Archives for March 2014

Avoiding Handicap Law Violations Requires Caution in a Variety of Circumstances

All employers know, or certainly should know by now, that they have a duty to reasonably accommodate workers with disabilities. Still, cases in this area of law abound at the MCAD, EEOC and in the courts. While they often revolve around real disagreements concerning the nature of an employee’s workplace limitations or an employer’s ability to accommodate them, too many arise simply because employers do not act with caution when they discipline or fire workers who are or may be handicapped.

Under Massachusetts law and perhaps even at the federal level in the wake of recent amendments to the Americans with Disabilities Act, workers are entitled to handicap protection more often than one may think. In general, anti-discrimination laws provide that, if an employee suffers from a handicap — defined as a substantial limit on a major life activity such as walking, sleeping, eating, working and the like — he/she must be reasonably accommodated on the job. Accommodations can take many forms, from leaves of absence to adjustments to work stations or even changes in how a manager interacts with a disabled worker. Once an employer knows a worker needs an accommodation, it must engage in an interactive process to determine whether one can be provided. It is only where such a workplace adjustment will cause a hardship to an employer that a reasonable accommodation can properly be called ‘unreasonable.’ Errors in this area can be costly. Take, e.g., the employer ordered by the MCAD in January 2014 to pay a former employee more than $130,000, with substantial interest and legal fees to follow, because it failed to discuss the worker’s request for an extension to his leave of absence before it fired him.

Frankly, no employer should ever find itself in a position like this. Discretion being a critical part of running any business, all must be familiar enough with the law to know when to seek legal help before making the typically irreversible decision to terminate a worker who even might be handicapped. Whenever an employee is experiencing difficulty at work due to a known medical condition, employers should move cautiously. Taking time to consult with an attorney or to research key issues oneself may be time and/or money well spent.


Starting A Competing Business Without Noncompetition Agreement

We represented an individual with experience in the commercial cleaning business who had left his employer to start a competing business after years of being underpaid. When he resigned, our client informed his boss what he planned to do and was offered help getting started. Some months later, after several customers terminated cleaning services contracts with the former company, our client received a demand letter under a years-old agreement that included limited noncompetition language. Despite the fact that he did not believe the agreement barred him from competing, our client had been respectful in his business dealings. He had expressly avoided soliciting customers from the old company and had not in fact performed services for any of them at the time he received a demand letter with a threat of a lawsuit.

Result:  We reviewed the terms of our client’s prior working relationship and determined that no valid noncompetition agreement existed. We responded to the demand letter on his behalf, successfully persuading his former company to drop the issue, and helped him to continue building his own successful cleaning business.

Excellent Employment Attorney

“Jack has been our company’s legal counsel for all things employment related for the last 10 years. He is down to earth, yet completely professional and has handled anything that we have needed his help on – from drafting our employee manual to resolving an employee harassment case (even speaking with me on a Sunday morning). I would highly recommend Jack as a knowledgeable and experienced employment attorney.”

Tatiana, corporate client

The Massachusetts Wage Act

Our client ran a successful small business performing in-home countertop installations. Without a hint of problems, he suddenly received a demand from one of his workers, who claimed through counsel that he’d been underpaid for overtime hours worked over the course of several years. Though he calculated that he was owed a relatively small sum, the employee tripled his damages to almost $50,000 under the Massachusetts Wage Act. The employer kept strong records and was able to demonstrate that he paid the employee – who continued to work for him – for all hours that he reported working. Because the employee frequently worked out of the office and the employer did not carefully track time spent on the road, however, the employee was able to claim that he actually worked more hours than the employer’s records reflected. The dispute presented difficult fact questions that promised to be time-consuming, expensive to litigate, and risky for the employer because the Wage Act makes employers automatic ally liable even when they make honest mistakes.

Result:  We drafted a strong reply denying any wrongdoing and presenting legal reasons why the employee did not have a valid overtime claim. Following this, we were able to negotiate a favorable settlement that avoided the costs and uncertainties of litigation.