Nicole Daly to Chair Panel Presentation on Employee Handbooks

On July 20, 2017Nicole Daly will be chairing a panel of attorneys at a presentation titled “Fortifying & Scrutinizing Employee Handbooks & Policies.” The program is sponsored by Massachusetts Continuing Legal Education, Inc.

According to MCLE’s description, the program will cover practical strategies for drafting, updating, enforcing, and challenging employee handbooks and policies, as follows:

“Bring-your-own-device” policies; paid sick leave; medical marijuana; and the National Labor Relations Board’s crackdown on social media and other policies . . . these are just a few of the myriad issues that employers need to keep abreast of as they draft and update employee handbooks. Veteran employment lawyers from both sides of the bar share practical tips for, and valuable insight into, drafting—and scrutinizing—employee handbooks and policies.

This highly focused program—essential for employment lawyers seeking to update or sharpen their skills, in-house counsel reviewing existing handbooks and policies, business lawyers looking for more detailed insight into employment-law issues, and general practitioners improving issue-spotting skills—provides direct access to counter-balanced experts in a small, conversational setting.

In addition to Nicole Daly, the panel will include the following speakers:

Today’s program starts at 2 p.m. and more information is available here.

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

THE GILLETTE COMPANY vs. CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING and SHAVELOGIC, INC.

Docket: CIVIL ACTION NO. 2015-0149-BLS2
Date: September 22, 2015
Parties: THE GILLETTE COMPANY vs. CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING and SHAVELOGIC, INC.
Judge: /s/Janet L. Sanders

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIMS

The Gillette Company (Gillette) brought this action against four former employees (collectively, the “individual defendants”) alleging that they misappropriated Gillette’s trade secrets to develop a wet shaving razor for defendant ShaveLogic, LLC (ShaveLogic). Count III of the Complaint asserts that the individual defendants violated Chapter 93A §11. They now move to dismiss that count on the grounds that the wrongdoing alleged (the misappropriation of confidential information) grew out of their employment with Gillette and that disputes arising from such a relationship are not actionable under Chapter 93A. Manning v. Zuckerman, 388 Mass. 8, 12-15 (1983). Relying on Informix v. Rennell, 41 Mass.App.Ct. 161, 162-163 (1996) (Lenk, J.), the defendants argue that the fact they were no longer employees of Gillette when they made use of the confidential information is of no consequence, since there would be no wrongdoing to complain of without the confidentiality agreement that was part of their original employment relationship. This Court finds this argument to be quite persuasive.

In opposing the motion, however, Gillette relies on Specialized Technology Resources, Inc. v. JPS Elastomeric, Corp., 80 Mass.App.Ct. 841 (2011) (Greene, J.). As in the instant case, the plaintiff there alleged that the individual defendant obtained certain trade secrets during his employment with plaintiff, then in breach of a confidentiality agreement that was part of his employment contract, misappropriated that information when he went to work for the defendant JPS. Upholding the judge’s finding of liability on the 93A clam, the Appeals Court held that the former employer-employee relationship between the plaintiff and the individual defendant “does not stand as a bar” to the chapter 93A claim and that his conduct was “actionable independent of his contractual obligations.” Id. at 847. Defendants maintain that Specialized was wrongly decided and that, if confronted with the same issue, the Supreme Judicial Court would come to a contrary conclusion. This Court is inclined to agree.

To dismiss this Count in the face of binding precedent to the contrary would not be appropriate, however. This issue is best addressed on a fuller record or even after a trial on a motion for a judgment notwithstanding the verdict if that becomes necessary. Accordingly, the Motion is DENIED, without prejudice.

/s/Janet L. Sanders
Justice of the Superior Court

Stephen Riden in Forbes on Ownership of Twitter Accounts

Stephen Riden is featured in a November 17, 2011, Forbes story titled “Who Owns Employees’ Twitter Accounts?”

The article is written by Forbes staff writer, Kashmir Hill.  It follows an earlier Forbes story covering a lawsuit filed by a company against its former employee for using a Twitter account after leaving the company.

In the lawsuit, the company, Phonedog, claims that its former employee, Noah Kravitz, established a Twitter account at the company’s request, and then used that account to promote the company’s services.

When the employee left, the Twitter account went with him.  So the company sued and is seeking damages for the alleged theft of its trade secrets, i.e., the Twitter account and its followers.

In the article, Steve discusses the importance of addressing the use of social media accounts in the employee handbook.

It’s an interesting case, and illustrates the importance of employers and employees hammering out these details in advance. “It’s much cheaper to spell this out ahead of time than to litigate it after the fact,” says Stephen Riden, a partner at Beck Reed Riden LLP, who specializes in employment law. He points to Dell’s social media policy as a good example of this, calling it “forward-thinking.”

Click here to read more about the intersection of social media and employment disputes.

About Us

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

Stephen Riden in Forbes on Social Media Employment Disputes

Stephen Riden is featured in a November 14, 2011, Forbes story about a lawsuit filed by a company against its former employee for using a Twitter account after leaving the company. The article is written by Forbes staff writer, Kashmir Hill.

In the lawsuit, the company, Phonedog, claims that its former employee, Noah Kravitz, established a Twitter account at the company’s request, and then used that account to promote the company’s services.

When the employee left, the Twitter account went with him.  So the company sued and is seeking damages for the alleged theft of its trade secrets, i.e., the Twitter account and its followers.

Stephen Riden, a partner at Beck Reed Riden LLP, who specializes in employment law, says the case is ‘murky,’ in part because Kravitz included ‘Phonedog’ in his Twitter handle. ‘Employers usually address this in their employee manuals — whether an employee can include their name or brand in social networking accounts, and whether accounts are being set up for the company or the employee,’ says Riden. ‘It’s much cheaper to spell this out ahead of time than to litigate it after the fact.’

Click here to read more about the intersection of social media and employment disputes.

About Us

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

Stephen Reed Presenting Seminar for Employment Attorneys on MCAD

On October 26, 2011, Stephen Reed is giving a presentation about appearing before the Massachusetts Commission Against Discrimination (MCAD) as part of an MCLE seminar titled “On Your Feet at the MCAD.”

This seminar will help attorneys build the skills needed to make an effective case when appearing before the MCAD.

The agenda for the seminar is as follows:

  • MCAD Overview.
  • Faculty Demonstration of an Investigative Conference and Mock Investigative Conference with MCAD Investigators.
  • Faculty Demonstration of Conciliation Conference and Mock Conciliation Conference with MCAD Mediators.
  • Faculty Demonstration of Pre-hearing Conference and Mock Pre-hearing Conference with MCAD Hearing Officers.
  • Faculty Demonstration of Opening Statement and Mock Opening Statement with MCAD Hearing Officers.
  • View from the MCAD.

Stephen Reed represents employers in a wide array of labor and employment matters, from counseling companies on day-to-day employee-relations issues to litigating cases in court and administrative agencies.

About Us

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

Supreme Court Upholds Third Party Retaliation Claims Under Title VII

In one of several employment-law decisions expected to be handed down this term, the United States Supreme Court on Monday issued its decision in Thompson v. North American Stainless, LP, 562 U.S. ___ (2011), upholding the right of third parties to bring retaliation claims under Title VII without actually engaging in protected activity. In a unanimous decision authored by Justice Scalia (Justice Kagan did not participate in the case), the Court held that it is unlawful for an employer to harm one employee in an effort to retaliate against another employee who engages in protected activity.

The plaintiff Eric Thompson and his fiancée Miriam Regalado both worked at the defendant, North American Stainless (NAS). Three weeks after NAS learned that Regalado had filed a sex discrimination complaint against it at the EEOC, it fired Thompson (ostensibly because of poor performance). Thompson, in turn, filed an action against NAS for retaliation. The trial court dismissed Thompson’s complaint on the ground that he had not engaged in any protected activity. The Sixth Circuit Court of Appeals eventually upheld the dismissal. Thompson then appealed to the Supreme Court.

The Supreme Court was faced with two questions. First, did Thompson’s firing constitute unlawful retaliation? Second, if it did, did he have a cause of action under Title VII? The Court answered both questions in the affirmative.

In answering the first question, the Court looked at the anti-retaliation provision of Title VII and concluded that it “prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court found “it obvious that a reasonable worker might be dissuaded from engaging in protected activity [e.g., pursuing a sex discrimination charge] if she knew that her fiance would be fired.” The Court acknowledged the company’s argument that allowing third party retaliation claims would lead to difficult “line-drawing problems concerning the types of relationships entitled to protection.” Must there be a spousal (or near-spousal) relationship, or does protection extend to those in a dating relationship, friends, or even coworkers? But the Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.” It wrote, “Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.” Accordingly, each case must be decided on its own set of facts. Under the facts presented, the Court concluded that Thompson’s firing constituted unlawful retaliation.

In deciding the second question – whether Thompson could sue NAS for retaliation under Title VII – the Court adopted a “zone of interests” standard. Under this standard, “a plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” The Court concluded that Thompson fell with the zone of interests protected by Title VII. He was employed by NAS, and was, therefore, protected under Title VII from the company’s unlawful actions. Hurting him was the unlawful act by which NAS punished his fiancée for filing her sex discrimination charge. The Court, therefore, concluded that Thompson had standing to sue NAS.

In some respects, Thompson represents another arrow in a plaintiff’s quiver to be aimed at his or her employer under the right circumstances, But, as Justice Ginsburg pointed out in her concurring opinion (in which Justice Breyer joined), the EEOC already has long held that Title VII “prohibits retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.” According to the EEOC Compliance Manual, “such retaliation can be challenged by both the individual who engaged in the protected activity and the relative, where both are employees.”

So, while Thompson will undoubtedly spark discussion within the employment-law bar, it doesn’t really break new ground. Nevertheless, employers must remain vigilant in ensuring that terminations and other disciplinary actions must be carried out for legitimate business reasons and not for some other unlawful purpose.

This article originally appeared in Stephen B. Reed’s site, The Management-Side Lawyer.

About Us

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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 SJC Strikes Down Employer’s Wage Deduction Policy

A recent decision by the Massachusetts Supreme Judicial Court holds that an employer may not deduct money from an employee’s paycheck to compensate it for damage the employee has done to its property without running afoul of the Massachusetts Wage Act, G.L. c. 149, § 148.

In Camara v. Attorney General (SJC-10693) (January 25, 2011) (slip opinion here), the Court was faced with the following facts: ABC Disposal Services, Inc. (ABC) provides waste collection and recycling services in the New Bedford, Massachusetts area. Its employees have occasionally caused damage to company trucks and to the personal property of others while driving their routes. In an effort to promote safety and to reduce the number of accidents caused by its employees, ABC established a policy by which employees who were determined to be at fault for causing damage were given the option of either accepting disciplinary action or agreeing to set off the cost of the damage against their wages. Under the policy, determination of an employee’s fault was made exclusively by the company and was not subject to appeal. For those employees who agreed to a setoff, the average amount was between $15 and $30 per paycheck.

Apparently, one or more employees weren’t too happy about the setoff policy because in early 2006 the Attorney General’s office showed up and conducted an audit of payroll deductions for the previous two years. The audit revealed that under its setoff policy, ABC had deducted more than $21,000 from the wages of 27 different employees during the two-year period. Finding that the setoff policy violated the Wage Act, the Attorney General issued a civil citation against ABC, requiring it to make restitution to the employees and pay a civil penalty of almost $9,500. ABC appealed the Attorney General’s finding to the Superior Court, where the judge ruled in ABC’s favor and invalidated the citation.

The SJC reversed the Superior Court. In ruling against ABC, the Court reiterated that the Wage Act – the purpose of which is to protect employees and their right to wages – requires prompt and full payment of wages due an employee. To advance its underlying purpose, the Act prohibits “special contracts” between an employer and an employee by which the employee agrees to accept less than the full amount of wages due. The Court agreed with the Attorney General’s position that under the Act, “regardless of an employee’s agreement, there can be no deduction of wages unless the employer can demonstrate, in relation to that employee, the existence of a valid attachment, assignment, or setoff ….” The Court found that ABC’s setoff policy constituted the type of “special contract” generally prohibited under the Act.

The Court then turned to the question of whether the wage deductions ABC took constituted a valid setoff . The Attorney General argued that valid setoffs “implicitly involve some form of due process through the court system, or occur at an employee’s direction and in the employee’s interests.” In finding that ABC’s deductions were not a valid setoff, the Court held that ABC failed to establish that any of the employees in question were legally liable for damages, or that ABC was legally required to make payments to third parties on behalf of the employees. The Court found that even though the employees agreed to the wage deductions, they did not owe ABC a “clear and established debt,” which is a prerequisite for a valid setoff. The Court was particularly troubled by the fact that ABC was the “sole arbiter” of whether an employee was liable for damage caused to a company truck or to a third party’s property. The Court held that such unilateral decisionmaking, without any appellate process, did not establish that the employees owed ABC a clear and established debt. Consequently, the Court struck down the setoff policy.

The Camara decision is another example of the wage and hour minefield that employers must navigate on a daily basis. Before implementing a policy or procedure that affects employee pay, employers are encouraged to consult with experienced employment counsel.

This article originally appeared in Stephen B. Reed’s site, The Management-Side Lawyer.

About Us

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

Superior Court Expands Wage Act to Include Severance Pay

In a departure from established precedent, a Massachusetts Superior Court has ruled for the first time that severance pay qualifies as “wages” under the Massachusetts Wage Act, G.L. c. 149, § 148.  In Juergens v. MicroGroup, Inc. (Docket No. 10-CV-2379-D), the plaintiff Albert Juergens successfully negotiated a six-month severance provision as part of his job offer at MicroGroup, Inc.  He began his employment in October 2008, and was laid off in February 2010.  When MicroGroup failed to make the severance payment, Juergens sued, alleging – among other things – violation of the Wage Act.

In its motion to dismiss, MicroGroup relied upon Prozinski v. Northeast Real Estate Services, LLC, 59 Mass. App. Ct. 599 (2003), which for nearly eight years has stood for the proposition that severance pay does not constitute wages under the Wage Act.  In his decision denying MicroGroup’s motion, Superior Court Judge Dennis J. Curran declined to follow Prozinski.  Instead, in an analysis notable in its brevity, he relied on Wiedman v. Bradford Group, Inc., 444 Mass. 698 (2005), which, according to him, “authorized a more expansive interpretation of the Wage Act;” one that “should not be limited to exclude severance pay.” The problem with this analysis is that Wiedman dealt with the issue of unpaid commissions, which are specifically included as wages under the Wage Act.  Severance pay, on the other hand, is not referred to in the Act at all.

While lawyers representing employees are undoubtedly salivating over the Juergensdecision and the prospect of recovering treble damages and attorneys fees (both mandated under the Wage Act), they may want to wait and see whether the decision is upheld on appeal.  But assuming that plaintiff’s attorneys are not going to wait, employers must ensure that severance payments are paid on a timely basis.  Unless and until an appellate court overturns the Juergens decision, failure to make agreed-upon severance payments exposes employers to liability under the Wage Act, including treble damages and attorneys fees.

This article originally appeared in Stephen B. Reed’s site, The Management-Side Lawyer.

About Us

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