B&B Partner David Belfort was called upon for comment and quoted extensively in a recent Massachusetts Lawyers Weekly (“MLW”) article discussing enforcement of employee non-compete agreements. The front page article entitled “Company acquisition leads to non-compete confusion” was published in the March 9, 2017, edition of MLW and focused on the implications on the enforcement of a restrictive covenant first in the case of an assignment and then as to statutory merger of the employer.
Two recent successive rulings by the Massachusetts Superior Court Business Litigation Session (NetScout Systems, Inc. v. Hohenstein) demonstrate that an employee non-compete agreement will only be as strong as the structural formation and modifications of the employer corporation. In these two opinions, Judge Kenneth Salinger explained that an “assignment” of rights to a new entity, from one company to another, is treated less deferentially in enforcement of non-competition terms than a statutory merger, where a subsidiary of the original employer stands in the same legal shoes as the original employer.
In an initial ruling on a motion for preliminary injunction, the Court denied enforcement of a non-compete provision which included an assignment provision that included the company’s subsidiaries and affiliates, but did not specifically include its assignees in the definition of the company employer. Moving for reconsideration, the acquiring company was able to present new evidence that it was, in fact, a legal successor to the original company employer. Despite the fact that the Court then found the non-compete to be enforceable, Judge Salinger concluded that the non-compete restrictions were too geographically broad. As such, the non-compete could only be applied to the geographic area in which the employee formerly worked and he was free to continue working in a new region.
In this case the non-compete provision ultimately did not make a practical difference to the employee’s ability to work because the judge only prohibited him from working in his former region, which was outside of the territory he handled at his new employer. Nonetheless, Attorney Belfort explained to MLW that these rulings provide a “cautionary tale” and illustrate the importance of careful drafting and review of non competition agreements. Attorney Belfort also stressed that, while these cases may provide a road map for enforcement to legal professionals, employees who have not sought legal counsel are often pressured to sign non-compete agreements “largely in the dark.” In consideration of the complexity of non-compete agreements and their enforcement, Attorney Belfort added that this is an area of the law that screams out for legislative intervention.
Be sure to read the full article at: http://masslawyersweekly.com/2017/03/09/company-acquisition-leads-to-non-compete-confusion
Attorney Todd Bennett was quoted in the January 9, 2017 edition of “Massachusetts Lawyers Weekly.” The article entitled, “State Judge rejects federal test on meal break compensability,” concerns the Massachusetts Wage Act and the Massachusetts Overtime law.
In the underlying case, a group of security guards brought suit against their employer for failing to pay them for meal breaks, and for failing to pay them overtime. The class of employees claimed that because during their meal breaks they were required to remain on site, in uniform, and respond to their radios, they should get paid during these breaks. The Suffolk Superior Court (Business Litigation Session) reviewed whether or not it should apply a) the “Predominant test,” or b) the “Relief from All Duties Test” in deciding upon the employer’s motion to dismiss and to decertify the class action. Essentially, the Predominant test asks whether or not an employee’s meal break time is spent predominantly for the benefit of the employer or the employee. The “Relief from All Duties Test” asks whether or not an employee is relieved from all of her or his duties during the break. In a favorable ruling for the employees, the Court applied the “Relief from Duties Test” in denying the employer’s motion to dismiss and to decertify the class. Attorney Bennett was asked to comment on the outcome of the case, where he provided insight to the Court’s ruling. The full article can be viewed at the following link: http://masslawyersweekly.com/2017/01/05/state-judge-rejects-federal-test-on-meal-break-compensability/
On October 27, 2016, Bennett & Belfort, P.C. attorney Andrew McIlvaine served as an invited panel speaker at the Massachusetts Employment Lawyer Association. He spoke on developments in the law on transgender discrimination in connection with his recent victory on behalf of a transgender client in a case tried before the Massachusetts Commission Against Discrimination (“MCAD”).
Attorney McIlvaine discussed the precedential impact of the Tinker v. Securitas Security Services USA case and he shared practice tips on effectively representing claimants in a Public Hearing at the MCAD. The Tinker case involved a managerial supervisor’s ridicule of a transgendered subordinate and his refusal to respect an employee’s request for gender appropriate pronouns. Mr. McIlvaine emphasized that Tinker is an important result because it stands for the proposition that such misconduct can indeed rise to the level of actionable employment discrimination. The emotional distress damages award in the Tinker case, $50,000, is one of the larger “garden variety” emotional distress damages awarded in a case tried at the MCAD. The MCAD also assessed statutory interest and awarded Mr. Tinker reimbursement of virtually all of his attorneys’ fees.
Should you have any questions on the forefront of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.
We are proud to announce that Thomas Reuters / “Super Lawyers” has listed Bennett & Belfort P.C. Partners, David E. Belfort; Todd J. Bennett; Eric R. LeBlanc; and Michael L. Mason among the 2016 New England Super Lawyers/Rising Stars.
Mr. Bennett and Mr. Belfort were selected to the list of top 100 Lawyers in New England. Attorney Belfort was selected as a “Super Lawyer” in the area of Employment Litigation, and Attorney Bennett was selected as a “Super Lawyer” in the area of Business Litigation. Attorney Mason was selected as a “Super Lawyer” in the area of Employment and Labor, and Attorney LeBlanc was selected as a “Rising Star (Super Lawyers under 40)” in the area of Business Litigation.
“Super Lawyers” evaluates attorneys who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. While up to 5 percent of the lawyers in a state are named to Super Lawyers, no more than 2.5 percent are named to Rising Stars.
Bennett & Belfort P.C. concentrates its practice in business and commercial litigation and employment law and litigation.
Among the ballot questions posed this Election Day, November 8, Question 4 asks voters to decide whether to legalize marijuana (and to regulate it similar to alcoholic beverages). While Massachusetts has permitted medical marijuana since 2013, legalized marijuana raises a number of different questions. Among the most important of these is: how would legalized marijuana impact the workplace?
To the extent the proposed legislation discusses employer’s ability to prohibit marijuana use, it states:
“This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Section 2 (e).
On its face, the law makes clear that employers are still free to prohibit the use of marijuana while at the workplace. Some employers are even required to prohibit marijuana use. For example, Federal contractors and employers who receive federal grant money may be regulated by the federal Drug Free Workplace Act, which requires those employers to adopt a zero tolerance policy at their workplaces, and requires the adoption of other activities aimed at maintaining a drug free workplace. Similarly, many employers with workers in safety-sensitive positions, including employers of commercial drivers, will want to adopt comprehensive drug policies that make clear that marijuana is not permitted onsite.
For employees, it is important to be familiar with whatever drug policies the employer has in place. Recreational marijuana users do not have the same theoretical protections that extend to individuals who use marijuana for medicinal purposes, who may have protection under state anti-discrimination laws. Unlike other states to enact marijuana legislation, Massachusetts does not have a provision that prohibits employers from terminating employees who engage in lawful conduct outside of the workplace.
The language proposed by Question 4 is silent about drug testing in the workplace. It is likely that Massachusetts privacy laws will continue to limit an employer’s ability to drug test employees. In general, Massachusetts privacy laws already limit private sector employers’ ability to administer random drug testing, and prevent public sector employers from administering drug tests unless the employer has probable cause.
Bennett & Belfort, partner, David E. Belfort, along with MBA Labor and Employment Section Council Vice-Chair Attorney Meghan H. Slack, co-chaired a September 29, 2016, panel at the Massachusetts Bar Association entitled “Handling Psychiatric Disabilities in the Workplace.”
The panelists included, Attorney Laurence J. Donoghue of Morgan, Brown & Joy and Attorney Susan Fendell of the Mental Health Legal Advisors Committee.
The lively discussion covered a wide range of topics impacting employees with psychiatric disabilities and their employers. The panelists debated wide ranging issues from hiring to separation, including reasonable accommodations, Family Medical Leave Act (FMLA) and violence in the workplace.
On September 1, 2016, the Massachusetts Commission Against Discrimination (“MCAD”) issued important Gender Identity Guidance on complying with Massachusetts’ laws forbidding discrimination based on gender identity.
Gender identity has been defined in Massachusetts as meaning “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” M.G.L. c.4, sec. 7, fifty nine. The term encompasses, but is not limited to, persons who are transgender.
In support of the guidelines, the MCAD cited the Tinker v. Securitas Security Services USA, et al. case in which Bennet & Belfort, P.C., Attorney Andrew S. McIlvaine, on behalf of his client, Alyx Tinker, obtained a favorable decision in a 2016 transgender discrimination case. MCAD Docket No. 13-BEM-01906, Decision Of The Hearing Officer (August 9, 2016). The case is cited by the MCAD in support of the rule that a supervisor’s ridicule of a transgendered subordinate and refusal to respect an employee’s request for gender appropriate pronouns can amount to unlawful employment discrimination. M.C.A.D. Gender Identity Guidance, pg. 2 (Sept. 1, 2016).
The Guidance also offers instructions on complying with Massachusetts laws forbidding gender identity discrimination in housing, credit, and public accommodation settings.
Should you have any questions on this or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.
On August 9, 2016, B&B attorney Andrew S. McIlvaine, on behalf of his client, Alyx Tinker, obtained a favorable determination at the Massachusetts Commission Against Discrimination (“MCAD”) after presenting evidence at three day Public Hearing. Hearing Officer Eugenia M. Guastaferri, in a 19 page decision, found that Securitas Security Services USA, Inc. (“Securitas”) discriminated against Mr. Tinker based on his transgender status. MCAD Docket No. 13-BEM-01906, Decision Of The Hearing Officer (August 9, 2016). Specifically, the commission found in favor of Mr. Tinker’s claims against Securitas and his former supervisor for unlawfully discriminating against him on account of his gender, gender identity, and sexual orientation.
To briefly summarize the facts, Mr. Tinker began employment at Securitas as a female who self-identified as lesbian. During his employment, he disclosed to his co-workers and supervisors that he was transgender and began the process of transitioning to identify as a male. He underwent hormone therapy and surgery as part of the transition process, changed his name, and asked his supervisor to refer to him by his new name and with male terms and pronouns.
The MCAD found that Mr. Tinker’s Securitas supervisor did not respect Mr. Tinker because he was transgender and he discriminated against Mr. Tinker because of our client’s gender, sexual orientation, or gender identity. The MCAD decision credited Mr. Tinker’s testimony that his supervisor ridiculed Mr. Tinker stating that he would “never be a real man,” that his insides would fill with scar tissue, and that the transition he was undertaking was wrong. Securitas’ supervisor was attributed with telling Mr. Tinker that he was unclean and going to go to hell. After hormone treatment began, the Securitas supervisor was found to have told Mr. Tinker that his brain would continue to grow because biologically men are smarter than women. While Securitas claimed that its supervisor stopped referring to Mr. Tinker with female pronouns within months of being asked to suspend such statements, this assertion was undermined based on documentary evidence to the contrary. In fact, an email the supervisor sent to Securitas upper management repeatedly referred to Mr. Tinker using female pronouns (at least nine times in one email). The email was written roughly two years after Mr. Tinker had first asked to be referred to as a male.
The MCAD found that Mr. Tinker complained about the way he was being treated to a series of Securitas supervisory managers. Nonetheless, Securitas never disciplined Mr. Tinker’s supervisor for the way he communicated to or about Mr. Tinker, including for the ongoing use of female pronouns to refer to Mr. Tinker years after Mr. Tinker’s request. Mr. Tinker suffered emotional stress and anxiousness due to his maltreatment at work, had nightmares and trouble sleeping, and came to dread the prospect of being alone with his supervisor.
MCAD Hearing Officer Eugenia Gustaferri awarded Mr. Tinker Fifty Thousand Dollars ($50,000) in emotional distress damages and invited a petition to reimburse Mr. Tinker for attorneys’ fees in accordance with applicable law. The ruling also requires Securitas to take corrective action and conduct training of human resources personnel, managers, and supervisors on issues related to gender and transgender discrimination in the workplace.
The decision offers significant precedent relative to the rights of transgender individuals to be free of discriminatory harassment in the workplace, and the responsibility of employers to take harassment complaints about gender, sexual orientation, and gender identity seriously.
Congratulations to Mr. McIlvaine and Mr. Tinker for a hard fought victory that stands for LGTBQ equality and rights in the workplace.
Bennett & Belfort, P.C. is pleased to announce that Attorney Craig Levey has joined the firm. Mr. Levey focuses his practice on employment and business matters, representing both individuals and companies. He litigates claims of discrimination, sexual harassment, retaliation, and wage & hour disputes, as well as partnership and fiduciary duty issues. Mr. Levey also drafts, reviews, and negotiates non-competition, non-solicitation, and severance agreements, and routinely counsels companies on all facets of the employer-employee relationship, including the drafting and implementation of company policies, procedures, and employee handbooks.
Mr. Levey has experience in a wide variety of cases in Federal, Superior, and District courts, and before administrative tribunals, including the Massachusetts Commission Against Discrimination, Department of Unemployment Assistance, and the Division of Administrative Law Appeals.
Commenting on the move, Mr. Levey said, “Bennett & Belfort offers a creative and collaborative environment to work, which is the perfect platform for me to grow my practice. I am excited to join such a strong and determined team of attorneys, and I look forward to continuing the firm’s tradition of delivering top-notch service to its clients.”
Mr. Levey is a former associate attorney at Looney & Grossman, LLP and Davis, Malm & D’Agostine, P.C. in Boston.