February 2013

Gender equality wages

Gender equality wagesThe 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and compliance standards for federal contractors and subcontractors to comply with equal pay obligations will be rescinded, effective February 28, 2013.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:

  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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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