Russell Beck to Speak About Emerging Trade Secrets Issues

On Thursday, April 1, 2021, Russell Beck will be speaking at Nera Economic Consulting’s program on trade secrets. The program, which will be held online, is titled “Trade Secrets Roundtable on Developments and Emerging Issues.”

The program starts at 12 p.m. ET on April 1, 2021. Registration is available here.

The program will address emerging issues in trade secrets litigation. The panelists will cover new developments in non-compete agreements and the expected impact on trade secrets litigation; what satisfies the reasonable efforts requirement; and considerations in early case assessment, including when and how to involve an expert. The panel will also address how the COVID-19 pandemic has impacted trade secrets litigation.

The panel also features:

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For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck and Erika Hahn Featured in Law360 on Proposed Noncompete Ban

Russell Beck and Erika Hahn‘s article on President Biden’s proposal to ban most noncompete agreements was published by Law360 under the title, “3 Ways to Plan for a Possible Federal Ban on Noncompetes.”

Their analysis begins with an overview of current federal initiatives to restrict or eliminate the use of noncompete agreements. Russell and Erika explain that, although these initiatives “are presumably well-intended, they typically rely on nascent, nuanced, inconclusive, and sometimes inconsistent research and reflexively draw misplaced causal inferences.”

According to their article, “now is the time to review and update your overall legitimate business interest protection strategy.”

Given the uncertainty around the future of noncompete agreements, Russell and Erika provide practical steps companies should consider to protect their business interests whether or not noncompete covenants are barred. These steps include consideration of the following employee agreements:

  • Narrowly-tailored noncompete agreements
  • Nondisclosure agreements
  • Nonsolicitation, noninterference and no-service agreements
  • No-recruit, no-raid and no-hire agreements
  • Invention assignment agreements
  • Springing (or “time out”) noncompetes

In their article, Russell and Erika observe that “even if noncompetes are banned, similar restrictions may survive (to the extent permitted by state law),” including the following:

  • Traditional garden leave/notice covenants: Through these agreements, employee are required to provide notice of resignation for a specified (typically, lengthy) period, during which they remain employed by their soon-to-be-former employer (but do no work) and, as a consequence, remain bound by their fiduciary duties (including to not compete).
  • Forfeiture-for-competition agreements and compensation-for-competition agreements: These are agreements by which an employee either forfeits certain benefits or pays some amount of money (often a percentage of revenues) if they engage in activities that are competitive with their former employer.
  • Compensation-for-noncompetition-choice agreements: These agreements provide for a payment (money, stock options, profit sharing or other consideration) to an employee who voluntarily chooses to refrain from competing. Unlike a forfeiture-for-competition provision (which is often considered a noncompete), nothing is forfeited. Instead, if they choose to refrain from competing, they receive compensation to which they otherwise would not have been entitled.

In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

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For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over twenty five years working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 and 850 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

U.S. News Includes Beck Reed Riden LLP in 2021 Best Law Firms Ranking

Beck Reed Riden LLP has again received national recognition in U.S News & World Report’s “Best Law Firms” publication for 2021.

For the third time, Beck Reed Riden LLP received a national ranking in addition to several regional rankings. Specifically, U.S. News & World Report designated Beck Reed Riden LLP as a Tier 3 firm nationally in the category of Litigation – Labor & Employment.

The complete list of Beck Reed Riden LLP’s rankings is as follows:

National rankings:
Regional rankings:

The 2021 rankings are based on peer reviews and client input. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America. Russell Beck, Nicole Daly, Stephen Reed, Stephen Riden, and Bob Shea were recently selected by their peers for inclusion in The Best Lawyers in America® 2021. In addition, Hannah Joseph was included in the inaugural edition of Best Lawyers: Ones to Watch.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity. The “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

U.S. News & World Report is a registered trademark of U.S. News & World Report, L.P. Best Lawyers is a registered trademark of BL Rankings, LLC.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Can – and Should – Employers Mandate COVID-19 Vaccines?

As the COVID-19 vaccines become more widely available, many employers are considering whether to mandate that their employees get vaccinated. The decision can be complicated. As they evaluate how best to proceed, employers need to understand their legal rights and obligations, and also to consider the practical consequences associated with any vaccination mandate.

Are employee vaccination mandates lawful?

Can employers lawfully require that employees get vaccinated? The answer is a qualified “yes.” Responding to employer uncertainty, on December 16, 2020 the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance addressing certain issues relating to the administration of COVID-19 vaccines to employees and the federal discrimination laws enforced by the EEOC. The EEOC guidance clarified that an employer generally can require that employees get vaccinated as a condition to returning to the workplace. An employer also can require that employees provide proof that they have been vaccinated.

owever, if an employee notifies an employer that the employee cannot get vaccinated due to a disability, under the federal Americans with Disabilities Act (ADA) the employer cannot exclude the employee from the workplace unless the employer can show that the “unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”

  • This requires the employer to conduct an individualized assessment of: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
  • Under current pandemic conditions, many employers will be able to show that such a direct threat exists. However, even if the employer can show that the unvaccinated employee would pose a direct threat, the employer must still engage in an ADA-required “interactive process” with the employee to determine whether it is possible to provide a “reasonable accommodation” to the employee (to enable the employee to work) without incurring an “undue hardship.”
  • A reasonable accommodation could potentially include permitting the employee to work in a more isolated area of the workplace, or to work remotely.

Similarly, if an employee notifies an employer that the employee cannot get vaccinated due to a sincerely held religious belief or practice, the employer must provide reasonable accommodations to the employee unless providing an accommodation would pose an undue hardship under Title VII of the Civil Rights Act of 1964.

  • In its guidance, the EEOC notes that courts have defined “undue hardship” under Title VII to include anything “having more than a de minimis cost or burden on the employer.” The EEOC cautions that employers should assume a request for religious accommodation is legitimate unless there is an objective basis to question the religious nature or sincerity of a religious belief, practice or observance.
  • Again, one form of reasonable accommodation that potentially could be required is to permit the employee to work (or continue to work) remotely. Given the widescale remote working occurring since the pandemic started, it may prove difficult for an employer to establish that permitting an employee to continue working remotely is unreasonable or poses an undue hardship on the employer.

Accordingly, if an employer mandates that employees be vaccinated and an employee refuses, the employer should determine the reason for employee’s refusal and, if the refusal is based upon an asserted disability or religious belief or practice, determine whether the refusal needs to be accommodated under the ADA or Title VII (and/or any corresponding state or local law). In addition, if any employees in the workplace are unionized, the employer should determine its collective bargaining obligations before implementing a vaccine mandate.

 Do employee vaccination mandates make sense?

ssuming an employer can lawfully mandate employee vaccinations, should the employer do so? The answer to this question will vary from employer to employer and will depend upon a variety of factors, such as whether vaccines are generally available to employees, whether employees work in close quarters and/or where social distancing is difficult, whether employees have close contact with customers or members of the public, and whether unvaccinated employees are likely to have contact with a health-compromised population. Thus, for example, health care and hospitality employers may have a more compelling reason to mandate vaccinations then agricultural employers whose employees may work outdoors and maintain social distance.

Employers also should consider that some employees may have a strong reluctance to being vaccinated (unrelated to any specific disability or religious belief or practice) and/or may object to being told by their employer that they must be vaccinated. Some individuals are fiercely anti-vaccine. Some pregnant women are concerned about the potential effects the newly developed vaccines may have on their pregnancies. Are employers prepared to terminate employees if they refuse to be vaccinated? Will drawing a hardline on mandating vaccinations lead to business operational issues and create employee morale problems?

There is precedent for vaccine mandates, of course. For years, many hospitals and health care companies have required flu vaccines and tuberculosis testing for employees. Schools generally require vaccines against measles, mumps and rubella. Notably, however, unlike these other vaccines, the COVID-19 vaccines are not yet approved by the U.S. Food and Drug Administration; they are currently only “authorized for emergency use” pending further studies. Thus, there is some possibility that employers could face liability for requiring COVID-19 vaccinations if employees experience significant adverse side effects.

Early surveys suggest that currently most employers are deciding not to mandate vaccinations. Many employers are choosing to encourage, not require, that employees be vaccinated. Some employers are choosing to require vaccinations only for certain positions, such as positions involving travel or in-person contact with the public. Of course, employer attitudes and approaches with respect to vaccine mandates may change as vaccines become more available, as further government guidance is provided, and/or as new medical information becomes available.

As an alternative to mandating vaccines, some employers are offering incentives for getting vaccinated, such as paid time off from work or gift cards. Although modest incentives are likely permissible, there is some uncertainty concerning whether providing benefits to employees who get vaccinated, while not providing such benefits to employees who do not get vaccinated due to their disabilities or religious beliefs or practice, might constitute unlawful discrimination. The EEOC has raised concerns in the past about what constitutes “voluntary participation” in an employer “wellness program” under the ADA and other discrimination laws. Consequently, on February 1, 2021, a broad coalition of over forty employer and industry organizations sent a letter to the Chair of the EEOC urging the EEOC “to issue guidance providing clarification on the extent to which employers may offer their employees incentives to vaccinate.” To date, no such guidance has been provided.

Proceed with Caution

Any decision to mandate employee vaccinations should be evaluated with careful consideration of both legal obligations and practical consequences. Substantial legal risks exist, and employers should consult with counsel before implementing any vaccine mandate policy as well as before taking any adverse action with respect to an employee who refuses to get vaccinated. Employers should also obtain legal advice before offering any significant benefits to employees as vaccination incentives. The COVID-19 pandemic has presented employers with many novel HR issues over the past twelve months. It continues to be critically important for employers to exercise sound judgment and proceed with caution.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Steve Riden to Speak About Employee Duty of Loyalty Litigation

On Friday, February 26, 2021, Steve Riden will be a panelist for a Federal Bar Association presentation titled “Employee Duty of Loyalty Litigation – A National Survey.” The presentation is part of the Federal Bar Association’s 2021 Biennial Labor and Employment Law Conference.

The presentation will be conducted via webinar on February 26, 2021, from 3 to 4 p.m. ET. Registration information and other details are available here.

The other panelists for the presentation are:

The webinar will survey the law of various states concerning the duty of loyalty and how they differ, including recent federal and state court decisions in this area. The panelists will discuss topics particular to federal practice, such as which state’s laws apply for common law claims in conjunction with a breach of contract claim containing a choice-of-law provision; whether the DTSA preempts certain duty-of-loyalty claims; and whether a claimed breach of the duty of loyalty can be a “faithless servant” defense to a wage claim under the Fair Labor Standards Act.

This seminar will provide an overview of duty of loyalty litigation across the country and tips for litigating them from both the plaintiff and defendant standpoint.

teve Riden is the current Chair of the Board of Editors for the Boston Bar Journal. Previously, Steve was the Co-Chair of the Boston Bar Association’s Business and Commercial Litigation Section.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

What Can Employers Expect from the Biden Administration?

When a Democratic Party President succeeds a Republican Party President (or vice versa) employers can expect a shift in federal employment law policy. The shift in policy plays out through new administration-supported legislation and Presidential executive orders, and, at the federal agency level, through new agency leadership, new regulations and interpretative guidance, and changes in enforcement priorities and initiatives.

This year, in the transfer of power from the Trump administration to the Biden administration, employers may see a more dramatic swing in employment law policy than seen in most changes in presidential administrations, and potentially even more than the swing seen with the change from President Obama to President Trump.

Here are some labor and employment law areas in which employers should expect to see significant changes:

OSHA/Workplace Safety

President Biden has been critical of the Occupational Safety and Health Administration’s (“OSHA’s”) actions in maintaining workplace safety during the COVID-19 pandemic, including OSHA’s reliance on the “general duty” standard for enforcing employer obligations, and he has stated that he would demand more aggressive action.

True to his word, on January 21, 2021, his first full day in office, President Biden issued an executive order (“EO”) requiring OSHA, within two weeks, to consider whether an “emergency COVID-19 standard” is necessary to protect workplaces and to implement such a standard by no later than March 15, 2021. The EO also requires OSHA, within two weeks, to issue revised guidance to employers on workplace safety during the pandemic.

More broadly, the EO requires OSHA to review its current enforcement efforts and “identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement.” OSHA will be considering that employers complete more detailed OSHA 300 Logs on workplace injuries and illnesses. In general, employers should expect that OSHA under President Biden will taking a larger and more active role in workplace safety issues related to COVID-19 and beyond.

NLRA/Traditional Labor

Candidate Biden promised he would “be the most pro-union president you’ve ever seen.” Now, as President, he is immediately taking steps to fulfill that promise, including nominating Boston Mayor Marty Walsh, a former union leader, to be U.S. Secretary of Labor, naming a current Democrat Board Member to be Chair of the National Labor Relations Board (“NLRB” or “Board”) and firing the NLRB’s employer-friendly General Counsel when he refused to resign. He will be filling an open slot on the NLRB’s five member Board with a Democrat and, in August, will be able fill another slot with a Democrat when a Republican Board Member’s term expires. By 2022, Democrats will likely hold three of the five spots on the Board.

he “Biden Board” likely will seek to bring back some of the pro-union measures taken by the Obama Board, including accelerated (often called “ambush”) election procedures and timetables that tended to make it easier for unions to win elections and rules that treated as unlawful some employer prohibitions on anti-employer statements on social media. The Biden Board may take steps to broaden union access to employees, to restrict employer anti-union campaign, and to undo the current joint-employer rule that has been an obstacle to union organizing.

The action that would have the greatest impact on the traditional labor landscape would be the passage of the Protecting the Right to Organize (“PRO”) Act, which contains a wish list of pro-union changes to the National Labor Relations Act. (“NLRA”). The PRO Act would, among many other things, create a private right of action for alleged NLRA violations similar to those available under federal employment discrimination statutes, and also provide for greatly enhanced penalties such as double or triple back pay awards, emotional distress damages, individual liability for officers and executives, and attorneys’ fee awards. While passage of this legislation would be the most impactful action, it is also the action least likely to occur because Democrats are unlikely to have enough votes (60) to overcome a Republican filibuster in the Senate.

Wage and Hour Law

President Biden has advocated for a substantial increase in the federal minimum wage – up to $15 by the year 2026. On January 22, 2021, he jump-started that effort by announcing that he was directing his administration to start the work that would allow him to issue an EO within his first 100 days in office requiring federal contractors to pay a $15 minimum hourly wage to workers. In addition, under Secretary of Labor Walsh (assuming he is confirmed, the first former union official to serve as Secretary of Labor in half a century), the U.S. Department of Labor (“DOL”) will most certainly take a more pro-labor approach in its interpretation and enforcement of the federal Fair Labor Standards Act and other wage and hour laws.

Under President Trump, the DOL scaled back significantly the Obama DOL’s overtime regulations and promulgated its own employer-friendly regulations establishing new tests for determining joint-employer and independent contractor status. The DOL now is likely to go in the other direction on these and other wage and hour issues. President Biden and the DOL may take steps to limit the use of mandatory arbitration and class action waivers for claims under federal wage and hour laws. Overall, employers should expect that the DOL will have a progressive pro-labor agenda.

Paid Leave

Candidate Biden advocated for legislation that would provide 12 weeks of paid leave for all workers for their own or a family member’s serious health condition. Upon taking office on January 20th President Biden issued the “American Rescue Plan” to address the COVID-19 pandemic and boost the U.S. economy. Among other things, the plan would extend the leave provisions under the Families First Coronavirus Response Act through September 2021 and expand the law to require employers to “provide over 14 weeks of paid sick and family and medical leave.”

On January 22, President Biden announced that he was directing his administration to start the work that would allow him to issue an EO within his first 100 days in office requiring federal contractors to provide “emergency paid leave” to workers. Although it is unclear what form of more broadly applicable paid leave law can make it through Congress, President Biden has made clear his intention to make federally-mandated paid leave a part of the workplace law landscape

Pay Equity

Candidate Biden stated that he supports a bill titled the “Paycheck Fairness Act.” The bill’s stated purpose is to address wage discrimination on the basis of sex and reduce the gender pay gap. It would, among other things, restrict the use of the “bona fide factor” defense to pay discrimination claims and increase civil penalties for violations of equal pay requirements. The Democrat-controlled House passed the bill in 2019 but the Republican-controlled Senate took no action on it. Now, President Biden’s election, combined with the Democrat victories in the Senate run-off elections in Georgia, increase the chances of the bill becoming law.

More generally, President Biden appears committed to addressing gender and racial pay inequities. On January 21, 2021, he appointed Charlotte Burrows as Chair of the Equal Employment Opportunity Commission. Chair Burrows served as an Associate Deputy General in the Obama administration and most recently served as the Executive Director at the William Institute of the UCLA Law School, focusing on strategies to attain equality for sexual and gender minorities.

Immigration

President Biden intends to pursue a broad immigration reform agenda. He has proposed comprehensive legislation aimed at creating a path to citizenship for millions of undocumented immigrants living in the U.S., including individuals brought to the country as children (so-called “Dreamers”), eliminating green card quotas, reducing lengthy backlogs and improving efficiencies for work visa programs. On his first day in office, he issued a series of EOs that reversed Trump administration policies (1) restricting entry to the U.S. for people from certain Muslim-majority countries (the so-called “Muslim Ban”) and (2) ending work authorization for Deferred Action for Childhood Arrivals (“DACA”) recipients.

Noncompetes

President-elect Biden has stated that he “will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.” His position is premised, at least in part, on an assumption that for a large percentage of the American workforce noncompetes have restricted employees’ freedom to move to other jobs and earn higher pay. My colleague Russell Beck has written a detailed analysis of President Biden’s proposed noncompete ban, including protection strategies and steps for employers to take now. Russell’s analysis can be found here.

Every change in administration that includes a change from one party to the other results in significant policy changes and new legislative and administrative actions. In the dynamic and politically sensitive world of labor and employment law, these changes in policy and actions can be quite substantial. And, on top of that, this year we’ve had a change in administrations involving two leaders who hold fundamentally different views on what is best for employers and for employees, and what role government should play in setting and enforcing workplace laws. Consequently, employers should expect more changes at this time than they normally see every four or eight years.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Nicole Gage and Hannah T. Joseph to Speak at Intellectual Property Year in Review

Nicole Gage and Hannah T. Joseph will be speaking at this year’s Boston Bar Association’s 21st Annual Intellectual Property Year in Review. The virtual event will be held on Thursday, January 14, 2021, from 10:00 am to 3 p.m. More information is available here.

Nicole Gage will be the moderator for the Keynote Address and Q&A by The Honorable William G. Young, Judge, U. S. District Court, District of Massachusetts. Nicole is a member of the Advisory Committee for the 21st Annual IP Year in Review.

Hannah Joseph will be speaking on the Trade Secrets panel.

The Intellectual Property Year in Review is the premier IP law event of the year. Panelists will provide attendees with informationi about landmark cases and legislative changes and offer insights into what’s ahead in patents, copyright, trademarks, trade secrets, and more.

Nicole Gage has over 20 years of experience advising clients with respect to intellectual property matters. Her practice focuses on all areas of trademark and unfair competition law including clearance, portfolio management, prosecution, enforcement, litigation, due diligence, false advertising, licensing, trademark use and misuse, and use in connection with social media. She has significant experience in the Federal Courts and at the Trademark Trial and Appeal Board (TTAB).

Hannah Joseph is a senior attorney with the firm’s business litigation group, where she focuses her practice on the growing areas of trade secrets and restrictive covenants law, employee mobility, and unfair competition. She represents both corporate and individual clients on issues concerning the protection of trade secrets and enforceability of noncompete, nonsolicitation, and nondisclosure agreements.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck and Erika Hahn in Lawyers Weekly on Biden’s Proposal to Ban Noncompetes

White HouseRussell Beck and Erika Hahn‘s article about President-elect Biden’s announcement of a policy to ban most noncompete agreements was recently published by Massachusetts Lawyers Weekly.

Their article, titled “Biden’s proposed ban of (most) noncompetes: steps to take (now) to protect trade secrets and goodwill,” provides thorough analysis of Joe Biden’s proposed non-compete ban, discussion of the rationale used to support the President-elect’s position, and practical steps companies should consider to protect their business interests whether or not noncompete covenants are barred.

According to the article, Biden’s proposal to ban noncompetes appears to ignore the policy recommendations of a 2016 Treasury Department report. Russell and Erika explain that the Biden administration’s proposal appears to “ignore the Treasury report’s ultimate conclusions and recommendations — as well as those of the Obama administration’s follow-up report and resulting Call to Action — all of which called for a rational response, as opposed to a throw-the-baby-out-with-the-bathwater response, focused on addressing the abuses, rather than proper use, of noncompetes.”

Russell and Erika further explain,

While a near complete ban may not be imminent, protecting trade secrets, confidential business information, goodwill, and other recognized legitimate business interests does not happen by accident. It takes planning.

And, when one of the key tools is in the crosshairs, companies need to focus more closely on the remaining options, which can work together to form a cohesive back-up plan when noncompetes are not available — or even when they are simply not necessary or enforceable in the particular circumstances. 

The article suggests practical tools that companies can use to protect their interests, including nonsolicitation and nondisclosure agreements.

Massachusetts Lawyers Weekly

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over twenty five years working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 and 850 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Accurate Job Descriptions Needed to Comply With Massachusetts Paid Leave Law

Updated and accurate job descriptions serve many important functions for an employer, including – but certainly not limited to – establishing essential functions of a job for purposes of the Americans with Disabilities Act and its state law counterparts; determining whether a reasonable accommodation is available for a disabled employee under those same statutes; evaluating whether a particular position is exempt or non-exempt under the Fair Labor Standards Act; and managing performance. As of January 1, 2021, updated and accurate job descriptions are also important for purposes of complying with the Massachusetts Paid Family and Medical Leave Law (“PFML”).

As of January 1, 2021, most of the benefits established by PFML become available to employees who work in Massachusetts. For employers who participate in the state-run program (i.e., those who are not wholly insured by a private plan), updated and accurate job descriptions will play an important role in complying with the procedural requirements of Department of Family and Medical Leave (the “Department”).

mployees who want to apply for PFML leave must do the following at least 30 days in advance of the anticipated start of leave (unless a delay is beyond the employee’s control, in which case the employee should do so as soon as is practicable):  (1) notify the employer of the need for leave and the anticipated start date; and (2) apply for leave with the Department of Family and Medical leave online here.

Within five business days after receiving an application, the Department will notify the employer of the employee’s application and request that the employer provide certain information to the Department within ten business days. Among the information required by the Department is a description of the employee’s position.

In addition, when PFML leave is related to an employee’s own serious health condition, the employer may require a fitness-for-duty certification as a condition of the employee’s return to work, provided that the employer has a uniformly-applied policy or practice for all similarly-situated employees. If an employer chooses to implement this requirement, it must provide the employee with a job description and notice of this requirement within ten business days of the notice of approval of leave from the Department.

Given the roles that job descriptions have in the procedures for applying for and receiving PFML benefits, it is advisable that employers revisit those descriptions to ensure that any information they will be providing to the Department or an employee on PFML leave is accurate and relevant.

If you have any questions about the Massachusetts PFML or need assistance evaluating and updated your organizations job descriptions, Beck Reed Riden LLP’s employment attorneys are available to assist.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck Named Among Top 10 Super Lawyers in Massachusetts

Super Lawyers Magazine has selected Russell Beck as one of the Top 10 Super Lawyers in Massachusetts for 2020.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40. The Super Lawyers selection process is described in detail here.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over twenty five years working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 and 850 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

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