Bennett & Belfort P.C.
The B&B Docket Blog
Developments in the Dynamic World
of Business and Employment Law

Archive for October, 2013

Bennett and Belfort, P.C. Partner, Todd Bennett, Quoted in Boston.com and in The Sunday Boston Globe

Posted on: October 30th, 2013 by admin No Comments

Bennett-photo-10-2013-1On October 30, 2013, Bennett and Belfort, P.C. partner, Todd Bennett, was quoted in an article entitled, “What to be Concerned About When Leaving a Company,” which appeared in the “Job Doc” section of Boston.com. The article was written by Elaine Varelas, of Keystone Partners, and focuses on the importance of having a severance agreement comprehensively reviewed, particularly when a restrictive covenant, such as a non-compete provision or a non-solicitation provision, is involved. The link to the article is here and the article will also appear in the November 3, 2013 edition of the Sunday Boston Globe

 

 

 

 

 

 

B&B Announces New Partner and Welcomes New Associate

Posted on: October 23rd, 2013 by admin No Comments

Bennett and Belfort, P.C., is pleased to announce that Michael L. Mason has been named a Partner of the firm. Attorney Mason joined Bennett and Belfort in 2005, concentrating his practice on civil litigation, with an emphasis on employment law and business matters. Mr. Mason is sought after as a speaker on employment-related issues and is a frequent contributor to both professional publications and local print media. Mr. Mason completed his legal studies at the Boston University School of Law. He holds a graduate degree in Philosophy and Social Policy from the American University and an undergraduate degree from the University of Arizona.

Bennett and Belfort also warmly welcomes Andrew S. McIlvaine as an Associate, concentrating on employment and business law and litigation. Prior to joining Bennett & Belfort, P.C., Mr. McIlvaine practiced in Ohio at Palecek, McIlvaine, Hoffmann & Morse, L.P.A., and as a sole practitioner. Mr. McIlvaine received his Juris Doctorate from The Ohio State University College of Law and holds an undergraduate degree from Marietta College.

Bennett and Belfort, P.C. Partner, Todd Bennett, Quoted in “U.S. News and World Report” and “IT World”

Posted on: October 9th, 2013 by admin No Comments

Bennett & Belfort, P.C. partner, Todd Bennett was quoted in the October 8, 2013 edition of “U.S. News and World Report.” The article, written by Arnie Fertig, entitled, “5 Things to Consider Before Accepting a Job Offer” also appeared in “IT World.”

While the article did not focus specifically on Massachusetts law, the notion of careful drafting and review of job offers rings true in Massachusetts as well.  

A poorly written offer letter will not only send a negative first impression to an employee that the company is not detailed oriented and/or that it does not prioritize its employees, but an ambiguous offer letter may create litigation down the road. A prime example of this concept relates to bonuses and commissions.   Ambiguity relative to how and when a bonus or commission is owed to an employee will typically be construed against the employer and in favor of the employee.

Often times, employment terms and certain benefits are subject to negotiation.  The end result of this negotiation may be different than a standard company policy.  Therefore, it is important to document employment terms in an offer letter. 

However, while it is important to capture the core employment terms as well as terms that may be specific to a particular employee, employers should be careful about putting too much information into an offer letter, which can create additional rights that an employee may not otherwise have.    

Massachusetts is an “at will” employment state, meaning that unless there is an employment contract that states otherwise, either party may terminate the employment relationship at any time and for any lawful reason. So, while it is important to clarify essential terms of employment, unless otherwise intended, it is also important to make clear that employment is not for any specified length and that it can be terminated by either party at any time.  A well written employment offer letter can and should clearly outline all essential terms, while making it clear that no contractual rights are being created and that employment remains at will. 

Leave Rights Under The Family and Medical Leave Act: Employers Do Not Have A Right To Remain Silent

Posted on: October 1st, 2013 by admin No Comments

ID-10057279The law creates a right for qualifying employees to take up to 12 weeks of leave in a 1 year period to deal with certain events: deal with a disabling illness, a family member’s serious illness, or the arrival of a new daughter or son.  FMLA leave can be taken all at once, or on an intermittent or part-time basis.  Employers are supposed to post a notice in the workplace outlining the pertinent provisions of the law so qualifying employees have information about their leave rights. That’s enough to comply with the statute, right?

Probably not!  While the statute is somewhat ambiguous, according to an expanding line of regulations and judicial opinions an employer can not remain silent when it has some reason to believe that FMLA leave may apply to an employee’s request for time off – even if employee does not cite the FMLA statute.  The cases suggest that an employer is required to give employees individualized notice of their leave rights under the FMLA each time leave is requested.   Stated another way, if the employer has reason to believe the FMLA may apply, the cases suggest that an employer has a responsibility to affirmatively explain to an employee whether and how FMLA applies in response to each leave request made by the employee.

You have probably seen the ubiquitous employee rights poster in the break rooms and office kitchens of places you have worked.  You may have seen FMLA leave language mentioned in employee handbooks or other written guidance provided by an employer.  These are not the end of the disclosure obligations of an employer.

Federal regulation outlines that when an employee asks for FMLA leave, or indeed any time an employer has knowledge that a leave might qualify for FMLA coverage, the employer has an affirmative obligation to notify the employee of his or her eligibility for the leave.  29 C.F.R. 825.300.  

Hence it may not be enough to just publish generic posters and circulate employment handbooks, employers subject to the law must provide individualized notice of FMLA rights when an employee requests or takes leave and there is sufficient information to suggest that FMLA may apply.  Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, (2002).

And since FMLA leave can potentially be taken on a part-time or intermittent basis, requests for leave which only span a few hours of a particular day or seem very limited in scope (like requested time off for a doctor visits, or for medically related rest) appear to mandate a duty of the employer to give the employee notice of her FMLA rights.  DeFilippo v. CBS Corporation, d.b.a. WBZ-TV, United States District Court District of Massachusetts, Case # 12-11109-JGD (Sept. 3, 2013 motion ruling).

Failing to advise an inquiring employee who is eligible for FMLA leave of her right to the leave can be considered a denial, restraint, or interference with the employee’s FMLA rights.  A lawsuit over a violation of the FMLA normally must be filed within 2 years after the date of the last event constituting the violation, although in cases where an employer willfully violates the law, a lawsuit may be brought within 3 years of the date of the last event constituting the violation. 

An employer found to have restrained, denied, or interfered with the exercise of FMLA rights can be held responsible for an employee’s lost wages and benefits, or actual losses like the cost of providing care (limited by statute to 12 or in some cases 26 weeks), plus a doubling of damages, along with reinstatement, interest, and possibly be made to pay the attorney fees and costs incurred by the employee. 

Furthermore, where an employee reasonably relies on his employer’s misstatements about his right to FMLA leave, some courts will even forbid an employer from benefiting from the normal deadlines (statutes of limitations) to bring an action for violating the FMLA – effectively extending the deadlines for an employee to file a lawsuit.  These remedies are all powerful enforcement rights for aggrieved employees, and strong motivators for employers to get it right the first time.

The FMLA does not apply to every employer or every employee, and each particular employer and employee’s situation will vary.  While the circumstances of every case are different, employers subject to the FMLA need to be attentive to the obligation to provide individualized notice of FMLA rights to employees who request or take leave.