Russell Beck was quoted in Massachusetts Lawyers Weekly on the enforcement of confidentiality agreements against employees.
The article, which appears in the July 11, 2011, issue, covers a recent decision from the United States Court of Appeals for the First Circuit that could affect employers nationwide. The court ruled that a confidentiality clause in an employment agreement was unenforceable because it would prevent employees from having certain discussions with union representatives. The First Circuit ruled that such clauses can violate the National Labor Relations Act. The article was written by Christina Pazzanese and Thomas E. Egan. A copy of the article is available here and a copy of the First Circuit’s decision can be found here.
Russell is quoted as follows:
Russell Beck, a Boston lawyer who specializes in restrictive covenant litigation, said the ruling has far-reaching ramifications for both employers and employees.
Employers will still be able to require employees to keep the terms of employment or compensation confidential, but they will need to ensure the provisions do not violate the National Labor Relations Act, a relatively easy task that is made more complicated by “ambiguity” in Massachusetts law, Beck said.
“The real issue will be what the consideration is for the agreement,” he said, noting that continued employment is not always viewed by the courts as sufficient to justify changes to agreements with restrictive covenants and can open the door to an “under duress” defense.
The court and the NLRB have not changed from applying a balancing test to a rule of law test; they have simply applied a reasonableness test, which is consistent with pre-existing law, Beck said.
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