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Posts Tagged ‘Employment Law’

Judge rules Massachusetts public accommodation cases can skip MCAD and go directly to court

Posted on: July 26th, 2021

By: Jennifer Markowski and Lori Eller

In a recent Massachusetts Superior Court Order, Catherine Peters v. Boston Properties, Inc., et al. Memorandum of Decision and Order on Defendants’ Motion for Judgment on the Pleadings, Judge Debra A. Squires-Lee held that exhaustion of administrative remedies by first filing with the Massachusetts Commission Against Discrimination (MCAD) is not a prerequisite to filing a complaint alleging discrimination in a place of public accommodation.

Plaintiff, Catherine Peters, sought relief for discrimination in a place of public accommodation and violation of her civil rights after allegedly being thrown to the ground and detained for over twenty minutes by security officers at the Prudential Center in Boston, Massachusetts. She claimed that the security officers discriminated against her based on race and gender.

Peters first brought a charge of discrimination in the MCAD which resulted in the issuance of a probable cause finding against BP Inc., Allied, the Shops at the Prudential Center, and Jane / John Doe Allied Universal. Peters later learned of the correct entity that owns the Prudential Center and the names of the individual security officers involved. When Peters moved to amend her charge to substitute those parties, the MCAD denied her motion. She then filed her claims in Suffolk Superior Court.

Charges of discrimination in a place of public accommodation are brought under G. L. c. 272 § 98. However, the damages recoverable under the public accommodation statute are enumerated in Section 5 of Chapter 151B. The defendants sought dismissal of Peters’ claims on the basis that Peters had failed to exhaust her administrative remedies pursuant to Section 9 of Chapter 151B. Judge Squires-Lee rejected the defendants’ argument and agreed with Peters that public accommodation cases are unlike other allegations of discrimination under Chapter 151B because the exclusivity provision found in Section 9 requires exhaustion of administrative remedies only for those acts outlined in Section 4. Section 4 prohibits discrimination by public and private employers against employees, by persons in the insurance and bond business, persons in the mortgage business, and persons in the business of selling or renting real estate, but does not expressly proscribe discrimination in public accommodations. As such, public accommodation claims are not governed by the exclusivity provision.

In sum, while plaintiffs alleging discrimination in a place of public accommodation are permitted to file with the MCAD, they are not required to do so and can go directly to court for relief.

For more information, please contact Jennifer Markowski at [email protected] or Lori Eller at [email protected]

Departing Lawyers’ “Theft of Files” May Lead to a Violation of M.G.L.c. 93A

Posted on: April 29th, 2021

By: Nancy Reimer, Jennifer Markowski and Lori Eller

The Massachusetts Supreme Judicial Court recently held in Governo Law Firm LLC v. Bergeron, 487 Mass. 188 (2021), that the inapplicability of G. L. c. 93A, § 11, to disputes arising from an employment relationship does not mean that an employee never can be liable to its employer under G. L. c. 93A, § 11. Rather, where an employee misappropriates her employer’s proprietary materials during the course of employment and then later uses the materials in the marketplace, that conduct is not purely internal and it comprises a marketplace transaction that may give rise to a claim under G. L. c. 93A.

In this case, Governo Law Firm (GLF) sued to protect materials stolen by a group of its nonequity partners as they left GLF and prepared to start a new law firm, CMBG3 Law LLC. Governo had created a research library containing over 20 years of materials it had collected on asbestos litigation, along with an electronic database used to search the library. The nonequity partners secretly downloaded the library and databases, along with administrative materials such as GLF’s employee handbook and client lists while still employed with GLF. They then made an offer to GLF’s sole owner to purchase GLF and stated if the offer was not accepted that same day, they would resign. GLF’s owner rejected the offer and—too late—locked the attorneys out of GLF’s computer systems. The next day, those attorneys opened for business under CMBG3 and began using the stolen materials.

The jury in the Superior Court action found some or all of the attorney defendants liable for conversion, breach of the duty of loyalty, and conspiracy, but found none of them liable for unfair or deceptive trade practices in violation of G.L c. 93A, § 11. CMBG3 was found liable for conversion and civil conspiracy. GLF was awarded $900,000 in damages calculated by lost profits and a permanent injunction was issued enjoining the defendants from using the library and the databases.

GLF appealed the judge’s trial instructions and his posttrial rulings regarding the 93A claim, the scope of the injunction, and interest on the damages award. The SJC on appeal agreed with GLF and held the judge erroneously instructed the jury that the defendants’ conduct prior to their separation of employment, namely the stealing of the materials while still employed at GLF, was not relevant to GLF’s claim under G.L. c. 93A § 11. The SJC held that in order for the jury to resolve the G. L. c. 93A, § 11 claim the jury should have considered whether the attorney defendants’ theft and subsequent use of GLF’s materials amounted to unfair or deceptive conduct.

The SJC further determined it was an abuse of discretion for the trial judge to exclude the stolen administrative materials, such as the employee handbook and client list, from the scope of the permanent injunction.  

Regarding interest, the SJC held that while prejudgment interest was not required due to the non-compensatory nature of the damages, which were awarded on the basis of the defendant’s profits and not to make the plaintiff whole, post-judgment interest was appropriate and would accrue from the date of entry of initial judgment until payment in full. This was contrary to the position taken by the attorney defendants and the trial judge that the deposit of damages with the court, rather than directly to GLF, would terminate the accrual of post-judgment interest.

If you have any questions of would like more information, please contact Nancy Reimer at  [email protected], Jennifer Markowski at [email protected] or any other member of our Lawyers’ Professional Liability Practice Group, or Employment Law Group a list of which can be found at

Update to Massachusetts Paid Family and Medical Leave

Posted on: March 2nd, 2021

By: Janet Barringer and Lori Eller

The Massachusetts Department of Family and Medical Leave (“the Department”) has continued to update its guidance and resources on the Massachusetts Paid Family and Medical Leave Law (“PFML”), which went into effect at the beginning of 2021. It is important for employers to stay updated on this guidance and their requirements under the PFML.

As of January 1, 2021, most of the paid family and medical leave benefits are now available to Massachusetts workers. These paid benefits include:

  • Up to 20 weeks of paid medical leave to manage an employee’s own serious health condition;
  • Up to 12 weeks of paid family leave to bond with a child newly born, adopted, or placed in foster care, or to manage family affairs while a family member is on active duty overseas or has been notified of an impending call to active duty in the Armed Forces; and
  • Up to 26 weeks of paid family leave to care for a family member who is a covered Service Member with a serious health condition.

The remainder of paid family leave benefits, such as up to 12 weeks of paid leave benefits to care for a family member with a serious health condition, will become available on July 1 of this year. These benefits apply to employers of all sizes and can run concurrently with FMLA leave. The benefits are capped at 26 weeks total of leave in a single benefit year for covered individuals. More detail about the specific provisions of the PFML law can be found in our previous blog about the topic.

As a result of the PFML’s implementation, the Department has continually issued new guidance for employers and for workers. The Department has stated that PFML benefits run concurrently with any employer-provided PTO, sick time, or vacation time. Thus, if an employee uses a sick day for a situation where the reason for the sick day also qualifies for PFML benefits, that sick day will reduce the total PFML days available to that employee. Further, if an employee on leave receives short-term disability benefits or paid parental leave provided by an employer plan, and such plan states it runs concurrently with the PFML, then the worker can obtain both PFML benefits and also a “top off” amount from the employer. This total amount of the maximum PFML benefit per week, plus the employer’s “top off” amount, cannot exceed the employee’s average weekly salary. The Department additionally issued guidance on intermittent leave and reduced leave schedule. This includes setting minimum leave time increments, and a default if the employer sets no minimum.

Finally, employers are eligible for reimbursement for payments made to workers if they provide short term disability benefits or a paid family/medical leave program and participate in the PFML, and if the benefits are equal to or greater than what the employee would receive under the PFML. However, payments to workers for PTO, sick time, or vacation time that was either earned/accrued or under a private plan are not eligible for this reimbursement.

The Department has also updated the website with many helpful resources to employees and employers. These available resources include:

  • Guidance for employers on how to comply with the PFML law
  • A calculator to estimate the required contributions an employer will need to send to the DFML on behalf of their employees
  • A new workplace poster that must be displayed in the workplace
  • A fact sheet including frequently asked questions
  • Instructions on how to create an employer account to review PFML applications
  • Instructions on how employees can apply for PFML, and
  • The portal to apply for PFML.

The PFML also provides a useful option for employers to require an employee to provide a fitness-for-duty certification from a health care provider before they return from medical leave. This certificate is similar to that under the federal FMLA but, if desired by the employer, can be further tailored to address the employee’s specific job functions. An employer can require that this certificate specifically certify that the employee can now perform the listed essential functions of their job, so long as a list of those functions is provided to the employee within ten days of the employer’s notice of the Department’s approval of the employee’s medical leave. If that list of job functions is timely provided to the employee, the employee will not be entitled to reinstatement, nor to an extension of benefits, after the leave period without supplying this certification to the employer. This new tool is outlined in Section 2.11 of the PFML law.

Employers can determine whether the above certification is something it wants to implement into their leave and benefits processes. It is important for employers to review and integrate these new materials into their handbooks and policies, and to make employees aware of the PFML by posting the new mandatory poster in the workplace. Employers should also create an account with the Department to review and manage PFML applications for their organization’s staff.

If you have any questions about the Massachusetts Paid Family and Medical Leave Law, feel free to contact Janet Barringer at [email protected] or Lori Eller at [email protected].

Massachusetts Superior Court Rules Non-Compete Agreement Fully Enforceable Despite Minor Change in Job Duties Between Signing and Enforcement of Agreement

Posted on: June 22nd, 2020

By: Janet Barringer and Zinnia Khan

The Massachusetts Superior Court’s recent decision in Now Business Intelligence, Inc. v. Sean Donahue, et al., held minor changes in an employee’s job duties will not create a “new employment contract” so as to invalidate or obviate the employee’s existing non-compete agreement with the employer. This decision reveals the best course of action for employers is to require employees to sign new non-competes in connection with substantial job changes. If there is any doubt or ambiguity as to whether a job change is “substantial” or “material,” we recommend consulting with counsel.

The decision in Now Business Intelligence, Inc. v. Sean Donahue, et al., centered on whether the employer, Now Business Intelligence, Inc. (“NBI”), may hold its former employee, Sean Donahue (“Donahue”), liable for breaching a non-compete agreement, thereby interfering with NBI’s business relations or whether the nature of Donahue’s job had transformed since he had first been hired and entered into the non-compete agreement so as to now invalidate the agreement under the “material change” doctrine. NBI maintained its former employee breached the non-compete agreement, thereby violating the Massachusetts Consumer Protection Law (Chapter 93A).

By way of background in a case from more than fifty years ago, F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968), Massachusetts law declares the “material change” doctrine may be invoked by a former employee to support that a restrictive covenant in an employment agreement, such as a non-compete clause, is no longer enforceable because substantial changes to the nature of the employee’s job have occurred since the time the employee entered into the employment agreement. 

In the recent NBI case, Donahue was a former Project Manager at NBI, a technology-based consulting company placing information technology specialists inside of client companies to assist with, manage or solve their technology issues. Immediately prior to his first day on the job at NBI, Donahue executed a non-compete and confidentiality agreement. During his first year at NBI, Donahue was assigned to assist NBI client Raytheon with its implementation of SharePoint, a proprietary Microsoft technology requiring specialized knowledge to implement and operate. 

In or about July 2016, approximately eleven months after he signed his non-compete agreement, Raytheon cut short Donahue’s assignment due to its decision to pause SharePoint implementation. At this stage of Donahue’s employment, Donahue and NBI’s respective accounts of his ensuing job duties began to differ. NBI maintained Donahue was experiencing a slow work period while his job title, key job duties and rate of pay did not change. In contrast, Donahue claimed his position with NBI changed entirely from a Project Manager to a Sales Representative and included new duties such as recruiting customers for NBI and attending sales meetings.  In or about August 2017, Donahue voluntarily left NBI to start his own consulting business.  When NBI discovered Donahue, after his departure from NBI, provided SharePoint services to NBI’s former clients, including Raytheon, NBI sued Donahue to enforce the non-compete agreement. As a defense to NBI’s claims, Donahue invoked the “material change” doctrine and claimed the changes to his job beginning in July 2016 were material thereby invalidating his non-compete agreement with NBI. 

The Superior Court agreed with NBI there were no material changes to Donahue’s job while at NBI which would invalidate his non-compete agreement. The Court noted after his Raytheon assignment concluded, Donahue’s job title at NBI did not change, he was not asked to sign a new non-compete agreement, he was nether promoted nor demoted, his rate of pay remained the same and SharePoint-related tasks remained a significant portion of his billable work. Additionally, the NBI court determined certain changes to Donahue’s regular job duties, such as the need for occasional client pitches, were not a basis for finding the non-compete enforceable under Bartlett Tree. Further, NBI emphasized changes to an employee’s job must be material for the “material change” doctrine to apply, and cited Bartlett Tree as an example. In Bartlett Tree, the employee’s job changed significantly over an eighteen year period, including a promotion, different employment titles, different job duties, changes in remuneration and changes in sales area. These changes, taken together, showed a clear new employment contract and that the original employment contract was “abandoned and rescinded by mutual consent.”

The NBI v. Donahue decision is helpful for employers because it reaffirms only “material” job changes invalidate an existing employment agreement. Even so, employers must remain aware of the “material change” doctrine and the potential it holds for invalidating employment agreements. As a practical matter, it can be burdensome to require employees to enter into a new non-compete each time his or her position changes. Yet, if employees do not sign new agreements following a change in job duties or circumstances that is later deemed to be “material,” then a pre-existing non-compete may be deemed unenforceable.  

The best course of action for employers is to require key employees to sign new non-competes in connection with substantial job changes. If there is any doubt or ambiguity as to whether a job change is “substantial” or “material,” we recommend consulting with counsel.

If you have questions or would like more information, please contact Janet Barringer at [email protected] or Zinnia Khan [email protected].

Proposed Revisions to Massachusetts’ Paid Family and Medical Leave Regulations

Posted on: June 1st, 2020

By: Janet Barringer and Zinnia Khan

The Massachusetts Department of Family and Medical Leave (“DFML”) recently issued to the public proposed revisions for Massachusetts’ paid family and medical leave program.  In its release, DFML issued a markup of proposed revisions to the regulations governing the program.  While the proposed revisions are not yet enacted, reviewing the proposed changes is helpful for employers and employees to see where the paid benefit is likely headed.  The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m.  Prior to this hearing, interested parties are invited to submit comments directly to DFML.  The link to submit comments directly to DFML is here.

The Paid Family and Medical Leave Law (“PFML”) allows covered individuals to use paid leave for several reasons including (i) bonding with a child after birth or adoption,(ii)  relating to necessities for a family member’s active duty or call to duty in the Armed forces, (iii) caring for a family member who is a covered service member or (iv) caring for the individual’s own health condition.  Beginning on July 1, 2021, eligible individuals will also be able to use paid leave to care for a family member’s serious health condition.  Employers in Massachusetts are presently subject to a payroll tax as a means to fund the PFML, though benefits are not expected to become available until January 1, 2021.

The DFML’s proposed regulations are subject to further change pursuant to the required public hearings and comment period.  Still, due to the impending impact on employers and employees when enacted, examining some of the significant proposed revisions is worthwhile:

  • Definitions: the DFML has included new definitions for several key terms and updated the definitions of terms already defined in the prior regulations such as what constitutes accrued leave, when an application for benefits can be considered to be complete and the duration of an employee’s leave which is protected under the PFML. 
  • Optional Coverage for Otherwise Ineligible Employers: the proposed changes provide an avenue for employers who would otherwise not be covered by the law (such as municipalities, political subdivisions, housing authorities, or charter schools) to become a covered employer for a minimum term of one year.
  • Private Plan Exemptions: the marked-up regulations go into greater detail on how covered employers may request an exemption because they offer paid family and/or medical leave to employees through a private plan.
  • Application for Benefits: the DFML proposes new notice requirements for employees applying for benefits under the PFML, including new notice requirements stating employees must give at least 30 days’ notice to their employer of the anticipated start date of the paid leave and notice must be given prior to an application to the DFML.
  • Applying for Benefits Verification: the proposed changes include a new requirement that employees using paid leave on an intermittent basis must verify the hours of leave taken with the DFML in order to continue receiving benefits.
  • Weekly Benefit Amount: the proposed changes state the weekly benefit amount will be calculated based on an employee’s average weekly wage at the time the employee files a request for paid leave.  The weekly benefit amount will not change during the term of the approved leave period.
  • Substitution of Employer-provided Paid Leave: the DFML proposes to change the regulations to provide that employees choosing to use accrued paid leave provided by their employers rather than benefits under the PFML will have their accrued paid leave run concurrently with PFML leave.
  • Employer Reimbursement: the proposed revisions state if employers make payments to a covered employee during a period of PFML equal to or greater than the weekly benefit amount, the employer shall be reimbursed out of any benefits due to the covered individual or to become due from the Trust Fund by the DFML.
  • Intermittent and Reduced Schedule Leave: DFML proposes additional guidance for keeping track of intermittent leave.  Employers must provide the DFML with wages or qualified earnings paid to employees approved for intermittent leave individual on a monthly basis, or at another interval approved by the DFML.
  • Retaliation: the proposed revisions update the rebuttable presumption of retaliation to state a negative change shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work.  In addition, an employer who notifies the DFML based on a bona fide belief the employee has committed fraud in connection with the employee’s application for benefits shall not give rise to an action of retaliation or presumption.

The above changes are subject to further change and revision.   This blog is an overview of the major proposed changes to date of the current regulations.  We advise employers to read through the markup submitted by the DFML for information on all proposed changes and updates.  The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m.  Prior to this hearing, DFML invites interested parties to submit comments on the proposed revisions directly to DFML.  The link to submit comments directly to DFML is here

If you have questions or would like more information, please contact Janet Barringer at [email protected] or Zinnia Khan [email protected].