Aggressive Noncompetition Suit in Massachusetts

Our client was a salesperson who was forced to defend herself against an aggressive noncompetition suit brought by her former employer, from which she resigned after many years due to work rule changes that made it impossible for her to perform her job effectively. During the course of her work, our client signed several iterations of the company’s restrictive covenants. Though the most recent was about six years old and numerous job changes had occurred since it was signed, the employer filed a suit to enforce the form agreement. It accused our client not only of soliciting its customers but of stealing its confidential information. The company sought an emergency injunction in the superior court to block our client from performing work for her new employer.

Result:  We persuaded the court to reject the injunction, and the plaintiff quickly dismissed its lawsuit voluntarily. We worked closely with counsel for our client’s new employer to present a clear and concise factual record demonstrating that she had neither taken confidential information nor interfered with her former employer’s business contracts. Advance planning was critical to our defense – we had our client turn over to us for safe keeping cell phones and other electronic devices to ensure the plaintiff could not effectively argue she retained copies of customer data on them.

Use of inside information to transition customers to the competitor

Our client was a small business victimized by two of its former employees. After one of them was alerted she’d be laid off due to the closing of her office, she surreptitiously began to solicit customers after our client permitted her to remain at work until her formal termination date. She enlisted the help of another employee, her long-time friend, and the two solicited several customers. The second employee resigned about 6 weeks after the first was let go, and the two joined forces at a competitor. They used inside information from our client to transition several customers to the competitor.

Result: Though our client did not, unfortunately, have noncompetition agreements with its employees, we were able to collect enough information about their surreptitious activities to establish claims for misuse of confidential information and breach of the duty of loyalty that an employee owes to its employer. We filed suit and obtained an injunction that barred the employees from using our client’s information and from soliciting any of its customers.

Handyman claimed he was improperly classified as a contractor

Our client was a small business that focused on the rental and sales of residential properties. In 2013, it engaged a handyman to help make repairs at the properties it managed and to upgrade them prior to rental or sale. The handyman agreed he’d work as a contractor, since he did odd jobs for others, he said, and would not be engaged on a full-time basis by our client. The relationship did not, however, last long, and, though the handyman was paid for all work he reported, he filed suit after his worked ceased. Without first serving a demand letter, he claimed he was improperly classified as a contractor when he was in fact an employee. Though his wage claim was small – less than $1,500 – his legal fees were not, and he refused to settle the case at a reasonable level. We were retained after suit had been ongoing for a period of time.

Result: Despite substantial effort, we were unable to persuade the handyman to settle at a reasonable level. The case was forced to a jury trial on what amounted to a suit for exorbitant legal fees under the Massachusetts Wage Act. After a two-day trial, our client was vindicated. The jury found that the handyman was not owed any wages. It issued a damages award of $0.

Inappropriate Sexual Behaviors by a Supervisor

Our client was an employee of a large package delivery company. After experiencing what she believed to be inappropriate sexual behaviors by a supervisor, she reported the conduct to his superior and asked that it stop. She did not file nor did she wish to file a harassment or discrimination complaint. Though she was assured by upper management that the supervisor would curb his conduct going forward, our client soon became the target of investigations into her attendance and related issues. She was fired several times for minor infractions that were previously ignored and were common among staff. Though the company rescinded the firings each time, our client ultimately declined to return to work without assurances that she would not suffer further retaliation. When the company refused to provide it, she filed suit.

Result: After many years of litigation at the MCAD that included the dismissal of the case and, in a very rare development, its reopening after our firm located a percipient witness to the retaliation and successfully argued that his testimony was fraudulently concealed by the employer, we were able to settle the case for a substantial sum just short of an MCAD trial. The entire process took nearly 10 years, but the client’s position was fully vindicated.

Multi-day Sexual Harassment Training Program For Small Business

Our client was a design and construction company of about 150 employees. After it was threatened with a sexual harassment lawsuit by a former employee, it asked us to devise a training program aimed at reducing risks of future problems. The client’s workforce includes employees of both genders and all ages. Some work solely in the office on computer screens, others work solely in the field at construction sites, and still others travel between the two, interfacing with designers and contractors. The diversity in ages, experience levels and personal outlooks on appropriate workplace behaviors in general and discrimination issues in particular created a challenge to effective communication of the information necessary to achieve the client’s objectives.

Result:  After visiting the work site and interviewing key personnel to gain an understanding of the workforce and the workplace, we devised and implemented a multi-day sexual harassment training program. Employees were grouped based on jobs performed and authority levels. Each attended a training session that covered the same general information but was designed for the particular audience. When each was completed, attendees demonstrated a working knowledge of essential sexual harassment principles.

Take Over Ownership of Existing Entity

Our client was an individual business person who operated a regional division of a large, international company. His objective was to take over ownership of the entity he managed and oversaw on his own. At the same time, the client wished to maintain close corroboration with the parent entity and continue to sell and service its software products. In order to do so, he required the formation of a new company and the creation of partnership and related agreements that would permit smooth, continuing operations. His critical objective was a seamless transition in business operations such that customers could continue to receive high quality products and services without complications during or after the transition. Achieving this goal required employees in the regional division to transfer to the new entity under our client’s supervision and management.

Result:  After addressing several complexities that arose during negotiations and contract drafting, we successfully helped the client create the several contracts needed to achieve his objectives. He soon was owner of his new business, which continued its successful operations without a hitch.

Misclassification of Independent Contractors Defense

We defended a company against a class of employees who claimed they were misclassified as independent contractors and, consequently, denied wages due to them. The suit involved several complex legal issues that surround application of the Massachusetts Wage Act. The plaintiffs claimed that, due to their misclassification, they did not receive pay for all hours they were worked; were denied overtime pay during the 60-70 hour weeks they sometimes worked; and were forced to pay for benefits that their employer must by law provide, such as workers’ compensation insurance and mileage reimbursement. Because the Act provides for the automatic tripling of unpaid wages and the group of employees involved was potentially quite large, the client faced potential damages well into the millions of dollars. The case involved multiple defendants who shared potential liability while possessing their own individual defenses. This complicated the ability of the defendants to work together cooperatively in defense of the lawsuit.

Result:  We worked effectively with co-counsel on a joint defense and successfully defeated claims that our client was an employer or was otherwise legally responsible for any misclassification or underpayment of wages under the Wage Act.

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.

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.

Noncompetition Agreement Case in Massachusetts

Our client was a former sales representative who resigned her job to work for a competitor in a neighboring state. Though she had signed a noncompetition agreement some years earlier, the client did not believe it was relevant to her plans because she did not plan to solicit the same customers and possessed no information that might be unfairly used in the marketplace. She therefore accepted her new position and provided details about it to her soon-to-be former employer. To her surprise, the client’s resignation was met with immediate threats and, within days, a lawsuit that sought to block her from working in her industry for a year. Her new employer was also a defendant in the lawsuit. Two hearings were held regarding the former company’s request for an injunction to keep the new employer from hiring our client.

Result: We argued that the noncompetition agreement could not be used to prevent our client from working and persuaded the court to deny the injunction request. Upon issuance of the court’s decision, an agreement was reached among all parties to dismiss the lawsuit. Our client’s start of work was delayed, but she soon began her new job as a sales person.