Author Archives: Strang Scott

About Strang Scott

Strang Scott is a dynamic business and litigation firm, dedicated to serving the needs of businesses of all sizes.

Massachusetts Paid Family and Medical Leave Draft Regulations – How Employers Can Get Involved

By Strang Scott on January 22, 2019

Starting in 2021, Massachusetts employees will be entitled to paid family and medical leave under the Massachusetts Paid Family and Medical Leave Act. The leave will allow employees to (1) care for a family member with a serious health condition, or (2) care for the employee’s own health condition. The leave period ranges from 12 to 26 weeks, depending upon the reason for the leave. The law also protects employees from retaliation after taking such leave.

Beginning in July of 2019, employers will be required to make contributions to the state fund that will be used to pay for these leaves and to provide certain notices to employees regarding the new law. The newly-created Massachusetts Department of Family and Medical Leave plans to publish draft regulations for the Massachusetts Paid Family and Medical Leave Law no later than January 23, 2019; these draft regulations are expected to provide more information on the law, as well as employers’ obligations under the law to make fund contributions.

The Department has scheduled a number of public listening sessions on the draft regulations throughout the Commonwealth, beginning with a session in Boston on January 30, 2019. A complete list of these public listening sessions can be found here. Any member of the public, including representatives from employers around the Commonwealth, may attend and present testimony related to the proposed draft regulations. In addition, written presentations may be sent to MassPFML@Mass.gov.

Non-Compete Reform Comes to Massachusetts

By Strang Scott on August 30, 2018

After years of trying to find common ground on non-compete reform, the Massachusetts legislature passed a bill – which Governor Charlie Baker signed into law on August 10, 2018 – that promises to significantly change the employment landscape in the Commonwealth. The new law will take effect on October 1, 2018.

The following is a brief, non-exhaustive overview of some of the law’s most notable features:

The law defines a non-competition agreement as an “agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended,” but excludes certain agreements from its purview, including: (1) non-compete agreements made in connection with the sale of a business; (2) non-compete agreements made in connection with the cessation or separation of employment (provided the employee is given seven business days to rescind acceptance); (3) employee non-solicitation covenants; (4) customer/client/vendor non-solicitation covenants; and (5) non-disclosure of confidential information agreements.

Both traditional employees and independent contractors are covered under the law.

All agreements must be in writing and signed by both parties, and must expressly affirm an employee’s right to consult with counsel before signing.

If a non-compete agreement is signed at the beginning of an employment relationship, it must be given to the employee when the employment offer is made or 10 days before the commencement of employment, whichever is earlier. Agreements signed after the commencement of employment must be “supported by fair and reasonable consideration independent from the continuation of employment.”

The law requires so-called “garden leave pay” or some “other mutually agreed-upon consideration.” Garden leave pay refers to an agreement in which the employer, during the course of the restricted period, continues to pay the former employee at least 50 percent of the “highest annualized base salary” that employee received within the two years preceding his or her termination. The law does not further define or elaborate upon what “other consideration” might be acceptable in lieu of garden leave pay, however. In addition, it remains to be seen whether garden leave pay constitutes sufficient consideration for those non-competes executed after the commencement of an employment relationship, or whether some consideration above and beyond the garden leave pay is required in those circumstances.

Agreements not to compete must be “reasonable.” They can be no broader than necessary to protect a legitimate business interest; they cannot exceed one year in duration; their geographic scope must be reasonable; and they must otherwise be reasonable “in the scope of proscribed activities in relation to the interests protected.”

Non-compete agreements may not be enforced against non-exempt employees; undergraduate or graduate students engaged in short-term employment; employees who have been terminated without cause or laid off; or employees who are 18 years old or younger.

These new requirements apply only to non-compete agreements entered into on or after October 1, 2018. Nevertheless, employers may wish to revise existing non-compete agreements for current employees in order to avoid disparities amongst employees, as well as potential future litigation.

BPDA appoints Christopher Strang to serve on Boston University Task Force

By Strang Scott on August 8, 2018

The Boston Planning & Development Agency recently appointed partner Chris Strang to serve as a Task Force member for Article 80 reviews regarding Boston University Charles River Campus development projects.

Article 80 consists of guidelines for the development review process for unique projects. The process includes, but is not limited to, review of a project’s impact on transportation, public realm, the environment, and historic resources. Mr. Strang will serve with select other members of the community to work with BPDA managers and the BU development professionals on various projects in the coming years.

UPDATE: Forfeiture Rule in Construction Disputes – Complete and Strict Performance Required for Design and Construction Claim, Otherwise Look to the Materiality Rule

By Strang Scott on June 29, 2018

Recently, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision in G4S Technology LLC v. Mass. Tech. Park Corp., SJC-12397, regarding the forfeiture rule for construction project contractor disputes.

Previously, the trial court in G4S entered summary judgment in favor of the defendant, dismissing G4S’s breach of contract claim based on G4S’s intentional breaches of contract and its failure to strictly and completely perform all of the contracts terms. The trial court similarly dismissed G4S’s claim for damages under the theory of quantum meruit (which is an equity theory demanding the fair value of services performed or work completed), holding that an intentional violation of a contract was inconsistent with the good faith requirements of such theory. On direct appeal, the SJC considered whether Massachusetts should adopt an alternative standard to the forfeiture rule.

The SJC’s decision declines to extend the alternative standard, known as the “materiality rule,” argued by G4S in place of the Massachusetts forfeiture rule. The SJC reaffirms that complete and strict performance of the contract terms is required to recover on the contract itself. However, it further clarifies that the “complete and strict performance requirements” relate “only to the design and construction work itself” and “ordinary principles, including the traditional Massachusetts materiality rule, apply for breaches of other provisions.” The construction contract between G4S and Mass. Tech. Park was for the design and construction of a fiber networking system, meaning the contractual violations committed by G4S (submission of false certifications and withholding payment to subcontractors) do not concern that actual design or construction of the project and must be analyzed under the materiality standard, not complete and strict performance. Under this standard, the SJC still held G4S’s actions to be a material breach of the contract, stating that “paying subcontractors on time was an essential and inducing feature” between Mass. Tech. Park and G4S and “intentional misrepresentations to the government for financial gain are significant breaches of contact in and of themselves.”

With regard to quantum meruit claims, the SJC’s decision in G4S affirms that proof of substantial performance and good faith by the party seeking recovery is still necessary but overrules an older line of cases and holds “good faith now applies to the contract as a whole,” and “the intentional commission of breaches of individual contract provisions must be considered in the over-all context.” A simple standard cannot be applied to determine a ruling in equity; numerous factors must be analyzed to “balance the equities and produce a just result.” Such factors include the value of the uncompensated work, the damage caused by the breach, the total performance of both parties, and the balancing of equities to accomplish a just result. The SJC remanded G4S to the trial court for a determination of disputed facts and application of the clarified standard for quantum meruit recovery in construction disputes.

If you have questions concerning your rights in connection with a construction dispute, consult an experienced Massachusetts construction attorney.

Show Me the (Same Amount of) Money!

By Strang Scott on June 21, 2018

The state’s new pay equity law, which amends the Massachusetts Equal Pay Act (“MEPA”), will take effect on July 1, 2018. It is one of the strongest pay equity laws in the country, and subjects employers to double damages and attorneys’ fees in the event of a violation. Moreover, it is a “strict liability” statute. Thus, whether or not an employer intends to discriminate against employees of one gender is “irrelevant” to the analysis.

The amendments prohibit employers from, among other things:

• Paying different wages to people of different genders who perform “comparable work,” unless the difference in salary is attributable to one (or more) of six enumerated statutory factors;

• Asking job applicants about their wage or salary history;

• Decreasing the wages of an employee solely to close the wage gap;

• Retaliating against employees for exercising their rights under MEPA.

The revisions also establish a safe harbor provision for employers who perform self-evaluations of their pay practices.

What Does “Comparable Work” Mean?

MEPA defines “comparable work” as work that “requires substantially similar skill, effort, and responsibility” that is performed under similar working conditions. Employers should not assume that a job title, or even a job description, necessarily determines comparability. In fact, employees need not even be in the same business unit or department in order have “comparable” jobs. Notably, this is a broader definition than the “equal work” standard under federal law.

Even if employees are in comparable roles, however, employers are permitted to pay them different salaries if the difference is based on of one (or more) of the following factors:

• A seniority system (as long as seniority is not affected by pregnancy, parental or family leave);
• A merit system;
• A system that measures earnings by quantity or quality of production, sales, or revenue;
• The geographic location in which a job is performed;
• Education, training, or experience, as long as these factors are reasonably related to the job in question; and
• Travel that is a regular and necessary part of the job.

What Employers Should Know About the Safe Harbor Provision

In order to trigger the safe harbor provision, which establishes an affirmative defense against liability for claims of pay discrimination, an employer must have conducted a “reasonable and good faith” pay audit within the previous three years (and before an employee files an action), and must demonstrate that it is making “reasonable progress” towards eliminating wage differentials across genders.

Self-evaluations not only help employers identify and rectify wage gaps, they guard against liquidated damages in the event of a judgment against the employer, even if the evaluation was not “reasonable” in detail and scope.

Guidance for Employers

The Massachusetts Attorney General’s Office has issued a Guidance that addresses the amendments. While the Guidance does not have legal force, it is a useful compliance tool and a good place to start if you have basic questions about how to ensure you are compensating your employees equally across genders for “comparable work.” However, employers should bear in mind that “the complexity of the analysis required will vary significantly depending on the size, make-up, and resources of each employer”; the Guidance does not, and cannot, address the many fact-specific situations that may arise at any given place of employment.

In addition to the Guidance, the AG’s Office has generated a “Pay Calculation Tool” to help employers identify and evaluate gender-based pay gaps. Smaller employers with clearly defined groupings of comparable jobs and relatively simply pay structures may benefit from using the tool, at least as a first step; it is not appropriate for large pay groups or complicated pay structures. Furthermore, the data the tool generates may be discoverable in litigation or government investigations, so employers should consult with counsel before conducting any self-evaluation.

Chris Strang Selected Super Lawyer for 2018

By Strang Scott on June 1, 2018

Strang, Scott, Giroux & Young, LLP, is honored to announce the selection of Christopher Strang as a 2018 Super Lawyer by the Massachusetts edition of Super Lawyers. Mr. Strang has been recognized for his outstanding work in construction litigation for the tenth consecutive year, first as a Rising Star and then as a Super Lawyer. The Super Lawyers selection team chooses only 5% of eligible attorneys as Super Lawyers, and only 2.5% of eligible attorneys as Rising Stars. Both lists are the result of a process that includes a statewide lawyer survey, independent research, and peer reviews.

“Ban-the-Box” Update for Employers

By Strang Scott on May 21, 2018

Since 2010, employers in Massachusetts have been prohibited, under the Criminal Offender Record Information (“CORI”) Reform Act, from requiring a job applicant to check a box indicating that he or she has a criminal history (the “ban-the-box” law). Employers are also prohibited from requiring applicants and employees to disclose certain criminal information, including arrests and criminal cases that did not result in a conviction; first convictions for various misdemeanor offenses; misdemeanor convictions where the date of conviction or release from incarceration occurred five or more years prior to the date of the employment application (in the absence of an intervening conviction); juvenile records; and sealed criminal records.

Under new amendments to the CORI Reform Act signed by Governor Baker on April 13, 2018, and slated to take effect on October 13, 2018, employers may not inquire into misdemeanor convictions where the date of the conviction occurred three or more years from the date of the application (unless there was an intervening conviction). In addition, employers may not ask applicants about “a criminal record, or anything related to a criminal record, that has been sealed or expunged . . . .” Finally, employers must include the following statement on any application “which seeks information concerning prior arrests or conviction of the applicant”: “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

Employers are advised to take note of these important changes and revise their applications, and application processes, accordingly.

Strang Scott Welcomes Alexandra Deal to the Firm

By Strang Scott on May 1, 2018

Strang, Scott, Giroux & Young, LLP, with offices in Massachusetts and New Hampshire, welcomes Alexandra H. Deal as Of Counsel to the Firm.

Ms. Deal is a seasoned litigator with more than a decade of experience representing clients in state and federal court, along with various administrative agencies. She advises clients in employment-related matters and litigates employment-related disputes, including cases involving alleged discrimination, wage and hour violations, restrictive covenants, harassment and other employment matters. She is a trained workplace investigator, and has conducted numerous internal investigations involving allegations of discrimination and other unlawful conduct.

Ms. Deal is an accomplished appellate attorney, having briefed, argued, and won cases at the Massachusetts Appeals Court, the Supreme Judicial Court, and the Court of Appeals for the First Circuit.

Prior to joining Strang, Scott, Giroux & Young, LLP, Ms. Deal maintained a successful solo practice for a number of years. She graduated cum laude from Boston College Law School and clerked for a judge at the District of Columbia Court of Appeals before entering private practice.

The Firm looks forward to utilizing Ms. Deal’s knowledge and experience in employment matters to the benefit of its clients. You can contact Ms. Deal directly at adeal@www.strangscott.com or by telephone at (857) 233-5534.

Massachusetts Pregnant Workers Fairness Act Takes Effect

By Strang Scott on April 25, 2018

As of April 1, 2018, all Massachusetts employers with six (6) or more employees are subject to the state’s new Pregnant Workers Fairness Act (the “Act”).

In light of the pre-existing federal law in this area, what is most notable about the Act is that it requires covered employers to provide:

• non-exempt and exempt employees with reasonable breaks and an appropriately private place to express breast milk;
• written notice to their employees regarding the rights provided under the Act; and
• reasonable accommodation(s) to employees on the basis of pregnancy and pregnancy-related conditions.

Reasonable accommodations may include thing like frequent or longer breaks, light duty, or a modified work schedule.

It is unlawful to retaliate against employees for requesting such an accommodation. Likewise, employers cannot deny an employment opportunity to an employee if the denial is based on the employer’s knowledge that it would have to provide the employee a reasonable accommodation, nor can an employer refuse to hire someone on the basis of pregnancy or a pregnancy-related condition, provided that person can perform the job (with a reasonable accommodation, if necessary).

Employers must provide the required written notice in a handbook, pamphlet, or other appropriate form to:

• current employees on or before the effective date of the Act;
• a newly-hired employee at the time of his or her hire; and
• any employee who notifies the employer of a pregnancy or a pregnancy-related condition, within 10 days of such notice.

Employers may satisfy the written notice requirement using the two-page Pregnant Workers Fairness Act Guidance published in part for this purpose by the Massachusetts Commission Against Discrimination (MCAD). The MCAD has also published a helpful Q&A regarding the Act. Should you have questions concerning compliance with the Act or other matters, speak with an experienced employment attorney.

We’ve Moved: Strang Scott’s Boston Office Relocates to 6 Beacon Street

As of March 30, 2018, the Boston office of Strang, Scott, Giroux & Young, LLP has moved to 6 Beacon Street. The firm’s relocation will provide ready access to Suffolk County Superior Court, the Federal Court, the Massachusetts State House and the Boston Bar Association. We look forward to introducing our clients and friends to the new space. Please be in touch regarding directions and parking options.

For the firm’s mailing addresses, please see the firm’s Contact page.