As in-house counsel, how would you like to tell your CEO: “While our customer lists, pricing information, and business processes are trade secrets, we can’t sue the independent contractor who stole them because we did not do enough to protect those trade secrets.” Sound contrived? Well, that is exactly the ruling one Massachusetts Superior Court judge recently issued in C.R.T.R., Inc. v. Lao. … Keep reading
Compliance, Policies & Notices
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
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:
- Proximity and Placement
- Distracting Factors in Ads
- Multimedia Messages and Campaigns
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
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
Many are familiar with Juliet’s tribute to Romeo: “What’s in a name? that which we call a rose By any other name would smell as sweet.” In the context of employees and independent contractors, however, Juliet is quite wrong. As I discussed in a prior post, it can be perilous to misclassify workers as independent contractors, and, under the Massachusetts independent contractor law, workers are deemed employees unless all three of the following criteria, commonly known as the “ABC” Test, exist:
- the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
- the service is performed outside the usual course of the business of the employer; and
- the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
Further, misclassifying an employee as an independent contractor could trigger violations of other laws, with the Massachusetts Weekly Payment of Wages Act (“Wage Act”) (and its mandatory treble damages and attorneys’ fees) being the most treacherous.
In a prior post, I had discussed the importance of properly investigating allegations of sexual harassment. Now, the National Labor Relations Board (NLRB) has added a related issue to consider: When can employers prohibit employees from discussing ongoing investigations?
In its July 31, 2012 decision in Banner Health Systems, d/b/a Banner Estrella Medical Center and James A. Navarro, the NLRB held that Banner Health’s ongoing policy to instruct employees not to discuss ongoing investigations of employee misconduct with other employees was unlawful. This decision was grounded in the finding that Banner Health did not have business interests that outweighed the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected, concerted activity for mutual aid and protection.
In Banner, the employer’s human resources consultant routinely informed employees when they complained of employee conduct in violation of company policies or law that they should not discuss the matter with other employees while the investigation was ongoing. Banner Health based its prohibition on its “generalized concern over protecting the integrity of its investigations;” however, the NLRB found Banner Health’s justification unpersuasive and insufficient to override employee rights under Section 7, which states:
… Keep reading
Yahoo!, Twitter, Facebook and every possible media outlet have been aflutter with praise and criticism since newly appointed Yahoo! CEO Marissa Mayer announced to Fortune magazine that she is pregnant and taking a “few weeks” of maternity leave and will be “working throughout it”. Though this may be heartening for Yahoo! investors, the typical employer is reminded that its employees are not Mayer and are not likely to follow in her footsteps. Rather, employers must remember that there are federal and state laws that require employers to provide protected leave for many of their employees. Here are five important reminders:
Reminder #1: “Leaves” require a return to work.
The term “leave” is a bit misleading, as the key is “protected” leave, which is the right to take a leave of absence and return to his or her job. Protected leave also means that during the leave, no work is to be done or requested of the employee.
Reminder #2: Leaves may be doubled or tripled for multiple births.
In Massachusetts, a full-time, female employee who has worked at least three (3) consecutive months as a full-time employee or has completed the “initial probationary period set by … Keep reading
A recent decision by a full panel of the Massachusetts Commission Against Discrimination (MCAD) emphasizes the need for supervisors to understand their duty to act to ensure that unlawful harassment allegations are addressed and that any such conduct ceases.
Since 1998, two cases decided by the U.S. Supreme Court, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, enable employers to avoid liability for employee claims of sexual harassment based on a hostile work environment brought under Title VII of the Civil Rights of 1964 if: (1) the employer took reasonable care to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided. Employer policies, training for its supervisors and investigative processes are taken into consideration in determining whether there were sufficient preventive or corrective opportunities provided to employees. If the conduct, however, results in a tangible employment action such as a demotion or termination, then the Faragher/Ellerth affirmative defense is unavailable to the employer.
Although many states have not adopted this defense, a few states have advanced the law at the state level, at least in theory, to permit employers … Keep reading
As of August 30, 2012, administrators of retirement plans that allow participants to select investment of their accounts will be required to disclose specific information about the fees associated with such investments. One of my talented partners in the Labor, Employment and Employee Benefits Group at Burns & Levinson, Evelyn Haralampu, provides some simple guidance about these new disclosure requirements. Click here to read her update.… 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.