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

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: , , , , , ,

Massachusetts Employment Law: Getting Laid Off Video

August 22, 2009 By

Massachusetts employment lawyer, Attorney Jack Merrill discusses “Getting Laid Off” by your employer in Massachusetts.

Massachusetts employment lawyer, Attorney Jack Merrill provides legal services to employees, employers and businesses throughout the Boston metro west and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

Filed Under: Employee - Employment Law, Massachusetts Employment Law, Video on Employment Law

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: , , , , , ,

Wrongful Termination Law in Massachusetts

July 10, 2009 By

Wrongful termination is a phrase frequently used by employers and employees alike to cover the whole rubric of potential causes of action that an individual could have against the company when he or she is fired.

Wrongful termination means, simply, that there is some kind of legal action that the an employee may take after being let go by an employer.

There are several discrete categories of wrongful termination in Massachusetts. Under the local law, all employees, unless they have a specific contract that they have negotiated with their employer, either in writing or orally, are At-Will employees.  This means they can leave whenever they choose to, or be let go whenever the employer chooses to let them go.  There are a couple of very narrow exceptions to the At-Will rule in Massachusetts that would constitute Wrongful Termination under the States Law. The exceptions are:

  1. A violation of Good Faith and Fair Dealing, meaning an employer, in a typical case, lets an employee go to avoid paying an employee a commission or large sum of compensation that would normally be due.
  2. Another way to violate the At-Will law is if an employer lets someone go in violation of something called the Public Policy Exception. There are very few Public Policy Exceptions. However, if an employee is serving on a jury, testifying in court, or performing some other act that the government wants to protect, the employer can not fire the employee for those actions.
  3. An employer also cannot fire or discharge someone in Massachusetts if they have a contract that provides otherwise. Sometimes employees have an employment contract that says,  for example,  they can only be fired for specific reasons, such as stealing from the employer, insubordination, or committing a crime. Where a company violates those terms, a breach of contract claim can arise in Massachusetts and that would be Wrongful Termination.
  4. The final category for Wrongful Termination involves discrimination cases. In Massachusetts, and under Federal Law, you can not let an employee go or treat them less favorably because of their race, gender, national origin, age, sexual orientation, handicap status, or genetic disposition.

If any of these factors are in play in your situation when you are let go from work, call me for a consultation.

If you have questions about Massachusetts employment law, consult an qualified Massachusetts employment lawyer before you take action.

Boston employment lawyer, Attorney Jack Merrill provides legal services to employees and employers throughout the Boston metro and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

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

Employers Beware: Pay Wages on Time

May 14, 2009 By

If there’s one thing Massachusetts courts are making clear lately, it’s that employers better pay their employees what they earn, and they’d better do it on time. They are slapping those who don’t with triple damage awards, adding 12 percent interest, and ordering them to pay their employees’ legal fees. When the bill comes due, employers have good reason to question both their own judgment and that of the well-paid lawyers who advised them.

The Massachusetts Wage Act now says that triple damage awards to employees are mandatory. Workers who don’t get what’s owed to them on time also get their lawyer fees paid by the company. Courts are running hard on these points, showing little sympathy for employers, even those who make good faith errors, and interpreting gray areas in favor of employees. Employers need to understand this and get good legal advice before withholding disputed wages.

In a case I recently tried, Countrywide Home Loans was ordered to pay my client more than $130,000 after refusing to give him deferred bonuses and commissions that totaled about $30,000. In another case, a local attorney was ordered to pay $519,000 plus interest after he failed to pay a referral fee to another lawyer. In both of these cases, the law was read expansively to favor the plaintiff. The message to employers is clear: when in doubt, settle wage disputes or just pay what’s due to your employees. And, by the way, make sure the lawyer you rely on is well versed in this area of law.

Massachusetts employment lawyer Attorney Jack Merrill provides legal services to employees, employers and businesses throughout the Boston metro west and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

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