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The In-House Advisor Published by Shepard Davidson & Renee Inomata

Category Archives: Separations, Layoffs & Terminations

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Careful Drafting of Non-Competes and Other Restrictive Covenants Can Save the Day

Posted in Contracts, Noncompetition & Other Restrictive Covenants, Pre-Litigation Considerations, Separations, Layoffs & Terminations

It generally is a defense to a breach of contract claim if the defendant proves that the plaintiff was the first one to materially breach the parties’ agreement. As a recent case from the Business Litigation Session of the Massachusetts Superior Court confirms, however, a plaintiff seeking to enforce a post-employment restrictive covenant can avoid… Continue Reading

Can Giving an Employee Praise Get You Into Trouble?

Posted in Separations, Layoffs & Terminations

Many companies try not only to be profitable, but also to be good employers.  Some employers still fear, however, that praising employees too much for good work may create some workplace liability. Fortunately, the U.S. District Court for the District of Massachusetts clarified just before the Thanksgiving holiday in Cagnina v. Philadelphia Insurance Companies, that… Continue Reading

10 Most Overlooked Executive Separation Agreement Clauses – Part 2

Posted in Confidentiality and Non-Disparagement, Separations, Layoffs & Terminations

In Part 1 I shared with you five commonly overlooked terms in executive separation agreements. Here are five more. 6. Release Timing. If the executive is excused from performing work or coming to the office well before her last day of employment, the company may want to have the executive sign an agreement close to… Continue Reading

10 Most Overlooked Executive Separation Agreement Clauses – Part 1

Posted in Separations, Layoffs & Terminations

Executives in this market are moving in and out of companies with greater frequency.  With the myriad legal claims that an executive could assert against an employer, whether meritorious or not, more companies are opting to give executives some compensation or other benefits on the way out the door in exchange for a release and… Continue Reading

Four Workplace Issues In-House Counsel Should Consider in a Business Improvement Plan

Posted in Contracts, Hiring, Separations, Layoffs & Terminations

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. … Continue Reading

Managers of LLCs Can be Personally Liable Under the Massachusetts Wage Act

Posted in Separations, Layoffs & Terminations, Wage & Hour

In a June 13, 2013 decision, the Massachusetts Supreme Judicial Court clarified that managers of Limited Liability Companies (LLCs) can be individually liable for violations of the Massachusetts Weekly Payment of Wages Act, and, thus, be personally responsible for treble damages and attorneys’ fees. In Cook v. Patient Edu, LLC, the lower court had originally… Continue Reading

Caution! Employees Not at Work

Posted in Disability, Medical Leave & Reasonable Accommodations, Separations, Layoffs & Terminations

Although there are many occasions when an employer may lawfully terminate a non-performing or absent employee, if the reason for the non-performance or absence is based on a physical or mental condition – or a perceived physical or mental condition – employers are well-served to carefully scrutinize the facts before deciding to terminate an employee. … Continue Reading

Employment Termination Best Practices, Part Two: Exit Interviews and Post-Termination Activities

Posted in Discipline & Performance Management, Miscellaneous Employment, Separations, Layoffs & Terminations

In my previous post, I shared three best practices for preparing for a potential employee termination.  Here are two additional steps to consider in the termination process: 1. Prepare for possible exit interview scenarios. Terminations are never easy and often become very personal.  In most situations, the key is to conduct the termination meeting as respectfully… Continue Reading

Employment Termination Best Practices, Part One: Preparing for the Termination

Posted in Discipline & Performance Management, Miscellaneous Employment, Separations, Layoffs & Terminations

Employment attorneys and in-house counsel are used to the 4 p.m. phone call informing them that an employee must be terminated “today,” followed by a request for a separation agreement or advice on how to handle the termination.  More often than not, after asking a few questions we discover that, perhaps, the termination should be… Continue Reading

Three Employment Claims to Avoid in 2012

Posted in Compliance, Policies & Notices, Hiring, Labor Relations, Miscellaneous Employment, Separations, Layoffs & Terminations, Supervisor Training, Wage & Hour

Most employment claims can be avoided by simply being aware of what the law requires.  Here are three recurring issues which plaintiffs’ class action attorneys and government agencies are targeting across the country and which can be easily avoided by taking action now. 1.  Misclassification of Workers as Independent Contractors The Internal Revenue Service (IRS)… Continue Reading