When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

1. Pre-employment Drug Testing

Many employers require job candidates to successfully pass a drug test as a condition to receiving a job offer. Prior to the legalization of marijuana, a positive test for marijuana use by a job candidate was an indication of illegal drug use and clear grounds for rescinding an offer of employment. Since legalization of medical and recreational use, from a legal standpoint, rescinding a job offer based on testing positive for marijuana use is still generally permitted. From a practical standpoint, however, the rationale that marijuana use is illegal no longer exists and brings into question the rationale for drug testing for marijuana at … Keep reading

So your company is considering getting into a new area of business, and to do so, it will have to hire a variety of talent. While the launch of the new venture is not a certainty, the prospects of it are enticing, and time is of the essence. Thus, when talking to potential new hires, you want to focus on the positives and the possibilities. As a recent decision from the federal District Court, Bhammer v. Loomis Sayles and Company, Inc., makes clear, however, failing to disclose factors that may affect the viability of the new opportunity can be fraught with peril.… Keep reading

As regular readers of this blog know, a day that is scheduled to be filled with relatively routine and non-controversial matters can get turned upside and require immediate action without any advance notice. One such situation occurs when information comes to light that an employee is unfit to continue in his or her current position and should be terminated. Even if in-house counsel and the business decision-makers have complete confidence that the information justifies termination, however, there is a risk associated with not giving the employee a chance to at least explain his or her actions.… Keep reading

Last week I had the pleasure of being a panelist at the Association for Corporate Growth (Boston) and the Turnaround Management Association (Northeast) joint conference on “Challenges and Opportunities in US Manufacturing.” A theme common to all of the speakers was the need to address workforce issues, whether with respect to training, engagement or transition. 

The challenges posed by human capital can often propel or derail improvement strategies, yet certain employment law issues are often overlooked or only addressed at the last minute. If in-house counsel are aware that an improvement plan that requires the exit of employees is being considered, the following issues in advance may help alleviate some last minute problems.

  1. Be sure that all employees have up-to-date, enforceable post-employment restrictive covenants. After implementing a layoff or termination of employees, the last thing that a company needs is to be surprised by a former employee’s attempt to use the company’s confidential information or goodwill to give a competitor an advantage. Reviewing existing confidentiality, non-solicitation and non-competition agreements for enforceability under applicable state laws, and even considering the company’s plan (and costs) for enforcement of post-termination restrictive covenants, will go far to help avoid unpleasant surprises.
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For entrepreneurs starting a new business, the focus often is on developing the products or services being offered by the business and, maybe, financing for getting (and keeping) the business off the ground. Yet, regardless of whether the business offers products or services, no business can succeed without people. Therefore, setting up proper intake systems for hiring at an early stage is critical in order to limit exposure to employment issues as the business grows. One easy way to do this is by using a hiring/on-boarding checklist like the one set out below. While this checklist is not intended to be a comprehensive list of issues that all businesses need to consider when hiring, it should provide at least some general guidelines for hiring and on-boarding new employees. Every state has different laws applicable to hiring and on-boarding, so be sure to check your applicable state’s laws.

Prior to hire:

  • Prepare job application (for Massachusetts employees, you cannot request criminal history information and must include a statement that requesting the candidate to undergo a lie detector test is unlawful).
  • Prepare employee handbook, including “at will” status, hours of work, absence policies, anti-harassment/anti-discrimination policies (be specific about no retaliation and
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Just as in romance, employer-employee relationships often are at their best in the courting stage.  During the after-glow of an initial hire, many employers wish to make new employees feel welcome by sending confirmatory offer letters.  Yet, in that warm and fuzzy moment, employers also should keep in mind that they may be binding themselves to certain obligations to which they never intended to be bound. 

To minimize regret when the employer-employee relationship goes sour, here are my top six tips of things to avoid in offer letters:

  1. If you intend for the employee to actually stay on for a set period of time, the term may be included, but be sure to couch the term as “anticipated term” and allow yourself the ability to terminate the relationship before the end of the term.  If the employment is “at-will,” specifically state “your employment is at-will, which means that you or the company may terminate your employment at any time for any reason or no reason at all.”
  2. Avoid stating compensation as an annual salary.  For example, state that the compensation to be provided an employee is $X per week, which is the equivalent of $Y annualized.  A promise of
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Hiring: Getting it Right from the Start

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

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.
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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
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