Employment Law Clip: Retaliation Claims and Steps Employers Can Take to Avoid Them

June 17, 2014 Leave a comment

According to the federal Equal Employment Opportunity Commission’s (“EEOC”) statistics, 2013 was the fourth straight year when charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 41.1% of the charges filed with the EEOC in 2013, up three percent from 2012. Retaliation is now the most common type of discrimination alleged nationally, topping both race and gender. What are retaliation claims and what steps can employers take to reduce their risks?

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Please feel free to contact any member of our Employment Law Group with any questions.

MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Visit our YouTube page to see all Employment Law Clip videos.

Employment Law Clip: Non-Compete Agreements & the Material Change Doctrine

June 5, 2014 Leave a comment

The success of a company often relies on its ability to attract and retain key employees, and to safeguard their know-how, customer relationships and trade secrets. To this end, many companies put in place non-competition agreements with their employees at the time of hire and assume that these agreements remain enforceable even if changes occur to the employee’s job. However, recent Massachusetts trial court decisions confirm that is not always so. The “material change doctrine” can be invoked by former employees to void non-competition agreements signed at the inception of employment, which may leave an employer’s customer relationships, i.e., “goodwill,” and confidential proprietary information exposed to misuse and misappropriation. Today, former employees are raising this defense more often and with more success.

In this video Massachusetts Employment Lawyer Christopher J. Perry explains the “material change doctrine” and the importance of carefully considering the potential impact of job changes on the enforceability of non-compete agreements. For more information, see our article: Material Job Changes May Void Employee’s Non-Compete

Please feel free to contact any member of our Employment Law Group with any questions.

MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.

More MA Legislative Developments in Trade Secrets and Non-Competes

May 9, 2014 Leave a comment

By: Christopher PerryEmployment Attorney Christopher Perry

On April 29, the Massachusetts Legislature’s Joint Committee on Labor and Workforce Development favorably reported out a bill which would enact a version of the Uniform Trade Secrets Act (“UTSA”) coupled with a ban on non-competition agreements in Massachusetts.  The bill is quite similar to the Patrick Bill we described in our April 15, 2014 Employment Law Alert.  This marks the first time that the Joint Committee has favorably reported out a bill to the legislature that would regulate non-competition agreements in the Commonwealth.  The current legislative session ends as of July 31, so it remains to be seen if the legislature will take any action on the new bill.

For more information on this topic, please contact Chris Perry.

Employment Law Clip: FLSA Classifications – Salaried Does Not Necessarily Mean Exempt From Overtime

April 28, 2014 Leave a comment

A common misconception is that paying a salary to an employee makes the employee exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). In reality, many salaried employees do not qualify for any exemption from overtime obligations, and relying solely upon whether employees are paid a salary in classifying them as exempt or nonexempt will almost certainly result in misclassifications. In this video Massachusetts Employment Lawyer Maura E. Malone discusses the process of determining whether your employees are exempt or non-exempt and the risks of failing to properly classify them.

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Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.

MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.

Patrick Administration Seeks to Ban Non-Compete Agreements

April 15, 2014 Leave a comment

During the past several years, there have been various legislative initiatives in Massachusetts which, if successful, would have regulated and/or curtailed the use by employers of non-competition agreements.  On September 10, 2013, in testimony before the Massachusetts Legislature’s Joint Committee on Labor and Workforce Development, Gregory Bialecki, Governor Patrick’s Secretary of Housing and Workforce Development, testified that the Patrick Administration supports the “outright elimination of enforceability” of all non-compete agreements in Massachusetts, regardless of duration or geographic scope.  Secretary Bialecki’s testimony finally confirmed publicly what many assumed was the Patrick Administration’s position on this controversial subject.

Last Thursday, the Patrick Administration took a bigger step towards its goal of eliminating non-compete agreements by way of an economic stimulus bill that includes a proposed new Chapter 93K to enact the Uniform Trade Secrets Act (“UTSA”) in Massachusetts. The proposed Chapter also includes a provision which would render “void and unenforceable” any non-compete agreement with an employee or independent contractor.

For more information on what this means for employers, please see the full Alert.

If you have any questions, please feel free to contact a member of MBBP’s Employment Law Group.

Employment Law Clip: Internships – Paid or Unpaid?

April 14, 2014 Leave a comment

Student internships have become increasingly popular, and while internships generally benefit employers and interns alike, there is uncertainty regarding whether internships may be paid or unpaid. This video explains the importance of distinguishing between the nonprofit and for profit sector and the regulations that apply to each.

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Please feel free to contact any member of our Employment Law Group with any questions on paid or unpaid internships.

MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.

Will Your Interns Sue You for Unpaid Wages?

April 8, 2014 Leave a comment

The end of last summer’s internship season was marked by a wave of class-action lawsuits filed by interns against entertainment, sports, and publishing companies. The interns sued for unpaid wages and overtime claiming that they in reality were employees of these companies. These much publicized lawsuits, including those against Condé Nast Publications, Fox Searchlight Pictures, Inc., Hearst Corporation, and Sean “Diddy” Combs’s Bad Boy Entertainment, led many businesses to end their internship programs altogether. Here is what you must know before allowing an unpaid intern to “work” for your for-profit business.

An intern for a for-profit business must be paid unless the internship meets the requirements of the narrow “learner/trainee” exemption under the federal Fair Labor Standards Act (“FLSA”), the law governing payment of minimum wages and overtime. Failure to meet this narrow exemption could result in costly litigation and possibly significant liability; some of the businesses recently sued have had thousands of interns in the purported “class” of plaintiffs.

The U.S. Department of Labor (the “DOL”) applies a six-criteria test to unpaid interns at private-sector, for-profit businesses to determine whether the “learner/trainee” exemption is met. The DOL’s six criteria are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

This test may be hard for a for-profit business to pass if it receives an advantage from the services of the intern, for example if the intern performs low-level administrative and clerical tasks. Although most courts have applied a more flexible test, a number of courts have deferred to the DOL’s more stringent test, which in turn has prompted the wave of recent lawsuits. To avoid claims, companies in doubt about whether they will pass the DOL’s test should pay their interns at least minimum wage (and overtime unless they restrict interns from “working” for more than 40 hours per week) and keep accurate records of the interns’ time “worked.”

For more information on this topic, and other information about having an internship program, please contact a member of the Employment Practice Group.

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