restrictions on employees in circumstances where such restrictions are not appropriate, or impose restrictions that go beyond what might be necessary to protect legitimate business interests (i.e., customer good will, trade secrets and other confidential business information).
Recent bills introduced by Representative (now Senator) Will Brownsberger and Representative Lori Erlich addressed non-compete issues in a fairly comprehensive way, attempting to codify, clarify, and modernize existing common law in Massachusetts. The bills met opposition by some business groups which viewed the bills as trying to place unacceptable limitations on the legitimate use and scope of non-compete restrictions. Although the bills garnered some support, including from employee advocates, the Governor’s office and some journalists, the legislators’ efforts were unsuccessful.
This year, Sen. Brownsberger and Rep. Erlich have presented a bill that focuses only on the duration of non-compete restrictions. The bill, House Bill No. 2221, referred to as “the Noncompetition Agreement Duration Act,” seeks to create a presumption that a non-compete restriction lasting up to six months is reasonable in duration, whereas a non-compete restriction lasting more than six months is presumed unreasonable in duration. The bill provides that a non-compete agreement that is determined by a court to be unreasonable in duration shall be unenforceable.
The bill provides for three exceptions: a non-compete agreement of unreasonable duration will not be unenforceable if (i) the employee has breached a fiduciary duty to the employer, (ii) the employee unlawfully took the employer’s property, or (iii) the employee has received $250,000 in annual taxable compensation from the employer. When one of these exceptions applies, a court could enforce the non-compete agreement for any duration the court determines is appropriate.
We believe the bill will face strong opposition, and its prospects for passage are, at best, uncertain.
If you have questions or want more information on this proposed legislation, you can contact Bob Shea.
MA Employers Should Review Employee Release Language 02/06/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: separation agreement, SJC, wage act claims
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By: Bob Shea
As we reported in December, in Crocker v. Townsend Oil Company, Inc., the Massachusetts Supreme Judicial Court (“SJC”) provided important guidance to employers concerning releases by employees of claims under the Massachusetts Wage Act, M.G.L. c. 149. The SJC stated in Crocker that a release of claims under the Wage Act will be enforceable only when the release is stated in “clear and unmistakable terms.” The release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.
In light of the Crocker decision, employers in Massachusetts are wise to review the release language contained in their forms of employee separation agreement to ensure that language meets the standard set forth by the SJC.
For any questions on this topic, feel free to contact any member of the Employment Law Group.
Retaliation Again Is the Top Claim Filed with the EEOC 02/04/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: eeoc, employment law advisor, retaliation claims
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By: Bob Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2012 and for the third year in a row charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 38% of the charges filed with the EEOC, up one percent from 2011, followed by race, gender, age and disability discrimination. Last month, MBBP’s Employment Law Advisor focused on this dangerous area of employment law and outlined steps employers should take to reduce their legal exposure. January’s Employment Law Advisor is found here.
Please contact Bob Shea with any questions on this topic.
Supreme Judicial Court Rules on Releases of Wage Act Claims 12/19/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: crocker v. townsend oil, massachusetts wage act, SJC
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The Massachusetts Supreme Judicial Court (SJC) issued an opinion this week in Crocker v. Townsend Oil Company, Inc., a case that offers important guidance to employers concerning releases by employees of claims under the Massachusetts Wage Act.
A release of Wage Act claims will be enforceable, the SJC held, only when such an agreement is stated in “clear and unmistakable terms.” In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving.
Crocker underscores the importance for employers of proceeding carefully when paying employees extra compensation, such as severance pay, at the time of termination to obtain releases of claims under the Massachusetts Wage Act.
Click here to view the full article.
Massachusetts Continues Its Efforts Against Independent Contractor Misclassification 12/11/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: department of unemployment assistant, employment, labor and workforce development
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By: Bob Shea
Massachusetts Governor Patrick’s administration recently announced that it is launching a first-of-its-kind study to examine the scope and financial cost of the Commonwealth’s “underground economy.” Over the next year the study will seek to identify the extent of “employment fraud” by industry category and attempt to determine the amount of money the Commonwealth is losing each year in unpaid taxes. The study will focus on the practice of improperly misclassifying workers as independent contractors, which allows businesses to avoid wage law requirements, unemployment and payroll taxes, and workers compensation insurance and health insurance costs.
Further, the Executive Office of Labor and Workforce Development (“EOLWD”) announced that its Department of Unemployment Assistance (“DUA”) concluded audits of three business that uncovered $11.5 million in unreported wages, 2,300 misclassified workers, and $2,554,000 in unpaid DUA obligations. DUA credited the Joint Task Force on the Underground Economy and Employee Misclassification (“JTF”) with helping “to bringing the businesses into compliance.” The JTF was established by Governor Patrick in 2008 to coordinate multiple state agencies’ efforts attacking worker misclassification. Please visit MBBP’s resources page to read an article concerning the problems that changes in Massachusetts independent contractor have caused for many businesses.
Feel free to contact Bob Shea with any questions on this topic.
MBBP Obtains Successful Non-Compete Ruling 10/23/2012
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment, Legal Developments.Tags: employment law, material change doctrine, non-compete
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Last week, MBBP Employment Attorneys Chris Perry and Maura Malone successfully opposed a motion for preliminary injunction to enforce restrictive covenants against three sales executive clients based on the material change doctrine. In Akibia, Inc. v. Jeffrey Hood, Ryan Gavigan and Charles Krueger (Mass. Super. Ct. 10/9/2012), Judge Jeffrey A. Locke ruled that the non-compete agreements each former employee had signed at Akibia were likely voided by material job changes that included 
promotions, demotions, increases and decreases in compensation, changes in responsibilities and sales territories, and changes in the employer’s sales strategies and product offerings. As such, Judge Locke denied Akibia’s motion to prevent Hood, Gavigan and Krueger from working for their current employer, IOvations. Judge Locke did not address language in the three employees’ non-compete agreements, which stated that their obligations under the non-compete would continue regardless of any job changes, plainly implying that such language did not influence his case analysis.
Please visit our practice page to learn more about our employment group.
Wage & Hour Claims: What Employers Can Do to Avoid Them 09/21/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Events, Legal Developments.Tags: employee lawsuits, employment, wage and hour law, wage-hour claims
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On Wednesday, November 14th MBBP’s employment practice is holding an informational seminar on wage and hour claims and what employers can do to avoid them. Wage and hour claims across the U.S. are at an all-time high. The laws governing the payment of wages, overtime pay, vacation pay, compensable working time and commissions, and the use of independent contractors, have become a leading source of employee claims and employer liability. Mistakes can be very costly because penalties in Massachusetts include mandatory treble damages and attorneys’ fees, as well as potential civil and criminal liability for individual corporate officers. Unfortunately for businesses, the rules in this area of the law are not always clear and misconceptions abound. Well-intentioned and otherwise law-abiding businesses are increasingly facing wage-related government investigations and employee lawsuits.
In this seminar MBBP will identify the most common wage and hour challenges and employer misconceptions. We will review the governing rules and offer guidance and tips to help your business avoid unlawful pay practices and reduce employee wage claim risks.
For more information, directions, or to register, please visit the event page: Wage & Hour Claims: What Employers Can Do to Avoid Them.
New Massachusetts Law Creates Wellness Program Tax Incentives for Employers 08/29/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: employers, massachusetts law, tax credit, wellness program
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By: Bob Shea
Massachusetts has enacted legislation that, effective January 1, 2013, gives employers an annual tax credit of up to $10,000 for implementing wellness programs for their employees. The wellness program tax credit is part of broader legislation entitled “An Act Improving the Quality of Health Care and Reducing Costs through Increased Transparency.”
The law acknowledges that “wellness programs implemented by business have resulted in both savings to their premiums as well as overall savings to the cost of health care,” and states that the goal of the tax credit “is to provide smaller businesses with an expanded opportunity to implement these programs.” The law offers employers a tax credit of 25% of the costs associated with implementing a wellness program, up to $10,000 per year. Employers can apply the credit to taxes owed to the Commonwealth. Further, employers can carry over and apply to their tax liability in future years any wellness program costs that exceed the $10,000 per year cap. The Massachusetts Department of Public Health will be issuing regulations specifying how employers can ensure that their wellness programs qualify for the tax credit.
For any questions on this topic, please feel free to contact Bob.
A Guide to Employment Applications in MA 07/16/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments, New Resources.Tags: employment law
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Some employers view employment applications as simple, standard forms used to obtain only basic background information from job candidates. Others see them as a tool to obtain more extensive information used to evaluate and potentially screen out prospective employees. Massachusetts employers need to know that there are some very specific requirements regarding both what must be contained in application forms and what is prohibited. Further, we believe employers also should use employment applications to establish and protect employer rights.
What may be asked in an employment application is heavily regulated. Read this edition of the Employment Law Advisor to learn how you can use employment applications to establish and protect your legal rights. And of course, we’re always here to help – feel free to contact a member of our Employment Team!
New Hampshire Enacts Law Requiring Disclosure of Non-Compete Restrictions 07/11/2012
Posted by Morse, Barnes-Brown Pendleton in Employment.Tags: employment, new hampshire law, non-compete
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By: Bob Shea
Effective July 14, 2012, employers in New Hampshire must disclose any “non-compete” or “non-piracy” agreement to an employee or potential employee prior to making an offer of employments or an offer of change in job classification. Under RSA 275:70, if an employer fails to provide the employee or potential employee with a copy of the agreement prior to the offer the agreement will be deemed “void and unenforceable.”
The law is intended to prevent situations in which an employee leaves a job for a new position and is then told that he or she must sign a non-compete or non-piracy agreement as a condition of employment. Unfortunately, the law does not define what constitutes a “non-compete” or “non-piracy” agreement, and thus leaves unclear whether the law applies to non-solicitation agreements. It will be left to courts to decide the scope of the new law.
For more information on this topic, please contact Bob Shea.
MA Transgender Equal Rights Law Becomes Effective July 1st 06/13/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: employment, non-discrimination, transgender equal rights law
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By: Bob Shea
Last November Massachusetts enacted legislation to protect transgender people from discrimination in employment, housing, mortgage loans and credit. The law goes into effect on July 1, 2012.
Entitled “An Act Relative to Gender Identity,” and also referred to as the “Transgender Equal Rights Law,” the law amends the state non-discrimination laws to include “gender identity” as a new protected category. The law covers employers with six or more employees. As with other protected categories, like age, race, gender, religion, disability and sexual orientation, the law prohibits covered employers from discharging, refusing to hire, or otherwise discriminating against transgender individuals with respect to their terms or conditions of employment.
To comply, covered employers should modify their equal employment opportunity and anti-discrimination policies to include prohibitions against gender identity discrimination. Massachusetts requires that employers maintain and distribute sexual harassment policies. For employers who have anti-harassment policies addressing all forms of unlawful harassment (which we recommend), such policies should be modified to include gender identity harassment. Employers should also consider whether the new law will require any changes in the provision and usage of restrooms, locker rooms and other gender-specific facilities.
For questions on this topic, please contact Bob Shea.
U.S. Court of Appeals Enjoins NLRB from Enforcing Posting Requirement on NLRA Rights 04/20/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments, MBBP news, New Resources.Tags: ela, national labors relations act, nlrb
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MBBP has released a new Employment Law Alert (ELA) which discusses a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit that temporarily blocked the National Labor Relations Board (NLRB) from implementing and enforcing a rule published by the NLRB on August 30, 2011. The rule was set to go into effect on April 30, 2012, and requires employers to post a notice to employees informing them of their rights under the National Labor Relations Act, including rights to act together to improve wages and working conditions, to form and join a union, and to bargain collectively.
To learn more on the decision, please read the full alert.
What Employers Can’t Ask During Hiring Process 03/29/2012
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment.Tags: employers, hiring, massachusetts
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With talk of employers asking for Facebook passwords during job interviews, New England Cable News turned to our own Christopher Perry to set the record straight. What can Massachusetts employers ask during an interview and what can’t they ask? Perry cautions employers to know the laws regarding discrimination and any type of background checks using a third party. The video clip also previews changes coming in May 2012 regarding CORI laws and additional requirements for employers. Watch the interview on NECN Business below.
To learn more about specific employer obligations regarding hiring in Massachusetts, please contact Christopher Perry.
Does an employer’s high school diploma requirement for job applicants violate the Americans with Disabilities Act (“ADA”)? 02/23/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: disability, eeoc, employer guidance
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By: Bob Shea
In November 2011 the Equal Employment Opportunity Commission (“EEOC”) published a “discussion letter” in which the EEOC stated that an employer’s high school diploma requirement that “screens out” an individual who is unable to graduate from high school because of a learning disability (that meets the ADA’s definition of a “disability”) is unlawful unless the employer can demonstrate that the diploma requirement is “job related and consistent with business necessity.” An employer would not be able to make this showing if, for example, the position’s job functions could easily be performed by someone without a high school diploma.
Because EEOC’s letter caused “significant commentary and conjecture” about its meaning and scope, the EEOC has now issued a “guidance” to clarify that employers are not prohibited from adopting a requirement that a job applicant have a high school diploma. However, the guidance states “an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way.”
Please visit this EEOC site for the full guidance.
OSHA Deadline for Posting Summary of Work-Related Injuries and Illnesses is Here! 01/31/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.add a comment
As of February 1, 2012 employers who are covered by the Occupational Safety and Health Administration’s (OSHA’s) record keeping requirements are required to post a summary of all work-related injuries and illnesses which occurred in the previous year, and to leave that summary up in a conspicuous place until April 30, 2012. Under OSHA regulations, employers are required to make this posting, even if there were no work-related injuries or illnesses, and the summary must be signed and certified by a company executive. The required posting is contained in OSHA Form 300A. A list of employers who are exempt from the requirement can be found here. Employers who don’t fall within one of these exemptions, and who employ more than ten employees, should plan to comply with the posting requirements.
Remaining in compliance with OSHA and its record keeping requirements remains important, as OSHA has the ability to inspect employer compliance and to issue citations and penalties when its requirements are not met. For any questions about this or any other record retentions question, please contact a member of MBBP’s Employment Practice.
EEOC Reports Record Number of Discrimination Charges Filed in 2011 01/30/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: employment discrimination, equal opportunity, retaliation claims
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By: Bob Shea
In a press release issued on January 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) reported that 99,947 discrimination charges were filed in FY 2011 (which ended September 30, 2011), which constitutes an all-time high for discrimination claims filed against employers in the United States. For the second year in a row, retaliation was the leading type of discrimination alleged, accounting for 37% of the charges filed with the EEOC, followed by race, age and disability discrimination.
For analysis of why retaliation claims have increased over the years and advice on how employers can respond, see our article “Why Retaliation Claims Are on the Rise and What Employers Can Do About It“.
NLRB Again Delays Deadline for Posting Notice Concerning NLRA Rights 01/11/2012
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: national labor relations act, nlrb, notice posting
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On September 6, 2011, MBBP notified clients that the National Labor Relations Board (NLRB) had published a new rule requiring that employers post a notice to employees informing them of their rights under the National Labor Relations Act, including rights to act together to improve wages and working conditions, to form and join a union, and to bargain collectively. The rule was to take effect on November 14, 2011.
Subsequently, in October 2011, we notified clients that the NLRB was postponing the implementation date for the notice-posting rule by two months (to January 31, 2012) in order, the NLRB stated, “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”
Now, the January 31, 2012 deadline has been postponed to April 30, 2012. In a press release issued on December 23, 2011, the NLRB stated that it “has agreed to postpone the effective date of its employee rights-notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.” The NLRB said that it “determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”
For more information on this topic, please contact a member of our Employment Practice Group.
