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The In-House Advisor

Published by Shepard Davidson & Renee Inomata

Liquidated Damages Can Create a Cap on What You Can Recover

Posted in Liquidated Damages

When thinking about liquidated damages, most people focus on the fact that a properly drafted liquidated damages provision will enable the non-breaching party to recover a set amount without ever having to prove how much, if any, actual damages were incurred. What people often forget to consider, however, is that a liquidated damages clause also sets a ceiling for damages.

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Rare Decision Finds Workers Were Properly Classified as Independent Contractors

Posted in Compliance, Policies & Notices, Worker Classifications

Convincing a court that a company has properly classified a worker as an independent contractor has become increasingly difficult in Massachusetts. So, the Massachusetts Supreme Judicial Court’s decision just last week that taxicab drivers are, in fact, properly classified as independent contractors was somewhat unexpected.

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Tips From The Inside: Stacey Constas, Senior Corporate Attorney, Standex International Corporation

Posted in Tips from the Inside

In this installment of The In-House Advisor, we interview Stacey Constas, Senior Corporate Attorney / Corporate Governance Officer at Standex International Corporation, a global manufacturer of industrial components and food service equipment, trading on the NYSE. In addition to serving as the Chief Governance Officer, Stacey manages all employment, product liability, litigation and environmental compliance for the corporation. She also is a corporate generalist, conducting acquisitions and divestitures, and assisting business divisions with a wide variety of commercial, contractual and legal issues.

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Employers Beware: New Standard Issued for Accommodating Pregnancy

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discrimination

Earlier this week, the U.S. Supreme Court declared that a new test applies for pregnancy discrimination. In Young v. UPS, the Supremes decided that in pregnancy discrimination actions under the federal Pregnancy Discrimination Act (“PDA”), the long-standing McDonnell-Douglas burden shifting test does not apply. Employers should ensure their policies, especially any light duty policies, comply with the Young decision.

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Specify When and Under What Circumstances Your Contract Will End

Posted in Contracts

It makes perfect sense that when entering into a new business relationship the parties (and their counsel) are keenly focused on getting things started. While there is nothing wrong with this, sometimes parties forget to memorialize, or even discuss, when, how and under what circumstances their contractual obligations will end. A recent case from the Massachusetts Appeals Court, Robert and Ardis James Foundation v. Meyers, reminds us that failing to spell out when a contract ends can result in seemingly unfair consequences.
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Track More Than Case Law When Drafting a Noncompete Covenant

Posted in Contracts, Noncompetition & Other Restrictive Covenants

No doubt, ensuring that any agreement is consistent with judicial precedent is critical if you want to enforce that agreement at some point in the future. Nevertheless, merely incorporating precedential concepts or language into an agreement may not be enough to get your client to where it wants to be, and may even result in your client being put in a more difficult position than if the precedent had been ignored. Nowhere is this more apparent than when a company seeks to draft and implement a standard and seemingly straightforward noncompete covenant.

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Hey Guys, You Get “Maternity” Leave, Too!

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discrimination, Employee Benefits

For years, the Massachusetts Maternity Leave Act (“MMLA”), M.G.L. c. 149, §105D, only applied to female employees by its literal terms. The Massachusetts Commission Against Discrimination (“MCAD”), the agency tasked with enforcing the MMLA, has taken the position that if the MMLA was applied literally, it would be unconstitutional, as it would give female employees greater employment rights than men. Although initially intended to protect women who were giving birth to children, since the MMLA also protects women who adopt children, it is not about the physical “disability” associated with giving birth to a child.  Thus, the argument goes, men should also be covered by its protections.  The conflict between the literal terms of the MMLA and the MCAD’s guidelines for interpreting the MMLA created difficulty for employers who were not subject to the Family and Medical Leave Act (which entitles eligible employees, regardless of gender, to up to 12 weeks of unpaid leave for the birth or adoption of a child).

On his last day in office, Governor Deval Patrick settled the matter once and for all, by signing into law a bill that expressly expands the protections of the MMLA to all employees, regardless of gender.

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Make Sure You Can Afford to Pay a Bond Before Seeking an Injunction

Posted in Contracts, Injunctions and Attachments, Pre-Litigation Considerations

In order to obtain a an injunction under federal law, the moving party has to show each of the following:

(i) It has a likelihood of success on the merits of its claim.

(ii) Without injunctive relief, it would risk suffering irreparable harm.

(iii) Such harm outweighs the irreparable harm that the non-moving party would suffer if an injunction were to enter.

(iv) Entering an injunction is in the public interest.

In addition, however, Rule 65(c)  of the Federal Rules of Civil Procedure states that:

The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.

Indeed, as a recent case from the District of Massachusetts confirms, this is no small technicality, and something to which any company should give due consideration before having its outside litigation counsel seek injunctive relief.

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Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know

Posted in Compliance, Policies & Notices, Employee Benefits

stethoscopeAs indicated in a recent blog post in the Harvard Business Review, entitled “Who Has Paid Sick Leave, Who Doesn’t, and What’s Changing,” paid sick leave traditionally was a benefit that only some employers provided, and in some cases only to certain employees. In recent years, however, increasing numbers of cities and states have begun mandating that employers provide this traditionally voluntary benefit. In fact, if President Obama makes good on his promise from his State of the Union address, there will be a national standard for mandatory paid sick leave. With the fast-changing landscape of rules and regulations related to paid sick leave, in-house counsel and employers need to keep alert. In Massachusetts, for instance, voters approved a ballot measure which goes into effect on July 15, 2015.
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