On September 26, 2013, MBBP employment attorney Scott Connolly spoke on a panel at Boston College Law School on the subject of defending discrimination and retaliation claims before the Massachusetts Commission Against Discrimination (MCAD). Scott, who has been defending employers against such claims for more than 12 years, presented to a panel of third-year law students on case evaluation, witness interviews, procedure, development of defenses, and preparation of employer Position Statements.
Employers with questions about responding to charges of discrimination or retaliation at the MCAD or the federal Equal Employment Opportunity Commission should feel free to contact Scott about this area of practice.
Governor Patrick Administration Supports “Outright Elimination” of Non-Compete Agreement Enforceability
In testimony before the Joint Committee on Labor and Workforce Department on September 10, Gregory Bialecki, Governor Deval Patrick’s Secretary of Housing and Economic Development, stated that the Patrick Administration now supports the outright elimination of the enforceability of non-competition agreements in Massachusetts. Secretary Bialecki stated that a ban on non-competes should be combined with the adoption of the Uniform Trade Secrets Act (“UTSA”) to protect against the potential loss or disclosure of proprietary information by departing employees.
Secretary Bialecki testified that Massachusetts “should do everything it can to (1) retain talented entrepreneurs; (2) support individual career growth and flexibility; and (3) encourage new innovative businesses that are the engines of economic growth.” According to Bialecki, non-competes “stifle movement and inhibit competition” and, as a result, “we are not seeing the kind of spin-offs and start-ups at the same rate that previously made Massachusetts an enviable model.”
Secretary Bialecki testified that Massachusetts should adopt the USTA, as 47 other states have done. He said that the UTSA “and other tools protect an employer’s trade secrets and proprietary information,” and that, “[e]ven without non-compete agreements, companies still have a disproportionate ability to litigate against the individual.”
There are three pending non-compete bills before the Massachusetts legislature. Two bills would create a presumption that non-competes lasting more than 6 months are unenforceable. One bill would ban non-competes in Massachusetts altogether. At this point, however, any legislative effort to restrict the use of non-competes faces a tough battle. Still, the Patrick Administration’s decision to support a ban on non-competes may be a turning point in the debate.
You may contact a member of MBBP’s Employment Law Group for more information.
Employee terminations result in more lawsuits than any other employment action. Despite the general rule in Massachusetts that the employment relationship is “at-will” and can be terminated at any time, with or without notice, reason or cause, there are many exceptions to the at-will rule, which can make each termination open to potential legal challenge. This Employment Law Advisor focuses on how employers should handle employee terminations and the steps employers can take to reduce the risk of legal claims and liability.
For more information, please read our September Employment Law Advisor.
On Tuesday, October 29th MBBP is hosting a complimentary breakfast program titled “Employee Terminations: Avoiding Claims & Liability“. Discharging an employee is one of the most difficult parts of a manager’s (and HR professional’s) job. It is also the employment action most likely to expose a business to legal claims and liability. Discharged employees can bring a wide array of claims, including breach of contract, wrongful discharge, discrimination, and retaliation. Increasingly, discharged employees also assert claims focusing on the manner in which they were discharged and on post-termination conduct by employers, including claims of defamation, false imprisonment, and non-payment of wages.
Consequently, before discharging an employee, it is critical that employers (1) carefully evaluate the discharge decision; (2) prepare appropriate paperwork and plan for the termination meeting; and (3) be prepared to comply with the legal obligations that arise on and after the date of termination.
This Program is designed to help HR professionals, managers and in-house counsel develop a rational and strategic approach to employee terminations. We will review the major areas of risk and the common employer pitfalls and traps for the unwary. We will lead a very practical discussion with attendees focused on developing best practices that will avoid employee claims and liability.
This event is complimentary, but space is limited! Please visit our event page for more information or to register.
By: Maura Malone
In June, the United States Supreme Court issued a decision in United States v. Windsor which struck down the federal Defense of Marriage Act (DOMA) and cleared the way for federal recognition of same-sex marriage.
To comply with the Supreme Court’s decision, the U.S. Department of Labor (DOL) has now revised previously issued guidances on the Family Medical Leave Act (FMLA) and expanded FMLA coverage to legally married same-sex couples.
The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employees had not taken leave. Prior to the DOL’s revisions, although same-sex couples could take FMLA leave to care for or bond with a child, they were not entitled to FMLA leave to care for a same-sex spouse.
The DOL’s revisions delete references to DOMA from its FMLA guidances and clarify that under the FMLA, the term “spouse” means:
. . . a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.
Because the definition of “spouse” is tied to the definition of marriage in the state where the employee resides, FMLA spousal rights do not apply to employees whose same-sex marriage is not recognized by the state in which they live.
As a result of the DOL’s revisions, employers with employees in states which recognize same-sex marriage should ensure that their FMLA policies and practices provide for leave to an employee whose same-sex spouse requires care.
Employers should contact a member of the Employment Group with any questions related to FMLA benefits for employees in a same-sex marriage.