In addition to having a choice of law provision in a contract (a topic on which I posted last week), many contracts also include what is commonly known as a forum selection clause. Such clauses can be extremely important and can have an impact that goes well beyond simply setting up one party as the “home team” and the other an outsider.
For instance, even if a contract has a choice of law provision calling for the law of New York to apply to all contract disputes, if a forum selection clause requires suit to be brought in Massachusetts, the procedural law of Massachusetts applies. Consequently, while New York law does not have a trustee process attachment rule like we have in Massachusetts, a plaintiff should be able to obtain a freeze on the defendant’s bank account as long as a showing is made that the plaintiff is likely to succeed on the merits of its claim. The logic behind this is that, freezing a bank account (known as a “trustee process attachment”) is governed by procedural law (Rule 4.2 of the Massachusetts Rules of Civil Procedure), not by substantive law. Alternatively, if a suit was … Keep reading
Many a day, I answer phone calls and emails about non-performing or even “toxic” employees who must be terminated. After grappling with the legal “dos” and “don’ts,” about half of the time the employer asks, “Why did I ever hire this person?”
The answer is not purely a legal matter. Marc Andreessen, a very successful entrepreneur, venture capitalist and software engineer, suggested his answer in a blog post entitled, “How to hire the best people you ever worked with,” several years ago. Simply stated, he recommends that employers take time to look at their criteria and their process. There are certainly many smarter and wiser than I who have written on the topic of the “perfect hire,” but after years of advising clients on terminating employees, I’d like to share a few tips that I’ve learned about hiring employees, in part, inspired by Andreessen’s sage advice.… Keep reading
Often, one of the last provisions in a contract will say:
This contract shall be governed and construed in accordance with the laws of the State of ______.”
Most courts will abide by the parties’ choice and apply the law designated by them – even if the law selected is not from the state where the case is being tried. It is only in limited situations, such as (i) where application of the selected law would undermine a significant public policy of the jurisdiction where suit is filed, or (ii) if the locale of the law selected has no relation to the parties or the dispute, that a court is unlikely to abide by the parties’ choice of governing law.
Why should in-house counsel care about choice of law? Well, while most states may have similar common law with respect to garden variety contract or tort claims, all states have statutory claims that only can be pursued if their own law is applicable.… Keep reading
If you read my earlier blog posting, “In-House Counsel and the Attorney-Client Privilege,” and wanted additional insight on the topic, please join me for the webinar “Silence is Golden: The Attorney-Client Privilege” on Friday, June 22 from 12:00 pm – 1:00 pm (EST), sponsored by the Global Outsourcing Association of Lawyers. I will address when the privilege applies, what the privilege covers and when the privilege is waived. There will also be opportunities for you to submit questions. Please click here to register.… Keep reading
In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records. Here in Part 3 and the last part of this series, I address the process of the handling of the documents.
Step 5: Handling Documents with CORI
Criminal records information obtained from any source is confidential, and employers must take precautions to insure that such information is protected from disclosure. Because of the highly confidential nature of criminal records, the number of individuals who are authorized to request, access, receive and review such information must be limited, and there are strict procedures for handling, storing and destroying criminal records information. The new regulations provide for controls by:
- Requiring the designation of a CORI Representative for an employer;
- Requiring a Secondary Dissemination Log to track all distribution of CORI;
- Limiting employer registration for CORI to one year increments; and
- Limiting the validity of employee or applicant Acknowledgement Forms to 12 months from the execution date or the end of employment, whichever is sooner.
… Keep reading
In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012. This post addresses the next two steps in this process.
These blog posts also address when an employer conducts its own CORI checks. However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks. If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.
Step 3: Notifying Employee/Applicant of CORI
Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.
If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:
- notify the individual in writing of the potential adverse employment action;
- provide a copy of the CORI, identifying
… Keep reading
Massachusetts enacted broad reforms to its Criminal Offender Record Information (“CORI”) laws in August 2010. These reforms emphasize existing non-discrimination requirements and provide new requirements for accessing records through the on-line system (“iCORI”), as well as using and maintaining criminal records.
The first part of the CORI reform laws became effective in November 2010, requiring employers to refrain from asking employees and job applicants to provide their criminal record history. The second part became effective May 4, 2012, requiring employers to follow certain procedures for obtaining and handling criminal records information when screening existing employees and applicants, and providing employees/applicants with certain due process rights before an employer can make an adverse employment decision based on such records.
The CORI system is complicated, and employers can easily and unknowingly run afoul of its mandates and prohibitions. To help you avoid exposure to these risks, I have broken down the CORI process into five steps. The first two steps are detailed in this post and the remaining steps will be explored in separate posts in the coming weeks.
Step 1: Registering and Preparing for CORI Access
Employers must register with the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) to … Keep reading