Employment Matters Blog

It’s The End of the World as We Know It: Life after Non-Competes in Massachusetts (Why You Should Feel Fine)

Posted in employee mobility, Employment Legislation, Massachusetts, non solicitation, Non-compete

Our colleague, Sarah Hogan, recently posted a fantastic entry on Mintz’s brand new Technology Matters blog about Massachusetts’ proposed non-compete legislation, with practical guidance for what its passage might mean for your business.  We hope that you will check out this insightful and informative piece here.


A Check on the EEOC Attack on the Credit Check

Posted in Applicant, background checks, credit report, EEOC

Written by Jessica Catlow

We have written a few times about the EEOC’s closer inspection of background checks and the use of criminal records in employment decisions because of their potential adverse impact on classes of applicants. The EEOC has also been focusing on the use of credit checks in hiring decisions for the same reason, and has commenced litigation against employers who use credit checks. Unfortunately, for the EEOC, a federal appeals court, in EEOC v. Kaplan Higher Education Corp., recently disarmed the EEOC in its attempt at challenging this common practice.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 37: Stalking the Elusive “Variable Hour Employee”

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi and Ed Lenz (Senior Counsel, American Staffing Association)

For “applicable large employers” (i.e., generally, those employers who employed an average of at least 50 full-time employees on business days during the preceding calendar year), determining which employees are “full-time” employees is central to their efforts to comply with the employer shared responsibility provisions of the Affordable Care Act.

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Law360: Employers Shouldn’t Strike Out On Leave For New Dads

Posted in FMLA, New York

Recently, New York Mets player Daniel Murphy was criticized for taking a few days off at the start of the season to bond with his newborn.  In this Law360 Article, I comment on this issue and weigh in on what employers should be doing to comply with the Family and Medical Leave Act.

Over Hill, Over Dale, the NLRB Pens Another Cautionary Tale: Board Strikes Down Work Rules Prohibiting Negativity and Gossip

Posted in NLRB, social media

By David Katz

The NLRB is back at it, finding last week in Hills and Dales General Hospital, that seemingly innocuous policies prohibiting negativity and gossip in the workplace and requiring employees to represent their employer in a positive and professional manner violates the National Labor Relations Act.

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Retirement Plan Amendment Requirements Post-Windsor

Posted in employee benefits, IRS

Written by Ann Fievet

The recent release of Notice 2014-19 and IRS FAQs provide some initial pieces of the guidance that the IRS first promised in September 2013 regarding administrator obligations when amending employee benefit plans to account for the Supreme Court’s decision in United States v. Windsor and Rev. Rul. 2013-17.

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Brave New World or California Dreaming? Governor Patrick Proposes Legislation Banning Non-Compete Agreements

Posted in employee mobility, Employment Legislation, Massachusetts, non solicitation, Non-compete, restrictive covenants, Trade Secrets

Written by Andrew Matzkin

At an economic development summit earlier today in Newton, Massachusetts, Governor Patrick stated that he will propose an economic growth bill that includes a prohibition on non-competition agreements that discourage workers in high-tech companies from taking their skills to a competitor. Governor Patrick stated that such agreements move beyond their core importance – protecting company trade secrets and confidential information – and instead unnecessarily stifle competition. “In California, another tech hub, they don’t have non-competes and they’re doing pretty well,” Patrick said in a previous appearance on his monthly radio show. “We want to enable that same free flow of talent in an innovation hub here in Massachusetts which is booming and it ought to have as few restraints on it as possible.” We will provide more details regarding the proposed bill after it is published in full. Currently it appears that the bill will be modeled after California’s analogous regulations, which essentially declare such covenants to be void when based solely on an employment relationship. In turn, Governor Patrick will seek to have Massachusetts adopt the Uniform Trade Secrets Act, which prevents workers from taking companies’ intellectual property to other businesses but leaves them free to join or launch competitors (a large majority of states, including California, have adopted the Uniform Trade Secrets Act). Governor Patrick’s proposal is likely to prompt significant debate in the state legislature. As noted in a Boston Globe piece published earlier today, Governor Patrick appears mindful of the concerns of businesses and lawmakers – the proposed bill would allow businesses to continue limiting certain activities by former employees (such as stealing clients), and would not affect nondisclosure clauses that prevent former employees from publicizing private company matters.

Hope Springs Eternal . . . Except for a Volunteer at Major League Baseball’s FanFest on the Losing End of a Wage and Hour Class Action

Posted in class action, collective action, FLSA, New York, New York Labor Law, Wage and Hour

In baseball, the beginning of spring means hope for fans of even the most hard luck teams. Unfortunately for one erstwhile fan, the first days of spring ushered in a dismissal of his putative wage and hour class action. The decision, Chen v. MLB, emerged from the Federal District Court for the Southern District of New York and its significance may lie less on the court’s reasoning and more on what it presages for the rising tide of litigation over the right (or lack thereof) of volunteers to compensation for time “worked.”

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National Law Journal: Labor Lawyers Predict NLRB Fumble on Football Decision

Posted in NCAA, NLRB

Tyrone Thomas is quoted in this National Law Journal piece examining the NLRB decision to include scholarship football players as employees of Northwestern University. The article focuses in particular on whether the decision will set a precedent for other colleges and universities, and whether the decision will stand or face federal court action.

The Affordable Care Act—Countdown to Compliance for Employers, Week 38: Congress Eliminates Separate Cap on Deductibles

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi

In a rare display of bipartisanship, Congress voted to eliminate the Affordable Care Act’s separate cap on deductibles that applies to individual and small group insurance products. (These limits never applied to large fully-insured groups or to self-funded plans.) While this change affects only a subset of employers, it is nevertheless noteworthy since Congress rarely reaches consensus on any modifications to the Act.

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