Tag Archives: Massachusetts

“Culture of Profanity” or a Hostile Work Environment? Massachusetts Court Issues Ruling on Permissible Use of Expletives in the Workplace

By on August 22, 2016

Hostile work environments exist when an employer’s statements, actions, and behavior make it impossible for an employee to perform their job. Massachusetts law protects employees against discrimination and hostile work environments by prohibiting an employer, or its agents, from refusing to hire an individual, discharging an employee, or discriminating on the basis of a protected class status.  Protected class status exists based on an individual’s “race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, or ancestry.” 

Recently, in Griffin v. Adams & Assoc. of Nevada, et al., the United States District Court for the District of Massachusetts determined that a former employee sufficiently presented evidence to bring a hostile work environment claim based on sexually derogative terms directed at him by his former supervisor and others.

In Griffin, a former employee filed suit for discrimination based on his sexual orientation, harassment, and retaliation against his former employer and his former supervisor.  In defense, the employer argued that the employee failed to establish a hostile work environment claim because the conduct directed at him was not “of a sexual nature” and was not a comment on the employee’s gender or sexual orientation.  In making this argument, the employer relied on a prior Massachusetts Appeals Court case, Prader v. Leading Edge Products, Inc., which held that use of “crass garden-variety expletives” in a workplace, which are not sexual commands or lurid innuendos, may only evidence a “culture of profanity” in the workplace and would be insufficient to establish a sexually hostile work environment.

The District Court’s summary judgment decision in Griffin, dismissed the employer’s Prader argument.  The Court determined that the comments directed at Mr. Griffin went beyond “garden-variety expletives” (such as those commonly used with or without meaning or reference to a sexual connotation), making it reasonably possible to construe the statements as sexual innuendo that “could suggest discriminatory animus.”  The District Court held that the specific nature of the statements, when viewed with consideration to previous statements (derogatory comments about the former employee’s attire and mannerisms being “feminine,” describing his office décor as “flamboyant,” and using derogatory terms based on his sexual orientation), went beyond statements “tinged with offensive sexual connotations” and could be reasonably viewed as discrimination based on sexual orientation and gender stereotypes.

The Griffin decision allowed the employee’s hostile work environment and retaliation claims to survive summary judgment, permitting the employee to proceed with those claims against the defendants toward trial.  While the Griffin decision did not determine whether the employer’s actions actually violated Chapter 151B, it should serve as a stern reminder to employers that protected-class discrimination and hostile work environments are not tolerated under Massachusetts law.  While the use of common profanity may be a recognized element of a work environment, that may not excuse the employer from liability where profanity with offensive connotations is targeted toward particular employees.  Employers must work with their human resources staff and employment counsel to create and maintain policies that promote healthy work environments and prohibit discriminatory conduct.  Should you have questions or concerns regarding Massachusetts’ anti-discrimination laws, hostile work environments, or your company’s practices, consult a Massachusetts employment attorney.

Federal Judge Allows Tort Claims Over Rescinded Job Offer to Proceed

By on August 10, 2016

A federal court judge has allowed a plaintiff to proceed with claims against a Massachusetts company that rescinded a job offer shortly after the plaintiff left his prior job. The defendant, Loomis, Sayles & Co., is an international investment firm that had intended to launch a new hedge fund. Over a course of six months, the defendant recruited plaintiff Vishal Bhammer, then employed by a different financial services firm in Hong Kong, to join the new fund.

During the recruitment process, the defendant allegedly informed Mr. Bhammer that the new fund was an opportunity that warranted leaving his current job and relocating his family to Singapore. The defendant allegedly emphasized that the fund had an “appropriate and well-defined investment process, strategy, and philosophy.” Several of the defendant’s employees allegedly made similar statements to Mr. Bhammer via Skype video calls, conference calls and in-person meetings. In early June, 2015, the defendant allegedly told Mr. Bhammer that he should not delay in giving notice of his resignation to his current employer. Mr. Bhammer’s resignation became effective on July 5, 2015. On July 16, 2015, the defendant informed Mr. Bhammer that it had decided to abandon the new hedge fund, and thus Mr. Bhammer’s job no longer existed. The defendant allegedly told Mr. Bhammer that the fund was abandoned in part because the defendant did not approve of the Fund’s strategy and its odds of success were too low.

Mr. Bhammer filed suit on December 23, 2015, alleging three claims: misrepresentation (intentional and negligent), tortious nondisclosure, and tortious interference. Shortly thereafter, the defendant moved to dismiss all counts, and the Court denied the motion. The defendant moved to dismiss the misrepresentation claim on several grounds, including that the complaint did not meet the strict specificity requirements of the Federal Rules of Civil Procedure.  The Court disagreed, finding that the complaint contains several allegations that the defendant intended to move forward with the new fund, was committed to the fund, and that there was no reason Mr. Bhammer should delay in moving his family to Singapore. The defendant also argued that such statements are not actionable fact statements, but instead merely opinions. The Court acknowledged that the distinction between opinion and fact is “often blurry,” and that the overall circumstances must be evaluated to determine the true meaning of the language used. While the defendant’s representation of the fund’s investment strategy was “appropriate and well-defined” could be considered an opinion, those words imply that the defendant believed the strategy was appropriate and well-defined, implying that it was an opinion grounded in fact. The Court found that the facts alleged covered both intentional misrepresentation and negligent misrepresentation (the claims are similar but negligent misrepresentation requires a less demanding standard).

“Tortious nondisclosure,” perhaps the most interesting claim due to its rare appearance, is a tort arising out of a duty to disclose. It is distinct from misrepresentation in that it covers what a party does not say. The Court found that the facts alleged in the complaint represented, at a minimum, circumstances in which the defendant had a duty to disclosure matters necessary to prevent its partial statement of fact from being misleading. In other words, if Mr. Bhammer’s allegations are true, then the defendant had an obligation to disclose its true belief regarding the hedge fund.

The third claim, “tortious interference,” requires a plaintiff to prove that it had an advantageous relationship with a third party (including an employment relationship), the defendant knowingly induced a breaking of the relationship, the interference was improper in motive or means, and the plaintiff suffered harm. The parties here dispute whether the defendant’s conduct was must be directed at a third party, or whether conduct directed at the plaintiff is sufficient. All of the defendant’s conduct was directed at Mr. Bhammer, not at his then-current employer. The Court stated that recent Massachusetts cases do not require the defendant to have induced the employer to break the relationship. Put differently, preventing the plaintiff from performing its own end of the contract is apparently sufficient under Massachusetts law, and this claim was also allowed to proceed to the next stage of litigation.

One lesson from this case is that employers should recruit new employees with care, particularly when such employees are leaving current jobs for a new opportunity. As the Court noted, the distinction between fact and opinion is often blurrier than one might think, and thus employers must ensure that their recruiters and senior staff avoid over-promising. Concerned parties should contact a Massachusetts employment attorney to review the recruitment process.

Strang Scott is Hiring — Office Manager

By on August 8, 2016

Strang, Scott, Giroux & Young, LLP, is seeking an experienced full-time office manager.  We are an up and coming business law and litigation firm with offices located Boston’s Kenmore Square and New London, New Hampshire.  The candidate should be detail oriented and able to balance multiple assignments.  Strong communication, administrative, organizational and computer skills are required.

Responsibilities include:

  • Managing attorneys’ schedules
  • Organizing and tracking client files
  • Communicating with clients, opposing counsel and court personnel
  • Drafting, formatting, and editing legal documents including correspondence, subpoenas, pleadings and financial statements
  • Office management
  • Managing client billing and payments
  • Managing office supplies
  • Vendor purchases and payments
  • Mail distribution
  • Answering phones
  • Managing client database

 

Qualifications/Experience:

  • Ability to work independently and as part of a team
  • Proficiency with Microsoft Office
  • Experience with QuickBooks or willingness to learn
  • Self starting

 

Must have prior experience working in a law office.  This position is located in the Firm’s Boston, Massachusetts office.  For further information regarding the Firm, please visit www.strangscott.com and please direct inquiries and correspondence to esantos@www.strangscott.com 

Massachusetts Enacts Equal Pay Law

By on August 3, 2016

On August 1, 2016, Massachusetts governor Charlie Baker signed the equal pay law, a law that has been working through the legislature since 1998. The law takes effect on July 1, 2018.  The law bars discrimination on the basis of gender in the payment of wages, including benefits and other compensation, for “comparable work.”  The statute defines comparable work to mean work that requires substantially similar “skill, effort and responsibility” and is performed under similar working conditions. The law allows variation in wages based on:

  • seniority;
  • merit;
  • productivity as measured by quantity or quality of sales or production;
  • geographic location;
  • education, training, or experience reasonably related to the job; or
  • regular travel.

The law provides several direct remedies for violations with a three-year statute of limitations.  Aggrieved employees can bring a lawsuit on behalf of themselves and similar situated employees, and recover the amount of wages underpaid, as well as an additional amount of wages underpaid as liquidated damages (amounting to double damages), plus reasonable attorney’s fees.  Employers also face liability for retaliation under the law.

An employee’s previous wage or salary history may not be used as a defense, but the law does provide employers with one affirmative defense:  if, within the prior three years and before a lawsuit is brought, employers complete a good faith self-evaluation of its pay practices and demonstrate that reasonable progress has been made towards eliminating pay differentials based on gender, liability under this law can be avoided. Employers may design their own self-evaluations, if they are reasonable in detail and scope in light of the employer’s size.

Finally, this law makes illegal some common practices.  Employers may not bar employees from discussing their own wages or the wages of fellow employees.  Further, employers may not screen job applicants based on salary history or even ask about prior wages or salary history.  However, prospective employees may provide written authorization for a prospective employer to confirm prior wages, but only after the prospective employer makes an employment offer.

The attorney general is empowered to bring its own lawsuit based on equal pay violations and may issue regulations interpreting this law, which can include templates for employer self-evaluations.  Although gender discrimination has long been illegal in Massachusetts, this law provides employees with new avenues for relief and places additional restrictions on employers. Employers should consult with Massachusetts employment attorneys to confirm that hiring practices will comply with the law and to ensure that potential liability is limited through self-evaluations.

Contractors Beware:  OSHA Penalties Set to Increase on August 1, 2016

By on July 27, 2016

On August 1, 2016, the Occupational Health and Safety Administration (“OSHA”), will raise the limits of its maximum penalties for the first time in nearly twenty-six years.

Current maximum penalties for “serious,” “other than serious” and “posting requirement” penalties will increase from $7,000.00 per violation to $12,471.00 per violation.  Penalties for failure to abate hazards or violations will increase from $7,000.00 to $12,471.00 per day for each failure to abate the condition subsequent to the abatement date.  Finally, the maximum penalties for “willful” or “repeat” violations will increase from $70,000.00 to $124,709.00 per violation. 

All contractors, and especially those with a history of violations or alleged violations with OSHA, would be wise to insure that all personal protective equipment, tools and equipment are OSHA compliant in advance of the changes in maximum penalties.  If your firm hasn’t recently revisited its safety procedures, practices and documentation, now is the time to review your firm’s safety program in order to avoid exposure to increased maximum penalties for OSHA violations set to take effect. 

For contractors in states that operate their own, state run, “mini-OSHAs,” OSHA has required that those agencies adopt maximum penalties that meet or exceed those imposed by OSHA.  Accordingly, contractors operating in states with “mini-OSHA” agencies should be mindful to consider whether they’re subject to penalties for any violation that may exceed the penalty that OSHA might impose for any similar violation.  

Of course, the best way to avoid an increased OSHA penalty for a violation is to refrain from committing any violation.  As a practical matter, violations frequently occur despite your firm’s best efforts and dedication to providing a safe and compliant work environment.  If OSHA requests to inspect your work site or office, you’d be well-advised to immediately contact an attorney experienced in OSHA practice to help guide your firm through the process and to achieve best results.

Massachusetts House of Representatives Passes Non-Compete Reform

By on June 30, 2016

     On June 29, 2016, the Massachusetts House of Representatives passed House bill 4434, An Act Relative to the Enforcement of Noncompetition Agreements. Non-compete reform has been brewing in the Massachusetts legislature for several years, but the reform sought by many may finally be here, if the bill is enacted.  This bill contains two key provisions: an adoption of a version of the Uniform Trade Secrets Act, and substantial reform of Massachusetts non-competition law, which thus far has been only addressed by the courts.  The Uniform Trade Secrets Act section provides for injunctive relief and reasonable attorney’s fees to protect trade secrets, and supersedes any conflicting laws providing for civil remedies for trade secret misappropriation.

     The non-compete reform represents significant changes to existing law. The bill provides that a non-compete agreement must comply with seven criteria to be valid and enforceable: (i) if entered into in connection with the commencement of employment, it must be in writing and signed by employer and employee, and state that employees have the right to consult with a lawyer; (ii) if entered into after commencement of employment, it must be supported by fair consideration independent from continued employment; (iii) it must be no broader than necessary to protect trade secrets, other confidential information, or the employer’s goodwill; (iv) it may not exceed a duration of 12 months unless the employee has misappropriated employee property, in which case it may be extended to 2 years; (v) it must be reasonable in geographic scope, defined as where the employee provided services or had a material presence; (vi) it must be reasonable in scope of proscribed activities in relation to the interests it protects; and (vii) it must be supported by a “garden leave clause” or something similar, defined as a payment from the employer to the employee during the restricted period.

     Finally, the bill provides that non-competition agreements shall not be enforceable against certain categories of employees, including those classified as nonexempt under the Fair Labor Standards Act, and those terminated without cause or laid off.

     While the Uniform Trade Secrets Act provision of the bill is unlikely to draw controversy, as it is generally consistent with current law in the Commonwealth, the House bill 4434 contains significant changes to non-competition law. Should this bill be enacted into law, employers will need to update their non-competition agreements to ensure enforceability. 

Massachusetts Attorney General Finds Minority-Owned Business Goals to be Statutorily Mandated

By on June 27, 2016

In a recent bid protest decision the Massachusetts Attorney General allowed a protest contesting a bidder’s right to submit Minority Business Enterprise (“MBE”) or Women’s Business Enterprise (“WBE”) qualifications after the bid opening. The opinion deemed MBE and WBE goals to be statutory and therefore not waivable by the awarding authority. The decision also found that allowing such post-bid submissions would violate the equal-footing principles upon which bidding laws rely.

The Fall River project required M/WBE compliance forms to be included with bids. The low bidder listed itself as an MBE in its bid. However, it soon learned that a change in the law made it no longer qualified to be a certified MBE. It then provided the city with the name of a qualifying subcontractor, albeit post bid opening. The city was willing to accept this post-bid supplement, however, another bidder filed a protest.

Generally speaking, cities may use their discretion in waiving their own public bidding requirements in certain circumstances. However, they are not authorized to waive statutory requirements. M.G.L. c. 7C, § 6(a)(6), enacted in 2013, provides that “state assisted construction contracts shall include language… setting forth the participation goals of minority and women workers to be employed on each such contracts.” Given the mandate of the “shall” language, the AG hearing officer found the M/WBE participation requirements to be statutory and therefore the city could not waive them.

The decision went further in finding that accepting the supplement post-bid would violate equal footing principles. An entity that already has the low bid will tend to have more leverage in negotiating prices with subcontractors and suppliers than competitors had pre-bid. Such advantages are not allowed.

Bidders should use caution going forward in verifying the current status of the M/WBE components of their bids and including thoroughly completed participation compliance forms in bid submissions.

Defend Trade Secrets Act – Employment Implications

By on June 2, 2016

President Obama recently signed the Defend Trade Secrets Act (“DTSA”), which provides a federal private right of action for the misappropriation of trade secrets. Previously, trade secret claims were handled only at the state level. The DTSA does not preempt state law, but instead provides another avenue for recovery. Trade secret owners may pursue federal claims including property seizure (to prevent dissemination of trade secrets), injunctive relief, and damages for actual loss and unjust enrichment. Property seizure is not lightly granted, and the DTSA provides a detailed framework for when and how property may be seized. Further, if the trade secret is willfully and maliciously misappropriated, courts may award double damages and attorney’s fees.

In the employment context, employees are immune from liability under the DTSA (and arguably state laws as well given the DTSA’s specific wording) for disclosing trade secrets that are made in confidence to a government official or attorney for the purpose of reporting or investigating a violation of law. Employees are permitted to use trade secret information in a lawsuit alleging retaliation by an employer for reporting a trade secret violation, as long as any court document containing trade secrets is filed under seal.

Although the DTSA provides a powerful cause of action for employers, the DTSA also contains some employee protections. Employers must now provide notice to employees of the immunities contained in the DTSA in agreements with employees (such as nondisclosure agreements), which may be handled by including a cross-reference to a company policy containing notice of the immunity. Failure to provide such notice prevents employers from receiving multiple damages or attorney’s fees under the DTSA. While injunctions are available under the DTSA, any injunction may prevent actual or threatened misappropriation but must not prevent the employee from entering into an employment relationship or conflict with state laws concerning the restraint of trade.

In sum, employers may now bring a civil action against employees who misappropriate trade secrets that can lead to damages and injunctive relief including seizure. However, to receive the full benefits of the DTSA, employers must update their nondisclosure and similar agreements to inform employees of the immunities available under the DTSA.  The DTSA’s effect on the technology, biotechnology and pharmaceutical industries almost certainly will be far-reaching.  As a result, the DTSA is of particular importance to businesses in greater Boston, Cambridge and other emerging technical hubs in Masshachusetts and throughout New England.  Both employers and employees should contact a Massachusetts employment attorney to update their agreements and confirm their duties.

An Overview of Massachusetts Non-Solicitation Agreements

By on May 18, 2016

Non-competition agreements (“non-competes”) often contain clauses referred to as “non-solicitations.” These provisions are sometimes viewed as synonymous to a non-competition clause but there are important distinctions between the two. Massachusetts courts use a similar analysis on the two types of provisions, non-solicitation provisions serve a different function. The usual purpose of a non-solicitation is to prevent a former employee from stealing clients, prospective clients or other employees from their former employer.  As such a non-solicitation contrasts with a non-compete which ordinarily intends to bar a former employee from directly competing with the former employer in subsequent employment.

The basic non-solicitation clause is simple, usually stating that the employee agrees not to solicit certain categories of individuals for some period of time.  As with non-competes, non-solicitations will be enforced when they are supported by valid consideration and are generally reasonable to protect a legitimate business interest.  Protecting employer good will towards employees and/or customers qualifies as a legitimate business interest. Businesses have an interest in protecting the customer relationships developed by employees during employment, which also relates to an employer’s legitimate interest in protecting customer good will.  While non-competes require a narrowly tailored provision to be enforceable, Massachusetts courts will often enforce non-solicitations for longer periods than non-competes, as a non-solicitation is less of a burden on an employee who is still otherwise able to work. 

Standard non-solicitation language is relatively straightforward.  It can be surprisingly difficult, however, to determine when a solicitation has occurred, and Massachusetts courts have not yet worked out all of the details.   For instance, if a former employee subject to a non-solicitation is directly contacted by a client of the former employer, has the employee breached the non-solicitation merely by receiving the business? As with many legal questions, the short answer is that it depends.

Massachusetts courts have observed that the line between solicitation and acceptance of business is a hazy one. Thus far, the courts have not drawn a bright line legal distinction between circumstances when the client makes first contact with the former employee, and when the employee makes first contact with the client. Instead, courts look to the facts of the case to determine whether the former employee made an improper solicitation. Further complicating the analysis, while a former employee may be barred from soliciting, the employee’s new employer is under no such restriction and neither are the customers in question because those parties are not subject to the non-solicitation agreement entered into by the employee and former employer.  Nevertheless, the employee and new employer should tread carefully to ensure that the employee and new employer’s actions do not yield other causes of action for the aggrieved former employer, such as an unfair business practice claim for behavior that may not strictly run afoul of the non-solicitation provision.

Judicial analysis of non-solicitations recognizes that the context of the particular industry is important. When the individual subject to a non-solicitation is selling fungible, off-the-shelf goods, initial contact with prohibited parties is likely quite important, as there is probably little to differentiate the sellers.  Where a complex transaction is involved and products are highly customized, prohibited contact may be less important to securing a sale. Further distinction can be drawn between an overt direct solicitation, and a more subtle indirect solicitation. Directly inviting an employee or customer to engage with a new company would clearly breach a non-solicitation, but more subtle “nudge-nudge wink-wink” approaches can be equally damaging.   The courts will look at the overall context of the business relationship and the agreement at issue to resolve whether particular conduct breaches the non-solicitation agreement.  Given the fact specific nature of the inquiry, it can be a difficult question to determine in any particular instance whether contact with a client is prohibited by the non-solicitation.  

Non-solicitation agreements are another powerful tool for employers to protect legitimate business interests.  Like non-competes, non-solicitations must be drafted and implemented carefully to be enforceable and useful. Massachusetts courts will engage in a fact-intensive analysis to determine whether a non-solicitation is valid and under what circumstances the provision has been breached. Both employers and employees should consult with an experienced Massachusetts employment attorney to determine their rights and obligations with respect to any particular non-solicitation provision.

Sub-Subcontractor’s Ambiguous E-mail Insufficient to Satisfy Statutory Notice Requirements for Claim on General Contractor’s Payment Bond

By on March 14, 2016

In an opinion issued this week in N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company, the Massachusetts Appeals Court ruled that a sub-subcontractor’s e-mail to a general contractor on a public construction project failed to clearly present a claim that would satisfy the notice requirements of M.G.L. c. 149, s. 29.

The unpaid sub-subcontractor on a public bridge painting project sent an e-mail to the general contractor that stated the following. “Enclosed is the January 15, 2010 Statement to [subcontractor] for services through that date by [sub-subcontractor] for the [project] that are still unpaid. Please give me a call at [telephone number] when you have a chance.” The attached Statement listed ten invoices. The general contractor’s project manager testified to having never heard of this sub-subcontractor prior to the e-mail, and did not understand the e-mail to be some form of claim.

M.G.L. c. 149, s. 29, requires parties that do not have a direct contractual relationship with the general contractor to provide written notice to that general contractor of any claims of non-payment within 65 days of last providing labor or material on the project. The statue merely requires that the notice state “with substantial accuracy the amount claimed, [and] the name of the party for whom such labor was performed.”

The Court’s opinion included a nuanced analysis of the purpose of this notice requirement. It held that the implied purpose is to give general contractors a clear, timely understanding that a claim is being directed against them. This is to allow an opportunity to attempt to resolve the claim prior to litigation and involvement of the payment bond surety.

In ruling against the sub-subcontractor, the Court looked at all of the circumstances surrounding the e-mail and deemed it inadequate, for failing to state “explicitly or implicitly” that the e-mail constituted a claim for an unpaid balance due on the project.

Sub-subcontractors and material suppliers on public construction projects in Massachusetts should consult with a construction attorney prior to sending 65-day notices to general contractors to insure the preservation of their payment bond rights.