In a stunning turn of events, the Massachusetts Supreme Judicial Court has reversed its April 1 ruling in Ayeprel v. Phules, on which I reported yesterday. In an extremely short opinion, the Court simply said, “We reverse our ruling that adopted the so-called ‘work spouse privilege’ and hope that everyone had a happy Ayeprel Phules Day.”
In a closely watched case, Ayeprel v. Phules, the Supreme Judicial Court of Massachusetts formally recognized that confidential communications between so-called “work spouses” may be privileged. The 5-4 decision makes Massachusetts the first state in the country to adopt such a privilege.
The genesis of this ruling dates back to 2008, when Marcus Ayeprel was accused through an anonymous posting on his company’s intranet site of having embezzled funds from the company’s March Madness office pool. Believing that his colleague, Judith Phules, was behind the allegations of embezzlement, Ayeprel sued Phules for defamation and intentional infliction of emotional distress. Because Ayeprel knew that Phules had a particularly close relationship with another co-worker, Sidney Finch, Ayeprel sought to depose Finch to uncover whether Phules had admitted to him her involvement in the intranet posting. While Finch admitted generally that he and Phules had discussed what appeared to be discrepancies in the March Madness pool proceeds, Finch refused to divulge the substance of his conversations with Phules. When pressed to justify his objection, Finch’s counsel said that the conversations were privileged because Finch and Phules were “work spouses who intended such communications to remain in confidence.”
Ayeprel moved … Keep reading
In a recent post, I discussed how a company could be liable for referencing a third-party’s unbiased endorsement if, unbeknownst to that company, the basis for the endorsement turned out to be unjustified. In another advertising-related development last week, the Federal Trade Commission (FTC) issued new guidelines: How to Make Effective Disclosures in Digital Advertising.
One key point the FTC makes in the new guidelines is that when a disclosure is necessary to ensure that an ad is not misleading or unfair, the disclosure must be clear and conspicuous. Recognizing that this can be particularly challenging when ads are viewed on mobile devices such as smart phones and tablets and/or in the context of other emerging technologies, the FTC explains in detail how the following five circumstances affect the clarity and conspicuousness of disclosures when advertisements are viewed on non-traditional media:
Although the entire publication is less than 25 pages of text (including a number of useful examples), you can review a nice summary of the new guidelines in a post in the Covington and Burling blog, Inside Privacy.
In-house counsel should be … Keep reading
As I mentioned in some of my prior posts, the Massachusetts Weekly Payment of Wages Act (“Wage Act”) poses many challenges to employers due, in part, to the vagueness of its terms, the strict liability it imposes on employers (and individuals having management of the company), and the threat of treble damages and attorneys’ fees. One thing is clear, however: commissions are considered “wages” under the Wage Act if they are “definitely determinable” and have become “due and payable.” While many in-house counsel and employers are aware of this, they mistakenly assume that their company can avoid violating the Wage Act if the company’s commission plan states that commissions are payable: (a) only if the employee is employed at the time the employer decides to pay them, or (b) only at the employer’s discretion. As Prudential Insurance Company of America recently found out, however, simply including such a clause may not provide enough protection if the plan does not clearly address when commissions are “definitely determinable” and when they are “due and payable.”
Prudential had an elaborate nine-page document outlining its Regional Coordinators’ Sales Compensation Plan. One of its long-time employees, Christopher McAleer, claimed that he was terminated … Keep reading
When an employee talks to in-house or outside counsel for the purpose of obtaining legal advice for the company, that communication will be privileged and can be protected from disclosure. Likewise, when in-house counsel is meeting with several employees at the same time for the purpose of gathering information to be used for legal advice, the communication that takes place will be privileged.
Notwithstanding the fact that the attorney-client privilege applies to communications between a lawyer and a client, many people still believe that communications amongst employees are protectable even if no attorney is present, as long as they are discussing an ongoing or potential litigation. That is a misguided notion, and looking at the facts of a 4th Circuit case, US v. Tedder, reveals how dangerous having such a misconception can be.… Keep reading
The Director of the Office of Federal Contract Compliance Programs (OFCCP), Patricia A. Shiu, just announced that prior voluntary guidelines and compliance standards for federal contractors and subcontractors to comply with equal pay obligations will be rescinded, effective February 28, 2013. The OFCCP will be instituting new procedures which, in effect, would broaden the scope of OFCCP’s investigations and allow OFCCP to “use every enforcement tool at its disposal to combat pay discrimination.”
In connection with its new efforts to remedy pay discrimination, the OFCCP issued Directive 307, setting forth the procedures for OFCCP contractors to review contractor compensation systems and practices. The OFCCP also issued helpful “FAQs” to assist in navigating through the Directive and will be providing webinars to assist contractors with compliance.
We have a few of our own FAQs which may be helpful to employers and in-house counsel:
Q: Does this apply to my company?
A: If you are an employer with federal service or supply contracts or subcontracts that exceed $10,000 or that will (or can reasonably be expected to) accumulate to more than $10,000 in any 12-month period, you are required to comply with Executive Order 11246, Section 503 of the … Keep reading
It should come as no surprise that making a false statement about a competitor’s product or service is actionable. Similarly, albeit slightly less obvious, repeating a false statement that someone else makes about a competitor also may be actionable if you have reason to believe that the statement is false or if you recklessly repeat it without making any effort to determine if that statement is true or false. In Genzyme Corp. v. Shire Human Genetic Therapies, Inc., however, the District of Massachusetts took the concept of holding someone liable for republishing another’s unbiased statement to a whole new level. … Keep reading
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:
In the January 24-31, 2013 “Business View” section of the Boston Business Journal, State Senator William Brownsberger and State Representative Lori Erlich claimed that one reason Massachusetts is losing jobs to Silicon Valley is that California law prohibits non-compete agreements, whereas in Massachusetts they are routinely enforced. The authors then use this conclusion to argue that the Commonwealth should legislate the elimination, or at least curtail the enforceability, of non-compete agreements.
While I have no reason to doubt that Senator Brownsberger and Representative Erlich genuinely believe that eliminating or curtailing the enforceability of non-competes would be beneficial to the Commonwealth, their argument is deeply flawed. As an initial matter, the legislators’ starting point is the “dozens of stories [they have been told] of young workers whose careers were delayed or substantially derailed by overreaching noncompetition agreements.” Even assuming all of these stories are true, if the issue is the impact non-competes are having on the Massachusetts economy, the real starting point should be the number of people who actually left the Commonwealth simply to avoid signing a non-compete agreement. Further, while Senator Brownsberger and Representative Erlich provide no empirical or even anecdotal data with which to make such … Keep reading
By popular demand, here again are what I consider to be the top 5 myths related to the attorney-client privilege. I recently spoke at a presentation to the Northeast Chapter of the Association of Corporate Counsel about the ways these myths (and the concomitant realities) can impact how in-house counsel interact with their business clients.
