The currently pending Senate proposal S.2625 – so-called non-compete “reform” legislation – was filed on Monday, July 23, 2018, in the Massachusetts Senate. It is not a stand-alone piece of legislation, but instead is buried deep within a $600 million appropriations bill which was issued from the Senate Ways and Means Committee. It would change drastically the legal landscape for enforcement of non-compete agrees. For example, it would require salary payments to the ex-employee during the non-compete period. It would also outlaw enforcement of a non-compete contract where an employee has been laid off without cause. It is a highly controversial piece of legislation which has been debated, in various iterations, for nearly a decade.

To read my recent op-ed published in the Boston Business Journal on this topic, click here.

On March 5, 2018 I reported that the EEOC announced a settlement in its first lawsuit alleging that parental leave policies which granted more rights to mothers discriminated against new fathers. Details on the lawsuit’s allegations can be found here. The EEOC’s press release was devoid of details about the terms of the settlement. On July 17, the details became public, and they are likely to send shock waves through HR departments and C suites. Continue Reading Estee Lauder Agrees to Pay $1.1 Million to Settle Discrimination Suit Filed by EEOC on Behalf of New Dads

Photo: aldern82 via Flickr (CC by SA 2.0)

It took barely 24 hours before what is believed to be the first lawsuit  under the Massachusetts Equal Pay Act (“MEPA”) to be filed.  On Monday morning, July 2, suit was filed on behalf of Elizabeth Rowe, principal flautist for the Boston Symphony Orchestra, in Suffolk County Superior Court.  Rowe was hired for the role by the BSO in 2004, and the lawsuit claims that she has asked for years to be paid the same as the principal oboe player, a male.  She alleges that the role of principal oboe is the one most comparable to her position and that paying her some $70,000 less per year amounts to a violation of MEPA.

Continue Reading First Lawsuit Filed Under Massachusetts Equal Pay Act

A bill just passed by the Massachusetts House and Senate, with uncharacteristic speed and bipartisan support, has been touted as a “grand bargain,” meant to circumvent political wrangling over several contentious ballot questions slated to be put before the voters this fall. The wide-ranging bill establishes paid family and medical leave, raises the minimum wage, and eliminates premium Sunday pay, among other things. The bill now goes to Governor Baker, who is expected to sign the measure into law. Continue Reading Massachusetts Legislators’ “Grand Bargain” Establishes Paid Medical Leave and Increases Minimum Wage

In a long awaited decision reversing 26 years of existing precedent, on June 21st the United States Supreme Court ruled in South Dakota  v. Wayfair, Inc., that states and other taxing jurisdictions could require out of state retailers to collect sales tax on online sales even though the retailers had no physical presence in the taxing jurisdiction.

Continue Reading United States Supreme Court Declares Open Tax Season on On-line Retailers

On June 6, 2018, National Labor Relations Board (“NLRB”) General Counsel Peter B. Robb issued a memorandum (“GC 18-04”) to NLRB Regional Directors providing guidance on how to analyze employee handbook rules in the wake of the Board’s recent decision in The Boeing Co., 365 NLRB No. 154 (2017).  This guidance provides employers with a helpful road map for navigating the Board’s new three-category—and more employer-friendly—approach to evaluating the lawfulness of employer handbook rules by balancing the employer’s interests against an employee’s right to engage in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA).

Continue Reading NLRB General Counsel Issues Post-Boeing Guidance Memorandum On Employer Handbook Rules

In 2010, Massachusetts enacted sweeping reforms to its criminal offender record information (CORI) system.  Among the changes was a provision prohibiting most employers from asking about criminal history on initial employment applications.  The measure is known as “ban the box” because it outlaws the once-common practice of inquiring about criminal background by including a checkbox on employment applications.

Continue Reading Massachusetts Attorney General Steps Up Enforcement of “Ban the Box” Law

Photo: Beatrice Murch via Flickr (CC by 2.0)

In a 5-4 decision, the United States Supreme Court has held that employers may enforce arbitration agreements signed by employees that bar class-action lawsuits and require individualized arbitration. In so holding, the Court found that the Federal Arbitration Act (FAA) instructs courts to enforce the terms of arbitration agreements, including terms requiring one-on-one arbitration proceedings.  It also found that the National Labor Relations Act (NLRA) says nothing about how legal disputes must be resolved.  “Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties’ agreements unlawful,” wrote Justice Neil Gorsuch for the majority.

Continue Reading Employers Get Green Light for One-on-One Arbitration Clauses in Employment Agreements

Photo: Jason Howie via Flickr (CC by 2.0)

The stories are legendary:  the employee who calls in sick and then posts a picture of himself dressed as a fairy at a Halloween party hundreds of miles away; the video of the salesman in a drunken stupor at a conference he is attending on the company’s dime; and just this past week, the New York City lawyer railing against an employee and a customer speaking Spanish to one another in a restaurant.  An individual’s social media can be a treasure trove of information about a person and could give insight into a person’s character and habits that might not become apparent until months or years of employment have gone by, perhaps never.

Continue Reading To Google or Not to Google: The Potential Pitfalls of Using Social Media in Hiring

Back in September, we reported that the Trump Administration had abandoned the appeal of an injunction blocking new overtime rules from going into effect.  That action effectively killed the Obama Administration’s effort to update and expand the overtime rule by raising the “salary level test” for executive, administrative, and professional workers from $455 per week to $913 per week.  At the same time, the Trump Administration signaled that a scaled-down update of the overtime rule was on the way … eventually.

Continue Reading DOL Pushes Release of Proposed Changes to Overtime Rule to January 2019