Legislature Considers Bill to Manage Non-Competition Agreements

June 1, 2010 By

Following the failure of a 2009 initiative to ban the enforcement of non-competition agreements, the Massachusetts legislature is now considering a bill to limit their applicability. The bill now winding its way through the legislative process would require, among other things, that non-compete agreemetns:

1.  Be written in a stand-alone format that both employer and employee sign. If non-competition is a condition of employment, the requirement must be disclosed to a new employee at least seven days prior to his/her starting work;

2.  If entered after an employee begins work, be supported by something valued at 10% or more of an employee’s annual salary. Notice of at least 2 weeks must also be provided to employees. This provision would ban the employer practice of requiring workers to enter a non-competition agreements immediately, under threat of job loss (this principle of law is already in effect under interpretative decisions of Massachusetts courts); [Read more...]

Filed Under: Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Non-competition Agreements

UPS Hit Hard by MCAD Again

April 14, 2010 By

The Massachusetts Commission Against Discrimination has hit United Parcel Service with a second substantial judgment for discriminating against a Massachusetts employee. This time, the complaint was for handicap bias by UPS in Springfield, Massachusetts. After a trial at the MCAD, UPS was ordered to pay almost $750,000 in lost wages and another $125,000 in emotional distress.

The case of William Anderson, Jr. v. UPS was decided in March 2010. It involved a handicapped man who sought a reasonable accommodation but was denied by UPS, which refused to engage in a required interactive discussion with Mr. Anderson, made unreasonable demands, and, according to the Commission, placed form over substance as it violated Massachusetts anti-discrimination law. “Respondent’s approach to the reasonable accommodation process was long on formality, short on meaningful communication,” the Commission wrote. UPS took unauthorized photos that made demonstrated Mr. Anderson’s condition but still claimed to be uninformed about it. UPS was ”rigid and unyielding” in its approach to Mr. Anderson and refused to engage in a flexible dialogue toward a mutually acceptable accommodation of his disabilities, the commission concluded. With interest and legal fees, the award could exceed $1 million. [Read more...]

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Uncategorized, Wrongful Termination

Take Care with Arbitrator Selection

April 2, 2010 By

Sometimes litigants learn the hard way that the judicial system doesn’t always dispense justice as well as it merely settles disputes. With arbitration, that lesson can be particularly harsh, since arbitrators aren’t required to follow the same rules as judges and, in almost every case, their decisions cannot be appealed. For this reason, the choice of an arbitrator to decide your lawsuit requires extreme care.

The pitfalls of a bad arbitrator selection process can be substantial. Virtually unfettered authority leaves arbitrators free to exercise biases that should play no role in the legal process. They can unjustly inflate awards, find excuses for denying them, and make arbitrary and capricious decisions like changing their minds in mid-stream about applicable law or refusing to award interest on judgments they do issue. Even when a litigant suspects something untoward has occurred — as I now do in a recent arbitration in which I was involved — there’s normally no way to address the problem once an arbitrator is selected and renders a decision. [Read more...]

Filed Under: Employee - Employment Law, Employer - Employment Law, Wrongful Termination

UPS Hit Hard in Discrimination Lawsuit

February 17, 2010 By

United Parcel Service has been hit hard in a sexual harassment lawsuit. After years of refusing to address multiple allegations that its Shrewsbury, Massachusetts warehouse is run amok with abusive supervisors who lack even a fundamental understanding of discrimination laws, the company will now pay dearly. It was not only ordered to pay $50,000 in damages to Thomas Sobocinski — a figure that ballooned to more than $125,000 with interest and legal fees — but now must train hundreds of supervisors across Massachusetts on the basics of sexual harassment and discrimination law. The training order alone will likely cost UPS hundreds of thousands of dollars.

To those familiar with UPS’s approach to manager/employee relations, the Massachusetts Commission Against Discrimination judgment is no suprise. UPS is reputed to run roughshod over its workers and punish those who dare to complain. Its Shrewsbury, Massachusetts warehouse, where Mr. Sobocinski works, is rife with abusive and sexually explicit language, as described by UPS managers themselves. Despite broad training on internal UPS systems, managers there are not taught about discrimination laws or held accountable for violating them. The result is broad anecdotal evidence of abuse by management that may have persisted for decades.   [Read more...]

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law

Health Insurance Subsidy for Employees Expands

January 29, 2010 By

The federal government has extended the subsidy for health insurance expenses for employees who are involuntarily separated from their jobs. The law, which was enacted in February 2009 as part of President Obama’s Recovery Act, now requires employers to pay 65% of health insurance continuation costs for employees they terminate prior to February 28, 2010. It  provides up to 15 months worth of this benefit, an expansion of the 9 months provided by the bill in early 2009.

The bill still is aimed solely at helping workers and does not require employers to foot any additional health insurance expense. Though businesses may initially lay out the 65% subsidy, they quickly recoup it via a credit against their payroll tax filings. The original statute provided the health insurance subsidy only to workers who were fired prior to December 31, 2009. Information on the law, which is administered by the U.S. Department of Labor, is available at http://www.dol.gov/ebsa/cobra.html.

Filed Under: COBRA, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law

Preventing Identity Theft — The New Employer Duty

November 9, 2009 By

A tough new data protection law is on the books and will soon require virtually all Massachusetts businesses to implement comprehensive policies to protect against identity theft. The statute applies so broadly that employers of every size and shape will be subject to it. All must create, implement, monitor and regularly update internal data protection procedures and encrypt information that is either transmitted via the internet or stored on portable devices.

Though the data security law became effective in October 2007, enforcement has been delayed until March 1, 2010 to permit Massachusetts companies time to become compliant. Doing so is a daunting task, since the statute’s broad reach captures virtually every every piece of what’s called “personal information.” That phrase refers to a combination of an individual’s name and either a social security number, driver’s license number, or financial account/credit card number or password. Employers must be certain to protect against both external data thefts and internal breaches. Not surprisingly, the latter sort is far more common. [Read more...]

Filed Under: Data Security, Employer - Employment Law, Massachusetts Employment Law Tagged With: , , ,

Court Clarifies Punitive Damages Guidelines

October 19, 2009 By

In a ruling that may be useful to Massachusetts employers, the Supreme Judicial Court in October made clear that puntive damages can only be awarded to discrimination plaintiffs when their employer’s conduct is “outrageous or egregious.” Punitive damages are, after all, available only to punish bad actors, not to permit windfall awards to discrimination victims who are generally entitled only to recover what they lost in wages and what they suffered from proven emotional injuries.

Apparently recognizing the subjective natures of the terms “outrageous” and “egregious” — who, after all can define either with more than a modicum of confidence — the court did what it often does. It created a list of factors that should be considered by judges and juries when evaluating whether to issue punitive damage awards. As always, the list is intended as a guideline only. Other factors that are relevant in particular cases can always be considered. The five punitive damages factors created by the SJC are: [Read more...]

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Wrongful Termination Tagged With: , , , , , ,

Misclassifying Workers Can Mean Big, Big Damages

September 23, 2009 By

Employers who misclassify their workers as independent contractors now have even more to worry about. In August, the state’s highest court made clear they could pay huge damages for this transgression of the law, even if they merely made an honest mistake.

In a majority opinion, the Massachusetts Supreme Judicial Court concluded that employers can’t defend an independent contractor classification lawsuit by claiming a worker would have made less money if he/she had been properly classified as an employee. Damages are not measured by the difference between what a worker received and what he would have received as an employee.  Instead,  under the independent contractor provisions of the state’s Wage Act, damages equal the value of “wages and benefits [a worker] should have received as an employee, but did not,” the court wrote. [Read more...]

Filed Under: Independent Contractors, Massachusetts Wage Act, Wages and Commissions Tagged With: , , , , , ,

Court Rulings Pose Risks For Employers

September 17, 2009 By

Massachusetts courts have been busy in the employment arena lately. In Summer 2009, they issued at least three substantive decisions that may force employers to take quick action on policy manuals, arbitration agreements and wage payment policies.

Though none of the decisions change the law outright, each is employee friendly and stretches employer duties to new lengths. The cases make it easer for workers to use employment manuals as binding contracts, harder for employers to force arbitration in discrimination cases, and more likely that employees will win big damage awards plus legal fees in disputed wage cases.

Employment Manuals In a June 2009 opinion, the district court’s appellate decision affirmed a $42,000 jury verdict for a worker who claimed his company’s employment manual was breached when he was fired. The court relied heavily on the worker’s testimony that he regarded the manual as binding and honored a non-compete clause contained within it. The court also cited to the employer’s request that the employee acknowledge receiving it. [Read more...]

Filed Under: Discrimination, Employer - Employment Law, Massachusetts Employment Law, Massachusetts Wage Act, Wages and Commissions, Wrongful Termination Tagged With: , , , , , ,

SJC Makes Arbitration of Discrimination Lawsuits Tougher

August 14, 2009 By

In a surprising decision, Massachusetts’ highest court ruled in July that not all arbitration agreements are created equally and, consequently, only some of them are enforceable by employers. When it comes to suits under the state’s anti-discrimination law (Chapter 151B), the language in a workplace arbitration clause must be clear and unequivocal. Unless it demonstrates that an employee specifically bargained away the right to sue at the Commission Against Discrimination or in state court, the worker’s lawsuit for sexual harassment, age or race bias, failure to reasonably accommodate, or other discrimination issues may escape arbitration. That means employers will face the far more difficult and expensive task of defending themselves in front of a jury or at the MCAD or its federal counterpart, the Equal Employment Opportunity Commission (EEOC).

The message for employers is clear: review any and all arbitration agreements you entered with your employees and, if you still believe arbitration of discrimination claims is in the company’s best interest, make sure Chapter 151B is specifically referenced. For many employers, [Read more...]

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Wrongful Termination Tagged With: , , , , , ,
« Older Posts
Newer Posts »