Steve Riden Giving Presentation on Tortious Interference

On Tuesday, October 27, 2020, Steve Riden will be a panelist for a Strafford presentation titled “Tortious Interference With Contracts, Business Relations, and Economic Advantage: Proving and Defending Claims.”

The presentation will be conducted via webinar on October 27, 2020, from 1 to 2:30 p.m. ET. Registration information and other details are available here.

The CLE webinar will focus on proving and defending claims of tortious interference with contract, tortious interference with business relations, and tortious interference with economic advantage.

These claims arise when a person intentionally disrupts a formal agreement between two parties or when a third party takes unlawful action to deliberately drive business away or to cause another party to not enter into a business relationship with the plaintiff.

The presentation will address the following issues:

  • What must plaintiffs prove to establish a tortious interference claim?
  • What are the potential defenses to defeat tortious interference claims?
  • Can preliminary injunctive relief be obtained for tortious interference?
  • What economic damages are available to prevailing plaintiffs in tortious interference cases?
  • How do tortious interference claims overlap with related employment, unfair competition, and defamation claims?

The other panelist for the presentation is V. John Ella
of Trepanier MacGillis Battina P.A.

teve Riden is the President of the Board of Directors for the Boston College Law School Alumni Association. He 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.

Russell Beck to Speak About Protecting Trade Secrets During COVID

Russell Beck will appear on a panel of experts assembled by Massachusetts Lawyers Weekly titled “Protecting Trade Secrets in the COVID Era.”

The free event will be held on Tuesday, October 27, 2020, at 10:00 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:

Panelists will cover a wide range of topics involving the protection of trade secrets, particularly while so many businesses are dealing with a remote workforce. Topics include:

  • Understanding the landscape
  • Evaluating and updating protections
  • Communication and compliance strategies
  • Addressing third party issues

For up-to-the-minute analysis of legal issues concerning trade secrets and non-compete 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 of 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 members 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” 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 to Speak at AIPLA’s 2020 Annual Meeting

Russell Beck will be a speaker at this year’s American Intellectual Property Law Association Annual Meeting. The AIPLA’s Annual Meeting will take place on October 22 through 30, 2020.

Russell Beck will be giving a presentation on October 23rd from 1 to 2:30 p.m. ET, titled “Year in Review: TM, Trade Secret: Patent, Copyright, Design Rights.”

Russell Beck was previously appointed Chair of the AIPLA’s Trade Secret Law Committee.

For up-to-the-minute analysis of legal issues concerning trade secrets and non-compete 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 of 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 members 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” 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.

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

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?

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.

Nicole Gage and Jillian Carson Giving Presentation About Intellectual Property

On October 2, 2020, Nicole Gage and Jillian Carson will be panelists for a Boston Bar Association presentation titled “Introduction to Intellectual Property.”

The goal of the presentation is to provide an overview and introduction to the various types of intellectual property for new lawyers and law students. This presentation, which is part of the Boston Bar Association’s Friday Fundamentals series, will assist new lawyers in understanding the different types of intellectual property and related issues that they should be aware of.

The other panelists for the presentation are Jana Harris of Greenberg Traurig, LLP, and Nicole Kinsley, of Foley Hoag LLP.

The presentation will take place on Friday, October 2nd at noon via webinar. Registration information and other details are available here.

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 Presenting on Employee Mobility in the Pandemic Era

On September 23, 2020, Russell Beck will give a presentation titled: “Employee Mobility, Non-Competes, and NDAs: Protecting Trade Secrets and Customer Relationships in the Pandemic Era.” 

The complimentary webinar, presented by the International Association of Defense Counsel (IADC), will take place on Wednesday, September 23, 2020 from 11:00 a.m. to noon ET.

Registration information and other details about this free program are available here.

As described by the program notes:

Non-competes have been around nearly forever but are presently viewed pejoratively in the public discourse. Pre-COVID-19, state legislatures were competing to make their jurisdiction the next Silicon Valley by writing new laws around non-competes, thinking California’s prohibition was the missing ingredient.

The FTC is getting into the act through possible rulemaking. The explosion in employee mobility post-COVID-19 has made the protection of trade secrets and precious customer relationships more fraught than ever. Pre-pandemic, courts were carving out no-go zones for the former employer. Last spring’s mass employment dislocations has increased the risk to employers.

This Webinar will examine strategies to consider in these post-COVID-19 times and review recent decisions on injunction applications as well as recent developments in legislative changes to the law around employee mobility. Our speakers are thought leaders on these issues and able to help us separate fact from fiction.

The other speaker for the presentation is Johner T. Wilson III, of Dinsmore & Shohl LLP, and the moderator will be Peter J. Pizzi, of Walsh Pizzi O’Reilly Falanga LLP.

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 of 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 members 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” 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.

Bob Shea to Speak About Returning High Risk Employees to Work

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.

U.S. Department of Labor Issues Guidance on Tracking Hours of Employees Working Remotely

The COVID-19 pandemic has resulted in a tremendous rise in the number of employees working remotely. Also, many employees are spending parts of their “normal workday” on non-work matters, such as tending to childcare responsibilities and, as the school year starts, supporting remote schooling and/or modified school schedules for their children, which is resulting in employees working irregular, non-scheduled hours. With so many employees not physically reporting to work, and many also working hours outside their pre-pandemic schedules, employers face increased challenges tracking the hours nonexempt employees work and ensuring those employees are paid properly.

response to these challenges, the U.S. Department of Labor (DOL) recently issued Field Assistance Bulletin (FAB) No. 2020-5, providing guidance on employers’ obligation to track the number of hours of compensable work performed by employees “who are teleworking or otherwise working remotely.” The FAB reaffirms the following employer obligations under the Fair Labor Standards Act (FLSA) and the DOL’s interpretive rules:

  • Employers must compensate their employers for all hours worked and work not requested but “suffered or permitted” is work time that must compensated.
  • Employers are required to “exercise [their] control” to ensure that work is not performed if employers do not want it to be performed.
  • Employers “bear the burden of preventing work when it is not desired.” The mere promulgation of a rule against performing unscheduled work is not sufficient; employers have “the power to enforce the rule and must make every effort to do so,” including through disciplinary action.
  • An employer’s obligation to compensate employees for hours worked applies when the employer has “actual notice” or “constructive notice” that the work was performed.
  • An employer has constructive notice if the employer “has reason to be believe work is being performed,” which can occur “if the employer should have acquired knowledge of such hours through reasonable diligence.”
  • However, an employer’s obligation to “make every effort” to prevent unwanted work being performed “is not boundless,” as “[t]he reasonable diligence standard asks what the employer should have known, not what ‘it could have known.’”

Importantly, the DOL states in the FAB that an employer generally may satisfy it obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by establishing a reasonable procedure for an employee to report unscheduled work time. If an employee then “fails to report unscheduled hours worked through such a procedure [and the employer is not otherwise notified of hours worked], the employer is generally not required to investigate further to uncover unreported hours.”

According to the DOL, when an employee “fails to follow reasonable reporting procedures [he or] she prevents the employer from knowing its obligation to compensate the employee.” Of course, “the employer cannot implicitly or overtly discourage or impede accurate reporting [of hours worked], and the employer must compensate employees for all reported hours of work.”

Key Takeaways

Although for the most part the FAB reaffirms existing law and the DOL’s interpretive rules, it nevertheless provides timely guidance to employers, including those who are now facing new or expanded challenges in managing employees working remotely. The key takeaways for employers are:

  1. Employers are required to pay employees for all hours worked when employers either know or should have known the work was performed.
  2. If an employer does not want its nonexempt employees to work outside their scheduled work hours (without prior management authorization), the employer should promulgate a rule prohibiting such work and be consistent in enforcing the rule, including through disciplinary action, when appropriate.
  3. Employers should communicate clearly to nonexempt employees that they are to record and report all hours worked, including non-scheduled hours, and should have a procedure for employees to do so. This policy and procedure can be part of an employer’s broader remote work policy and, again, should be consistently enforced.
  4. Employers should never withhold pay for hours worked, even when the work time is unauthorized or not properly reported. An employer that fails to pay nonexempt employees for hours the employer knew or should have known were worked faces the prospect of substantial liability, including a multiple of the unpaid wages under the FLSA and state wage laws, plus costs and attorneys’ fees.

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.

Russell Beck and Hannah Joseph in the Boston Bar Journal on Protecting Trade Secrets

Russell Beck and Hannah Joseph’s article about strategies to protect trade secrets while office employees are largely working from home was recently published by the Boston Bar Journal.

Their article, titled “Protecting Trade Secrets During (and After) a Global Pandemic: Practical Tips for Employers” provides practical steps for employers to ensure the protection of their trade secrets and other legitimate business interests.

According to the article, COVID’s disruption to the workplace “created a precarious environment for trade secrets, as well as customer relationships and other legitimate business interests. Employees working from home have more opportunity to convert company information and customers, and some, particularly those facing involuntary unemployment, may feel driven to do so.”

Russell and Hannah further explain that, “Whether during or after the pandemic, it is vital for companies to have strong measures in place for protecting their trade secrets and other legitimate business interests, rather than to solely rely on after-the-fact litigation.”

In the article, Russell and Hannah outline specific steps that companies should take now to protect their trade secrets:

  • Know your trade secrets
  • Firm up policies and procedures
  • Educate your employees
  • Monitor your workforce

The Boston Bar Journal is a peer-reviewed, online publication of the Boston Bar Association. It presents timely information, analysis, and opinions to more than 10,000 lawyers in nearly every practice area. The Boston Bar Journal is governed by a volunteer Board of Editors dedicated to publishing outstanding articles that reflect their authors’ independent thought.

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.

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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