Russell Beck in Lawyers Weekly on Restrictive Covenants

August 1, 2022
, News, Noncompete agreements, Wage & Hour

A recent issue of Massachusetts Lawyers Weekly features discussion with Russell Beck in an article titled “Aesthetician can sue ex-employer for tortious interference, 93A.”

The article covers a Massachusetts Superior Court decision concerning a lawsuit filed by an aesthetician against her former employer. The aesthetician alleges that, after she was terminated, her former employer sent her a cease-and-desist letter and contacted third parties to warn them against doing business with her. The aesthetician contends that her prior employer does not have an enforceable noncompete agreement, and that the communications to third parties were false and derogatory. The article was written by Lawyers Weekly reporter Eric T. Berkman.

Massachusetts Lawyers WeeklyAccording to the article, the Bristol County Superior Court Judge, in Macaroco v. Vanity Lab, LLC, et al. (Lawyers Weekly No. 12-040-22), denied the former employer’s motion to dismiss, ruling that the plaintiff’s allegations that the former employer “published false and derogatory statements about the quality of her services to at least one third party, and that it sent the cease and desist letter with the intention of gaining a business advantage over her while knowing the restrictive covenants were unenforceable, were enough to state trade libel and Chapter 93A claims respectively.”

The article quotes Russell Beck as follows:

Boston employment attorney Russell Beck, who handles trade secret and noncompete disputes, said the case provides guidance to employees trying to determine if they should affirmatively sue over attempts to enforce a likely invalid restrictive covenant, or whether they should wait and see if the employer actually follows through with a lawsuit of its own.

“Most times the calculus yields a result where you don’t challenge it and you wait,” he said. “But where, like here, the employer also allegedly went so far as to tell its customers, ‘We’re going to sue this person because they’re violating their covenants and you can’t work with them,’ coupled with a situation where the employee allegedly wasn’t paid appropriately in the first place, you’ve got the makings of a good reason not to wait.”

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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 years of experience 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.

Penalties for Delayed Payment to Involuntarily Terminated Employees

April 25, 2022
, , , , Employment Law, News, Wage & Hour

Massachusetts employers can be liable for treble wages and benefits for any delay in paying terminated employees their final pay. In Reuter v. City of Methuen, No. SJC-13121 (Mass. Apr. 4, 2022), the Massachusetts Supreme Judicial Court (“SJC”) ruled that an employer who fails to make a final payment of earned wages and other benefits to an involuntarily terminated employee on their last day, as required by the Massachusetts Wage Act, must pay three times the amount of wages and benefits owed.

he ruling is a significant departure from how Massachusetts courts previously interpreted that requirement. Previously, relying on lower court rulings, many, if not most, Massachusetts employers believed that an employer making a late final payment would be on the hook for only three times the interest on the late-paid wages, not triple the wages and benefits. Many employers also believed they had a defense to treble damages if they paid the earned wages and benefits before the employee filed a complaint in court. The Reuter decision changes these long-held beliefs dramatically.

A three-week paycheck delay, then a lawsuit.

In Reuter, the city of Methuen terminated an employee after she was convicted of larceny in 2013. At the time she was fired, she had accrued $8,952.15 in unused vacation time. The city paid her that amount three weeks later. Then, one year later, the employee’s attorney sent a demand for $23,872.40: triple the amount of late vacation pay, plus attorneys’ fees, minus the amount already paid. In response, the city paid $185.42: triple the interest accrued at 12 percent for the three weeks the city delayed paying the accrued vacation pay.

The employee sued to recover triple the amount of late wages.

Court awards fired employee triple the amount of her late wages.

The trial judge held the employee was only entitled to treble the interest, accrued at 12 percent, for the three-week delay in receiving her vacation pay, plus attorneys’ fees. The defendant appealed the award of attorneys’ fees and the employee cross-appealed, again seeking triple the amount of late wages and benefits. The SJC transferred the appeal on its own motion.

The SJC ultimately remanded the case to the Superior Court, requiring the court to award the employee treble wages. On remand, the Superior Court must also award the employee’s attorneys’ fees.

The Reuter decision provides guidance to employers.

In reaching this decision, the SJC relied heavily on the rationale that a terminated employee lacks advance warning of the end of their employment. The legislature intended such employees to be paid in full on their last day to minimize disruption in their ability to maintain their standard of living.

The SJC recognized that its decision in Reuter puts employers in a challenging position when terminating an employee suddenly, such as for illegal or other misconduct, since the amount owed to them might not be readily apparent. In these instances, the SJC proposed that short-term suspension might be necessary instead of immediate termination: “[t]his may mean that employees who, like the plaintiff, have engaged in illegal or otherwise harmful conduct may have to be suspended rather than terminated for a short period of time until the employer can comply with § 148.”

Finally, note that the impact of this ruling also extends to employers’ final pay obligations for employees who voluntarily terminate their employment. In the case of voluntary terminations, the Massachusetts Wage Act requires that employees be paid their final pay no later than at the time of the employer’s next scheduled payroll. Employers who fail to pay those employees all owed wages by that time face potential damages for treble the amount of the final pay.

If you have any questions about the Massachusetts Wage Act, or need assistance with an employee termination or other workforce restructuring, 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.

 

 

Bob Shea Featured in Boston.com’s “Job Doc” Column

July 8, 2021
, , , , , Employment Law, News

Bob Shea‘s advice to departing employees was featured in Boston.com’s “Ask the Job Doc” column.

In the column, Bob answers a question about whether an employee can quit and then use vacation days as part of the two-week notice period as follows:

I consulted Robert Shea, an experienced employment lawyer and partner at Beck Reed Riden LLP in Boston. Shea shares “It’s a maybe for the vacation time and a no for the sick time. Pay for accrued, unused vacation time is considered as ‘wages’ under Massachusetts state law and must be paid out when you leave the organization. If you prefer to use your accrued vacation during your 10-day notice period, you may be able to do so but your vacation time request presumably will be subject to your employer’s policy for approving vacation time requests. Most employers have a policy that vacation days must be pre-approved before they can be taken. Potentially, your employer may decide not to approve your vacation request because it wants you to be at work during the 10-day notice period to assist in transitioning your job responsibilities.”

With respect to earned sick time, this time is treated differently under Massachusetts law. Shea advises “Massachusetts employers are not required to pay out unused earned sick time at termination. Further, and in response to your specific question, earned sick time is to be used only for one or more of the purposes set forth in the law (e.g., to care for the employee’s physical or mental illness, injury, or medical condition) and using it simply to take time off during your 10-day notice period is not one those purposes.”

In short, earned sick time is not an entitlement and there are specific reasons, outlined in the Massachusetts law, which would enable an employee take this time off.

The column was written by Pattie Hunt Sinacole, CEO and Founder of First Beacon Group LLC.

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.

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

March 3, 2021
, , Employment Law, News

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

February 25, 2021
, , , Defend Trade Secrets Act, Employment Law, News

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?

January 28, 2021
, , , , Employment Law, News, Noncompete agreements, Wage & Hour

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.

Accurate Job Descriptions Needed to Comply With Massachusetts Paid Leave Law

December 10, 2020
, Employment Law, News, Resources

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.

Massachusetts Paid Family and Medical Leave Benefits Start January 1, 2021

October 20, 2020
, , Employment Law, News, Resources

Starting January 1, 2021, most of the benefits established by the Massachusetts Paid Family and Medical Leave Law (“PFML”) become available to employees who work in the state. Specifically, as of that date, an eligible employee taking leave for any of the following reasons can receive pay during leave, which is offered by the state but funded through payroll deductions that have been in place since October 2019:

  1. Management of the employee’s own serious health condition
  2. Management of family affairs while a family member is on active duty overseas
  3. Care of a family member who is a covered service member
  4. Bonding with a child during the first 12 months after the child’s birth, adoption, or foster care placement

Paid family leave benefits to care for a family member with a serious health condition will be available starting July 1, 2021. Intermittent leave is generally allowed for all PFML reasons except for child bonding. An employer may, however, agree to intermittent leave for child bonding.

Employees must provide notice to their employer before applying for PFML benefits. Absent proof of such notice, the Massachusetts Department of Family and Medical Leave, which administers the benefit program, may deny PFML benefits. Unless impracticable due to a delay for reasons outside of the employee’s control, 30 calendar days’ notice before commencement of the leave is required.

If the application for PFML benefits is approved, there is a seven-day waiting period before benefits are payable, which will count against the total available period of leave in the benefit year. This waiting period applies for each application for benefits, with the exception of medical leave during pregnancy or recovery from childbirth if supported by documentation from a healthcare provider that this medical leave is immediately followed by family leave. In that case, the seven-day waiting period for the family leave is not required.

Employers should keep in mind that the length of PFML leave available in an employee’s benefit year varies depending on the reason for such leave. An eligible employee may receive up to 20 weeks of paid leave for their own serious health condition and up to 26 weeks to care for a family member who is a covered service member. Paid leaves for other reasons under the PFML are capped at 12 weeks.

or larger employers who are also covered by the federal Family and Medical Leave Act (“FMLA”), there is an important wrinkle that requires attention in order to ensure consistency between your FMLA policy and leave entitlements under the PFML.

Under the FMLA, eligible employees who work for covered employers are entitled to unpaid, job-protected leave in a defined 12-month period. There are four options from which an employer may choose to establish the applicable 12-month period – including a rolling 12-month period measured backward from the date an employee uses any FMLA leave. This method, however, is not permissible under the PMFL because it provides that the benefit year is the 52-week period beginning on the Sunday immediately preceding the PFML leave.

Accordingly, Massachusetts employers using the rolling backward method to determine the 12-month period under the FMLA may want to consider changing to a different calculation method for administrative ease, such as the 12-month period measured forward from the first date an employee takes FMLA leave. However, any employer that elects to change to a different method of calculating the 12-month period must give all employees at least 60 days’ advance notice of the change, and the change must occur in a way that permits employees to retain the full benefit of their leave entitlement under the method that affords the greatest benefit to the employee.

Employees 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.

If you have any questions about the intersection of the FMLA with the Massachusetts PFML, or any other questions regarding the PFML in general, 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.

Will Employers Always be Required to Permit Teleworking?

October 19, 2020
, , , , Employment Law, News, Resources

The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees when such accommodations are needed to permit employees to perform the “essential functions” of their jobs.

However, an employee who cannot perform the essential functions of a job, with or without an accommodation, is not considered to be a “qualified individual with a disability” under the ADA, and an employer generally is not required to provide an accommodation to the employee. In other words, an employer is not required to eliminate an essential job function to accommodate an employee with a disability.

Employers sometimes choose to excuse an employee from performing an essential job function (e.g., reporting to the workplace) for a period of time to accommodate the employee’s health needs.

When the time period during which the essential job function is excused becomes extended or indefinite, the employer runs the risk that the excused job function may no longer be considered an essential part of the job for purposes of analyzing rights and obligations under the ADA. As a result, the employer may be required to continue providing the accommodation.

his scenario is playing out throughout the country as employers begin asking employees who have been teleworking to return to the workplace. Some employees are reluctant to return because they have underlying health conditions which put them at increased risk of serious illness if they become infected with COVID-19. These health conditions, combined with extreme risks created by the pandemic, may mean that the employees have a disability under the ADA and are entitled to receive reasonable accommodation from their employer to permit them to perform the essential functions of their job.

If the ability to continue teleworking is the requested accommodation, employers must assess whether reporting to the workplace remains an essential job function, particularly if employees have been working remotely for several months.

EEOC Guidance

The Equal Employment Opportunity Commission (“EEOC”) addresses this topic in its recently updated “Technical Assistance Questions and Answers” on issues involving COVID-19 and the ADA and other equal opportunity laws. Assuming an employer grants telework to employees for a period of time in response to COVID-19 and then reopens the workplace and recalls employees to the worksite, the EEOC posits the question: “does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement”?

In an answer that will please employers, the EEOC states that, “[t]o the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then the request – after the workplace reopens – to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function.”

Noting that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability,” the EEOC elaborates by stating that “[t]he fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

An employer is not prohibited “from restoring all of an employee’s essential duties” when “it chooses to restore the prior work arrangement” and may evaluate “any requests for continued or new accommodations under the usual ADA rules.”

Employers, however, should understand that the remote work experience during the pandemic will be relevant when evaluating whether essential job functions can be performed through telework. According to the EEOC, the period of providing telework “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new request [for accommodation] in light of this information.”

Thus, although allowing telework during the past several months does not mean that employers cannot restore report to the workplace requirements, it does mean that employers should consider a demonstrated ability to perform essential functions remotely when responding to requests to telework as an accommodation for a disability.

As always, employers should evaluate requests for accommodation on an individualized case-by-case basis, and an employer and an employee should engage in a “flexible, cooperative interactive process” to consider what, if any, accommodations might be needed to allow the employee to perform the essential functions of the job.

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.

Bob Shea to Speak About Returning High Risk Employees to Work

September 7, 2020
, , Employment Law, News, Wage & Hour

Bob Shea will appear on a panel of experts assembled by Massachusetts Lawyers Weekly titled “Legal Aspects of Returning High Risk Employees to Work.”

The free event will be held on Tuesday, September 15, at 10 a.m. ET on Zoom. More information and registration is available here.

Anyone who is unable to attend the live session should still register, as Lawyers Weekly will send a recording and the slides after the presentation.

The panel also features:

  • Robert Young, Esq., of Bowditch and Liam O’Connell, Esq., of Nutter

Panelists will cover a wide range of topics, including:

  • Determining who is considered high-risk
  • Addressing issues under the Americans with Disabilities Act and other anti-discrimination laws
  • Considerations in implementing options such as telework or revised duties that minimize contact with other employees/customers to address high-risk employee concerns
  • What to do if employees refuse to return to work
  • Best practices checklist

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.

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