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B&B Welcomes Michaela C. May

Posted on: November 27th, 2018 by admin

Bennett & Belfort is thrilled to announce that Attorney May joined the firm’s litigation team in April.  Attorney May comes with vast counseling and employment litigation experience.  Ms. May concentrates her practice in employment discrimination and wage-and-hour matters.  She serves as Co-Chair of the Massachusetts Employment Lawyers Association’s committee on the Massachusetts Commission Against Discrimination.   Michaela’s full biography is at <LINK>

Four B&B attorneys honored with “Super Lawyers” distinction for 2018

Posted on: November 6th, 2018 by admin

 

 

We are proud to announce that Thomas Reuters / “Super Lawyers” has listed Bennett & Belfort P.C. Partners, David E. Belfort and Todd J. Bennett, as 2018 New England Super Lawyers; and Partner Eric R. LeBlanc and Senior Associate Michaela C. May as Rising Stars.

Attorney Belfort was selected as a “Top 100” attorney and in the area of Employment Litigation: Plaintiff, and Attorney Bennett was selected as a “Super Lawyer” in the area of Business Litigation.  Mr. LeBlanc was selected as a “Rising Star (Super Lawyers under 40)” in the area of Business Litigation. Ms. May was selected as a “Rising Star” in the area of Employment and Labor.

“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.

ATTORNEY TODD BENNETT, PARTICIPATES ON FACULTY PANEL AT THE MASSACHUSETTS CONTINUING LEGAL EDUCATION SEMINAR, TRYING CIVIL CASES.

Posted on: October 18th, 2018 by admin

On October 16, 2018, Bennett & Belfort, P.C. Partner, Todd Bennett, shared his trial experience with attendees at the Massachusetts Continuing Legal Education’s Trying Civil Cases, program in Boston.

In this unique program, attendees heard from a panel consisting of: Attorney Bennett, the Honorable Paul D. Wilson, Justice of the Massachusetts Superior Court; Lindsey M. Burke, Director at Kenney & Sams, P.C.; and Warren F. Fitzgerald of Fitzgerald Dispute Resolution LLC. The panel discussed their commentary and experiences relating to a mock trial performed by William J. Dailey, III of Sloan and Walsh LLP and Valerie A. Yarashus of Meehan, Boyle, Black & Bogdanow, P.C.

The program covered everything from pre-trial motions through closing arguments. Attendees also had the opportunity to see how jurors view the case from the jury box, and to vote on the winner.

It was particularly interesting to hear from the Honorable Judge Wilson with respect to how judges expect attorneys to conduct themselves at trial, as well as from different attorneys, some of whom represent companies and some of whom represent individuals.

Attorney Bennett was honored to contribute to this “real time” teaching tool for attorneys just embarking on, or hoping to improve, their civil litigation practices.

NEW NON-COMPETITION LAW MEANS BIG CHANGES FOR EMPLOYERS AND EMPLOYEES

Posted on: September 25th, 2018 by admin

On October 1, 2018, Massachusetts’ new law governing non-competition agreements goes into effect.  This statute is the culmination of many years of efforts to enact some legislative parameters around employment non-competition agreements.  As a result, it reflects a number of trade-offs between pro-employer and pro-employee positions.  The new law also contains some ambiguous provisions that will, no doubt, require interpretation by the courts.

 

Employers and employees should seek specific legal advice regarding the impact of the law in their own circumstances.  However, here are some of the highlights and key provisions to be aware of:

 

  1. This statute covers only non-competition agreements. A non-competition agreement is defined as follows:

 

“an agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended”

 

  1. This law does not impact other restrictive covenants like non-solicitation or non-disclosure agreements. It also does not govern non-competition agreements that are entered into as part of a business sale, or where there is no employment relationship.  Non-competition agreements that are made in connection with the cessation of employment are exempted, as well.

 

  1. The new law only applies to non-competition agreements entered into on or after October 1, 2018.

 

  1. There is now an explicit requirement that consideration be provided in exchange for a non-competition agreement. Employers must provide “garden leave” or “other mutually-agreed upon consideration.”  The garden leave requirement is fifty percent of the employee’s base pay for the duration of the restricted period.  The law does not define “mutually-agreed consideration.”

 

  1. The law contains certain formal requirements, including that agreements be in writing, signed by both the employer and employee, and affirm the employee’s right to consult with counsel.

 

  1. Procedurally, non-competition agreements must be presented at the time of an employment offer or ten days before a new employee’s start date, whichever is earlier. Existing employees may be asked to sign non-competes, but employers must now provide consideration “independent from the continuation of employment.”

 

  1. The law requires that a non-competition agreement be reasonable. It must be no broader than necessary to protect an employer’s trade secrets, confidential information, and goodwill.  It must not exceed one year in duration, and it must be reasonable in geographic scope and in the scope of prohibited activities.

 

  1. Finally, it is important to note that the new law prevents enforcement of non-competition agreements against certain employees, including non-exempt employees, short-term student employees, employees who have been terminated without cause or laid off, and employees who are 18 years old or younger.

 

This is merely a general overview and is not a substitute for legal advice regarding any particular situation.  This new non-competition statute was a long time coming, and it is sure to present many novel issues for employers and employees.  Anyone with questions about how this law affects them should consult with qualified employment counsel.

 

“#METOO” BRINGS SURGE IN SEXUAL HARASSMENT COMPLAINTS

Posted on: June 6th, 2018 by admin

Governor Charlie Baker recently signed an emergency measure granting $250,000 of new funding to the Massachusetts Commission Against Discrimination (“MCAD”).  This action was taken in response to a greater influx of complaints to the agency, likely spurred by the growing “#metoo movement.”

The MCAD, which is similar to the federal Equal Employment Opportunity Commission (“EEOC”), investigates complaints of discrimination including, but not limited to, discrimination in the context of employment, housing and public accommodations.  The “#metoo movement” has raised public awareness of conduct that may constitute sexual harassment in the workplace and changed public opinion about the acceptability of such conduct.  In large part, social media has contributed to the heightened recognition of sexual harassment (which is a form of discrimination) and many other types of discrimination.  As the public discourse grows, it is ever more widely understood that both explicit and implicit biases in the workplace can and do operate to the detriment of women, employees of color, and other persons belonging to groups subject to protection under current law.

In reviewing an employment discrimination complaint, two things that an MCAD/EEOC investigator will likely request are a copy of the employer’s personnel manual, and a record of any investigation the employer might have conducted concerning the alleged discrimination. With this in mind, all employers should thoroughly review their handbooks and discrimination policies and revise them, if necessary, to comport with current law.  Specifically, employers should be sure to have clear, contemporary policies and procedures that:

  • Protect employees from discrimination in the first place, by providing administrators and employees at all levels with guidance and training on what type of speech or conduct might constitute sexual harassment, and the importance of refraining from such harassment;

 

  • Help employees feel safe when complaining of discrimination, by emphasizing the right to report such conduct, providing reassurance that there will be no adverse consequences (i.e. “retaliation”) as a result of bringing a complaint, and offering, when possible, multiple avenues to report discrimination;

 

  • Take complaints seriously, by conducting an impartial investigation, without preconception, both to ensure that any harassment is unearthed when it occurs and to limit employer liability if claims are ultimately unsupported; and

 

  • Stop harassment promptly and effectively by taking appropriate actions, up to and including termination of the harasser’s employment.

Additionally, employers should give careful thought to whether or not they investigate a sexual harassment or discrimination complaint internally (by Human Resources or in house counsel), or externally (by an outside party, which is usually an attorney who focuses in these types of investigations).

Also, employers should strictly follow their anti-discrimination/anti-harassment procedures — in all instances, regardless of the alleged harasser’s rank, prestige or money-generating value to the business enterprise.

What the New Massachusetts Equal Pay Act Will Do to Address the Wage Gap, What It Means for Women, and How Women Can Use This Law in Their Favor

Posted on: March 30th, 2018 by admin

 

 

At First Glance

On July 23, 2016, the Massachusetts Legislature passed the Act to Establish Pay Equity (the “Equal Pay Act”), M.G.L. c.149, Section 105A, which is to take effect on July 1, 2018..

While the terms “equal” and “pay equity” come up frequently in discussions of the Equal Pay Act, the new law will not mandate that wages between women and their male coworkers be equal. However, it will increase transparency concerning wages, and make remedies available to women who are paid less than their male coworkers for “comparable work.”

The Equal Pay Act forces employers to evaluate their pay practices to ensure there is no discrimination in wages or salary on the basis of gender alone.  Further, the law provides employees with the freedom to discuss wages and salary amongst themselves, giving female employees more access to information about how their pay rates compare with those of male employees doing “comparable work.”

What is “Comparable Work”?

Employees who do “comparable work” are not simply employees with identical job titles or job descriptions.  Under the Equal Pay Act, two employees are said to perform “comparable work” if their jobs “require[s] substantially similar skill, effort and responsibility and [are] performed under similar working conditions.”

What Employers CANNOT Do under the Equal Pay Act

The Equal Pay Act states:  “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The Act also makes clear that if an employer is violating the Equal Pay Act by, for instance, paying female employees $20 per hour and male employees $22 per hour for comparable work, the employer may not lower everyone’s wages to $19 per hour just to become compliant with the law.

What Employers CAN Do under the Equal Pay Act

There are still six instances in which employers can legally pay different wages and/or salaries to people doing comparable work. Employers are NOT considered to be in violation of the Equal Pay Act if differences in pay are based on:

  1. Seniority with the employer, as long as seniority is not reduced by any time an employee spends on leave for a pregnancy-related condition or on parental, family or medical leave;
  2. A merit system;
  3. Certain productivity benchmarks;
  4. Differences in the geographic locations where the jobs are performed;
  5. Differences in employees’ education, training, or experience, if “reasonably related to the particular job in question”; or
  6. Differences in regularly required, necessary travel.

The Impact of the Equal Pay Act: Before the Job and on the Job

Before you get a job, an employer cannot request your wage or salary history from you or from your current or former employer, nor can an employer require that your prior wage or salary history meet certain criteria. But if you volunteer such information to an employer that is considering hiring you, the employer may:

  1. Confirm your prior wages, or permit you to confirm prior wages or salary; or
  2. Seek or confirm your wage or salary history after an offer of employment with compensation has been negotiated and made to you, the prospective employee.

Once you start work and are on the job, an employer cannot require that, to keep your job, you refrain from asking other employees about their wages or from sharing information about your own wages.

Importantly, an employer cannot fire or otherwise retaliate against you if you challenge anything the employer does that is in violation of the Equal Pay Act; mention an intention to complain about such conduct; participate in any investigation or proceeding concerning a violation of the Equal Pay Act; disclose your own wages or salary; or discuss other employees’ wages or salaries with them.

What Do You Do If Your Employer Is Violating the Equal Pay Act?

You may take legal action against your employer for any violation of the Equal Pay Act. Such an action must be taken within three years after the date of the alleged violation.

What Are the Possible Results of Taking Legal Action Against Your Employer for an Equal Pay Act Violation?

If your employer is found to have violated the Equal Pay Act, the employer may be required to compensate you for unpaid wages, plus an equal amount of liquidated damages (an amount of damages that is calculable by the Court). In addition to any judgment obtained, you would be entitled to reasonable attorneys’ fees and costs in connection with your action, to be paid by the employer.

Employment Agreements and Lack of Intent to Discriminate are NOT Defenses.

If you are a female employee receiving less pay than a male colleague for comparable work (and none of the exceptions described above apply), this is a violation of the Equal Pay Act even if your employer insists it didn’t mean to discriminate; whether the employer meant to or not is irrelevant under the law. Furthermore, even if you signed a contract when you were hired agreeing to a wage that was less than what the Act legally entitled you to, your employer cannot use the agreement as a way to avoid legal responsibility for the violation. Similarly, if you were paid less at a previous job than the Equal Pay Act now entitles you to, this cannot be used by your current employer as a justification for illegally underpaying you.

An Employer’s Line of Defense: The “Self-Evaluation”

An employer who is found to have violated the Equal Pay Act has a potentially valid defense if it can show (a) that it has conducted a “Self Evaluation” of its own pay practices within three years of the violation, and (b) that it has made “reasonable progress… towards eliminating the wage differentials based on gender for comparable work in accordance with that evaluation.” While the Attorney General may, in the future, establish specific requirements for the detail and scope of an employer’s Self Evaluation, there are no such requirements in the current version of the Equal Pay Act. It is up to the judge or other arbiter evaluating a case to determine whether the employer’s evaluation was sufficient.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

READ BEFORE YOU SIGN: DAVID E. BELFORT, QUOTED ON FIDUCIARY DUTY CLAIM INVOLVING AN ALLEGED ILLICIT TRANSFER OF SHARES

Posted on: January 3rd, 2018 by admin

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We are pleased to announce that Bennett and Belfort, P.C. managing partner, David E. Belfort, was quoted in the December 21, 2017 issue of Massachusetts Lawyers Weekly in a cover page article entitled, “Breach-of-fiduciary claim vs. accountant allowed.” http://masslawyersweekly.com/2017/12/21/breach-of-fiduciary-duty-claim-vs-accountant-allowed/. The article discusses a Suffolk Superior Court decision coming out of the Business Litigation Session authored by Hon. Judge Leibensperger on a Motion To Dismiss.  The Court held that a lawsuit can proceed for breach of fiduciary duty where an accountant allegedly obtained an equity interest in the investment fund he managed through written instruments he submitted to the plaintiffs (his bosses) without fully disclosing that the documents transferred equity to the Defendant.  Interestingly, this purported ownership transfer took place just a short time before the Defendant left the company’s employ, and the transfer documents were prepared by a junior level attorney at a law firm that represented the company.

Attorney Belfort addressed the evidentiary challenges which remained for the plaintiff as the case continues. “Fiduciary duty claims still require that you have actual evidence of malfeasance in some way or a material omission,” Attorney Belfort said. “In this case, if they are able to prove that the defendant deliberately misled them or concealed key information, then they have a chance. If they can’t, they’re going to have a tough time getting through summary judgment.”   The Plaintiffs admit they signed two documents relative to the equity transfer at issue but say they did not fully read the documents.  Plaintiffs claim that the Defendant, as a senior executive at the firm, had a fiduciary duty beyond presenting the documents to them for signature, including to inform them about the equity transfer it contained, which was done – they argue – without Plaintiffs’ knowledge and approval.  This, they claim, is sufficient to show a breach of fiduciary duty under Massachusetts law and at this early stage according to Judge Leibensperger – they were correct.

Partner Eric LeBlanc Speaks on the Interactive Process at MCLE Annual Employment Law Conference

Posted on: January 2nd, 2018 by admin

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The MCLE (Massachusetts Continuing Legal Education) New England held its annual Employment Law Conference on December 8, 2017, and Bennett & Belfort partner Eric R. LeBlanc was one of two attorneys selected to lecture and moderate discussion in a breakout session entitled “The Interactive Process: Everything You Need to Know and Understand to Advise Your Clients and Litigate Your Case.”  If an employee advises his or her employer of a physical or mental impairment that affects the employee’s ability to perform the job effectively, the employer must work with the employee to attempt to discern a “reasonable accommodation” that might enable adequate job performance. Massachusetts and federal law do not formally define this “interactive process,” nor is a reasonable accommodation possible in every instance; but once an employee has disclosed a disability and requested reasonable accommodation, significant harm can result from either party’s failure to engage in a good faith interactive process.  At the December 8th breakout session, Attorney LeBlanc joined Attorney Katherine Rigby of Ogletree, Deakins, Nash Smoak & Stewart in educating attendees about the specific actions required of employers and employees in the interactive process; common pitfalls to avoid; potential claims, liability and defenses for clients on either side of process; and developing trends in the relevant case law.  Attorney LeBlanc and Attorney Rigby were able to share their experience and expertise with a wide audience because the session was held via webcast as well as in person at MCLE’s conference center.

BENNETT AND BELFORT, P.C. PARTNER, TODD BENNETT, QUOTED IN THE BOSTON BUSINESS JOURNAL

Posted on: December 8th, 2017 by admin


tb-124x150Bennett and Belfort, P.C. partner, Todd Bennett, was quoted in the November 29, 2017 Boston Business Journal article entitled, “Biotech’s #MeToo Moment.” https://www.bizjournals.com/boston/news/2017/11/29/biotech-s-metoo-moment-lawyers-say-bias-harassment.html.  The article is about the recent uptick in claims of sexual harassment and gender discrimination being brought by female employees in the biotech industry.  Attorney Bennett stated that in his experience, there remains an “inaccurate stereotype among leadership, which is predominantly male, that women lack the scientific acumen to either perform the necessary functions of their jobs or to be promoted to a leadership role,” which is oftentimes used as a “pretext for the failure to promote or hire.”

In light of the current publicity concerning widespread sexual harassment by prominent and powerful figures in the entertainment and media industries, we believe that more and more women are realizing not only that it is permissible and personally empowering to  speak out when subjected to sexual harassment and discrimination at their jobs, but that these complaints may very well give others the courage to come forward and may prevent future employees from suffering the severe emotional distress caused by such unacceptable and unlawful behavior.

MASSACHUSETTS CONSUMER PROTECTION LAW

Posted on: September 29th, 2017 by admin

Someone pays a contractor, but the work is not done, or the work violates the building code.  A vendor has “hidden fees,” or falsely states in its advertising that it has adequate insurance to cover damage to property.  These are examples of “unfair or deceptive acts or practices” from which a consumer can seek relief under Massachusetts General Laws, Chapter 93A.  But it is important to take certain steps to properly assert your rights.  M.G.L. c. 93A, sec. 2.

The first step in a 93A claim is the demand letter.  A wronged consumer must notify the offending business of his or her claim in writing, and allow the business 30 days to respond with a “reasonable offer of settlement.”  The letter must clearly identify the consumer making the claim, reasonably describe the complained of unfair or deceptive act or practice, and state the injuries suffered by the claimant because of the unfair or deceptive act or practice.  Moreover, rulings of the Massachusetts Supreme Judicial Court suggest that a demand letter is not adequate under Chapter 93A unless it defines the relief—financial compensation and/or specific actions—which the consumer seeks in order to settle the claim.

The timing of the demand letter is also crucial.  If a consumer wishes to file a lawsuit against an offending business, the demand letter must be mailed or delivered at least 30 days before the lawsuit is filed; failure to do so is grounds for a court to dismiss the lawsuit.  Chery v. Metro. Prop. & Cas. Ins. Co.  (If a 93A claim is being raised as part of a counterclaim to an existing lawsuit, if a 93A claim is a “business to business” claim, or if the offending business has no location or assets in Massachusetts, a demand letter is not required.)  Additionally, a claim for violating M.G.L. Chapter 93A must generally be filed within four years of the time the unfair or deceptive business practice occurred.  M.G.L. c. 260, sec. 5A.

After receipt of the demand letter, the business has 30 days to respond to the consumer’s settlement demand in writing with a “reasonable offer of settlement.”  If the consumer does not accept the offer, or if an agreement cannot be negotiated and the consumer files a lawsuit, there are risks that both sides must face.  The consumer, if successful in court, may recover up to three times the actual damages suffered, and the court may also compel the business to pay the consumer’s attorney’s fees.  M.G.L. c. 93A, sec. 9.  However, a court may find that the business’s original settlement offer was reasonable and award the consumer only that amount—or the court may find that the consumer’s complaint is simply not supported by the facts.  The court must first determine whether the business’s conduct was, in fact, unfair or deceptive; and if the answer is yes, then the crucial questions to be decided are whether the conduct was willful, whether the business’s refusal to grant the consumer his or her original demand was in bad faith, and whether the business was aware of its violation of the law.

Please note that a violation of Chapter 93A does not cover conduct which is merely negligent in nature or which is simply in breach of a contract.  Also, in addition to consumer-related claims, Chapter 93A covers unfair competition and certain types of “business to business” claims, where a party is alleged to have committed unfair or deceptive acts or practices.

Bennett & Belfort P.C. frequently represents both individuals and businesses in both bringing and defending alleged violations of M.G.L. c.93A, Sections 2 and 11.