Legislation

On January 5, 2023, the Federal Trade Commission (FTC) announced a proposed regulation that would completely prohibit non-competition agreements in the workplace.  A non-compete clause is a contractual term between an employer and worker that prevents the worker from seeking or accepting certain employment, or operating certain businesses, after the worker’s employment ends.  Previously, the FTC issued a statement in November 2022 in which it declared its intention to exercise authority under Section 5 of the FTC Act which would be in line with President Biden’s Executive Order from July 2021 urging the FTC to promulgate new rules governing non-competes.  If this were to happen, the consequences for both employers and employees would be significant.

With certain exceptions, the proposed rule would make it illegal to (1) enter into or attempt to enter into a noncompete with a worker, (2) maintain a noncompete with a worker, and (3) represent to a worker that the worker is subject to a noncompete agreement.
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If an employer does not provide an employee leaving the company with his or her wage payments on time but quickly corrects the problem, that is the end of the issue, correct?  Not so fast, the Massachusetts Supreme Judicial Court recently held.  Even if the employer fails to make timely wage payments to a departing employee by mistake, the employer will be on the hook for automatic treble damages.  The SJC’s recent ruling and clarification of the Massachusetts Wage Act is essential information for all employers in Massachusetts to be fully informed about before failure to comply with the Act becomes a very costly mistake.

Massachusetts General Law c.149 § 148 states that "any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of his discharge.
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On October 6, 2021, Charlie Braun was killed when he was struck by a car while riding his bicycle in Northampton, Massachusetts.  The driver that hit and killed Charlie Braun is facing charges of negligent motor vehicle homicide, failing to stop for a stop sign, and FaceTiming while driving.  As a result, there has been a new push to further reduce distracted driving in Massachusetts and it involves strengthening the state's current hands-free driving law and closing an existing loophole regarding broadcasting video content while driving.

The state's hands-free law, which went into effect in February 2020, already prohibits drivers from holding their phones while operating their vehicles, but, in a bit of a loophole, it does not prohibit operates from filming while driving.  More specifically, while the Massachusetts law bans drivers from viewing video displayed on a mobile electronic device, it does not ban drivers from recording or broadcasting video of themselves while driving, using apps like FaceTime or Zoom.
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First and foremost, Happy Thanksgiving! 

An interesting employment law tidbit is that both Massachusetts and Rhode Island stand outside the norm for the country by requiring private companies to give workers paid time off for national holidays.  You may have recently heard that certain retailers have announced that its stores will be closed on Thanksgiving for the future.  While part of that decision is certainly as a good will gesture to its employees, it is also a savvy business decision as retail employers cannot force its employees to work on legal holidays and, if they do, retail employers often have to provide “premium pay” which would cost the company an increased expense if they chose to be open. 

The Commonwealth of Massachusetts recognizes eleven holidays as a legal holiday (Suffolk County includes a few extra such as Evacuation Day and Bunker Hill Day).  Each holiday has its own rules and restrictions set on what industries are allowed to be open, what times they may be open, and how much they need to pay their employees.
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Last week, a Federal Judge in Boston denied the motion of two hundred and twenty-nine Massachusetts General Brigham employees who sought an injunction to prevent the company from enforcing its vaccine mandate.  Prior to that, the Court ruled against a group of Massachusetts correction officers who similarly asked for an injunction on the vaccination mandate.  Putting aside the hot button question as to whether or not employers should be able to mandate vaccinations for its employees (of which there are strong arguments both for and against), the reality is that a large number of employees in Massachusetts are going to be facing a decision that they do not want to have to make: get the vaccine or lose their job.

Massachusetts General Brigham employees approximately 77,000 people across its hospital network, so the two hundred and twenty-nine employees that joined in the Court case to try and block the mandate represents a very small fraction of its total workforce.  In fact, Massachusetts General Brigham estimates that over ninety-five percent of its employee base has been at least partially vaccinated.
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Massachusetts wage and hours laws provide employers with guidance as to how, when, and how much workers must be paid.  One common issue that arises is when and what employees that resign or are terminated need to be paid.  Generally speaking, an employee is voluntarily quits or resigns may be paid on the next regular pay date after his or her last day of work but an employee who is involuntarily terminated must be paid in full on the day of discharge.  Failing to adhere to these rules can have significant consequences.

Massachusetts General Laws chapter 149 § 148 states “any employee discharged from such employment shall be paid in full on the day of his discharge.
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When Governor Charlie Baker prohibited restaurants from letting customers eat or drink indoors and ordered the temporary closure of “non-essential” businesses via Order No. 13 on March 23, 2020, it was known that there would be extensive implications of that decision for many businesses.  Some businesses have shuttered completely while others have successfully launched profitable curbside or take out businesses.  One issue that was not addressed in March of 2020 was what are the rights and responsibilities for landlords and tenants of commercial leases.  It took nearly a year, but the first major decision surrounding the issue was made on February 8, 2021.
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One of the most important parts of the discovery process in any claim or civil litigation are the depositions.  In a personal injury claim, the injured party is almost always deposed and the defendant is often deposed as well (unless liability is not disputed).  In an employment law claim, depositions can take place not only of the people directly involved in the claim, but often all of the employees of the company.  Any litigator will tell you the importance of depositions to a legal claim.  They can make or break a lawsuit, sometimes only with one wrong answer.
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As I write this, we are three months and one day into the declared Coronavirus Pandemic, where many of us have spent our time at home practicing social distancing. We have all watched as the confirmed cases and casualties have climbed with Massachusetts a hotbed of activity. For many this has been an unprecedented experience, and, in some ways, it has brought us all metaphorically closer as we keep our minimum six feet apart. With daily and weekly updates, a plethora of broadcasts and articles, we have waited anxiously for this moment and as of May 15, 2020, the Baker-Polito Administration have unveiled their four-phase plan to reopen the Commonwealth of Massachusetts. Any dates that have been projected are currently tentative as the Commonwealth begins to take into account the probable cases going back to March 1^st when the declaration was made and continues to reevaluate based on data trends.
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Massachusetts is a an at-will employment state, meaning that employees can typically be fired at any time for any reason.  However, there are several important exceptions to this general rule which are important for employees who have been let go (or are in fear of being terminated from their employment) to know about.

First, there are certain protected activities under the Common Law that an employee cannot be fired because he or she engaged in said activity.  These activities including: (1) asserting a legal right (such as taking vacation time or filing a workers' compensation action), (2) fulfilling a legal duty (such as attending jury duty), (3) reporting criminal wrongdoing, (4) refusing to commit illegal acts (such as embezzling or committing perjury), and (5) cooperating in a criminal investigation of the employer or the employee's superiors.  Generally speaking, if an employee is engaged in these protected activities the employer cannot terminate him or her for doing so.
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If you have spent anytime driving on the highways of Rhode Island recently, you will have noticed the signs that on June 1, 2018, drivers in Rhode Island will need to put their phones down.  If not, drivers will face a one hundred dollar fine - each time they are caught.

Rhode Island state police have suggested that the dangers of distracted driving are the same as the dangers of drunk driving.  That is why beginning on June 1st, the police will be looking to pull over anyone holding their phone while they are talking and driving.  Drivers will be allowed to use the phone only with a hands-free devices, like a mount inside the car or a Bluetooth.

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