What the Act Covers and What It Does Not

The new act focuses on classic non-compete contracts. Yet, it excludes several common restrictions. For example, it does not apply to:

• non‑solicitation agreements
• confidentiality agreements
• NDAs
• invention assignment agreements

Additionally, it does not apply when a business is sold. Especially if the restricted person owns part of that business. Moreover, the act excludes owners who receive major payment from the sale.

A Key Court Decision That Defined Anti-Raiding Rules

Later, on January 14, 2020, the top state court evaluated anti-raiding terms again. The case involved a dealership group. The court reviewed a restriction that blocked a former exec from hiring staff for six months.

The court outlined a clear test. Namely, a restriction is reasonable when it:

1. Protects a real business interest
2. Has a fair time limit
3. Serves public interest
4. Uses limited space rules

Importantly, the court treated this as part of a business sale. Because of that, it applied lighter review. As a result, the court enforced the six-month rule.

Why Business Sale Agreements Face Less Criticism

Business sale restrictions face lower scrutiny than employee contracts. Still, the law checks if the rule protects real interests. It checks if the limit is fair. It also checks if the public is protected.

In contrast, employers face stricter review when restricting workers. But, reviewing owner restrictions is different. Because, courts expect owners to negotiate with more balance. Therefore, owner agreements are judged less harshly.

Anti-Raiding Agreements Today

Anti-raiding clauses can be enforced after a business sale. Provided that, they protect real interests. Likewise, the time must stay short. The space must stay reasonable. The public must stay protected.

In simple terms, the law allows short anti-raiding limits for business owners. It allows them if a business is sold. It allows them if the rule stays fair. So, ultimately, the court prefers balance, not punishment.

What This Means for Employees and Owners

Employees should learn contract impact early. Similarly, owners must check long-term career effects. Restrictions can block hiring. They can also block future business plans. That is why, legal advice matters before signing anything.

How Gordon Law Group, LLP Can Help

Gordon Law Group, LLP supports workers and business owners. Specifically, the firm reviews restrictive contracts. It explains future risks. It protects career rights. It also protects fair competition. Boston MA employment lawyer.

Final Reminder

Contact a lawyer before signing restrictions. Because, unclear contracts can damage careers. They can also limit business growth. Therefore, you should act early. You should ask questions early. You should protect your future early.

BOSTON, Nov. 14, 2020 — The 2021 edition of the “U.S. News – Best Lawyers®” ‘Best Law Firms’ list again recognized the Gordon Law Group, and two of its attorneys – Philip Gordon and Elizabeth Rodgers – to this prestigious honor.

This year, the firm was ranked in Tier 1 (the highest ranking) in the Boston metropolitan area for Employment Law – Individuals.  According to a press release from “U.S. News – Best Lawyers®,” firms that are included in the list “are recognized for professional excellence with consistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”

For the 2020 “Best Lawyers in America” list, two Gordon Law Group attorneys were recognized by their peers for their excellence and dedication to their work: Philip Gordon and Elizabeth Rodgers.

Philip Gordon, Managing Partner of the Gordon Law Group, said, “We work hard to try to consistently deliver excellent results for our clients, so to be recognized in this way year after year is very rewarding.”

*For more information about the standards of inclusion, please visit https://bestlawfirms.usnews.com/

On December 2, 2019, the First Circuit Court of Appeals ruled that au pairs, like any other domestic worker, are protected by the Massachusetts Wage and Hour Laws.  In Capron v. Office of the AG of Mass., 944 F.3d 9, 12-13 (1st Cir. 2019), the Court was asked by Cultural Care, a DOS-approved private placement agency based in Massachusetts, to issue a ruling that the “Au Pair Program” preempts Massachusetts from requiring host families to comply with its wage and hour laws.  The Court, however, declined to do so ruling that while the relevant DOS regulations set a federal regulatory floor on au pair participant wage and hour protections, they do not set a ceiling that limits the wage and hour protections that states may provide to au pair participants.  The Court held that from the text of the DOS regulations applicable to the Au Pair Program, “all one can tell….[is] the Au Pair Program operates parallel to, rather than in place of, state employment laws that concern wages and hours and that protect domestic workers generally, at least with respect to the obligations that such state law wage and hour measures impose on host families to do more than what the FLSA itself requires.”

If you are a participant in the Au Pair Program and you believe that you are not being paid in compliance with the Massachusetts Wage and Hour Laws, please contact us for legal advice. Au pairs areprotected.

au pairs areprotected

Overtime pay for inside sales work. On May 8, 2019, the Massachusetts Supreme Judicial Court (“SJC”) issued guidance for all employees in Massachusetts who are inside salespersons and receive payment on a 100% commission basis.  In Sullivan v. Sleepy’s. LLC., 482 Mass. 227 (2019), the Court was asked to answer 3 questions.

First, the Court was asked if an employee’s commissions and draws may be credited against overtime wages.   The employer argued that they complied with the requirements of the Overtime Statute because they provided their employees with draws and commissions that equaled or exceeded 1 * the minimum wage * the number of hours worked up to 40, plus 1.5 * the minimum wage * the numbers worked in excess of 40 hours.  The SJC, however, held that such retroactive allocation is impermissible and that an additional overtime payment was owed.  They reached this conclusion because, “[i]f employers could undertake such retroactive allocation of payments, they would similarly lack incentive to comply with the wage and overtime statutes in the first place.” Overtime pay for inside sales work.

Second, the Court was asked to determine what the regular rate of pay was for purposes of computing any additional overtime payments.  The Court held that “the overtime rate is…one and one-half times the minimum wage for one hundred percent commission employees.”

Finally, the Court was asked if these same employees would be entitled to a separate payment for Sunday pay.  The Sunday Pay Statute provides that “[a]ny store or shop…which employs more than a total of seven persons, including the proprietor…shall compensate all employees engaged in the work performed on Sunday…at a rate not less than one and one-half times the employee’s regular rate.”  Attributing a similar purpose to the Overtime Statute and the Sunday Pay Statute, the SJC held that a 100% commissioned inside salesperson should receive payment for hours worked on a Sunday at a rate of one and one half times the minimum wage.

If you are inside salesperson who was paid on a 100% commission basis and worked more than 40 hours a week or on Sundays, you may be entitled to additional compensation.   Please contact us for legal advice. Overtime pay for inside sales work.

An interesting question arose recently. Is an employee who settles a case under the Wage Act still entitled to an award of attorney’s fees?

On February 19, 2019,  the Massachusetts Supreme Judicial Court (“SJC”) ruled so, that employees who settle cases brought pursuant to the Massachusetts Wage Act (“Wage Act”) are indeed entitled to recover their attorneys’ fees, unless those are made part of the settlement.

In Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488 (2019), the Plaintiffs filed suit against the Defendant, alleging that the Defendant failed to pay them approximately $28,000 in unpaid wages. On the eve of trial, the parties participated in a mediation that resulted in an agreement to settle the case for $20,500. Importantly, however, the parties reserved the issue of the Plaintiffs’ entitlement to attorneys’ fees for resolution by the Court. The Defendants argued that the Plaintiffs did not prevail, as required by the Wage Act, because they did not obtain judicial approval of the private settlement. The Plaintiffs, however, argued that the Court must apply the “catalyst test,”  whereby a Plaintiff may qualify as a prevailing party under the Wage Act if the “lawsuit is a necessary and important factor in causing the defendant to grant a material portion of the requested relief, a settlement agreement.” Employees who settle cases

The SJC held that the catalyst test applies in the context of determining prevailing parties under the Wage Act, because it promotes the two major purposes of a statutory fee-shifting provision: 1) to act as a powerful disincentive against unlawful conduct; and 2) to provide representation in cases that otherwise would not be financially prudent for an attorney to take on. “The catalyst test thus recognizes that successful litigation may be reflected in settlements as well as court rulings, as settlements are often ‘the products of pressure exerted by [a] lawsuit.’”

As a result, the SJC affirmed that the Plaintiffs were entitled to recover approximately $16,000 in attorneys fees and $1,000 in costs, in addition to the amount they received from their settlement. While attorneys’ fees are often negotiated privately during a settlement, Ferman provides a roadmap for seeking judicial intervention if the amount owed to the attorneys is the only impediment to settlement.

If you’re finding it hard to get paid your wages, let us know. We may be able to help.

While this law is set out in its entirety at M.G.L. c. 149, § 24L, the following are a few provisions of note for employees:

• If the agreement is entered into prior to the start of employment, it must be in writing, signed by both parties, and provided to the employee at the formal offer of employment or 10 business days prior to the start of employment;
• If the agreement is entered into during employment, it must be supported by fair and reasonable consideration other than continued employment;
• The agreement must not be broader than necessary to protect the employer’s trade secrets, confidential information or goodwill;
• The restricted period must not exceed 12 months from the end of employment in most cases;
• The agreement must be reasonable in geographic reach, or limited to the geographical area where the employee provided services in the last 2 years of employment;
• The agreement must be reasonable in scope, or limited to the types of services provided by the employee in the last 2 years of employment;
• The agreement must be supported by a garden leave clause in most cases, where the employee receives payment of at least 50% of his/her highest annualized base salary paid withing the last 2 years of employment;
• There can be no agreements with non-exempt employees, under-graduate/graduate students in internships, employees that were terminated without cause or laid off, and employees under the age of 18.
• The agreement can not contain a choice of law provision that would avoid the requirements set forth by the new law.

Before signing any agreement, it is important to understand the effects that agreement may have on your future ability to obtain employment. Contact us if you have any questions.

It is well established law that the purpose of the Massachusetts Wage Act (“Wage Act”) is to prevent the unreasonable detention of wages by the employers in the Commonwealth.  For this reason, any purported waiver of the rights afforded under the Wage Act are strongly disfavored.  Moreover, to protect against the possibility “that the strong protections afforded by the Wage Act could be unknowingly frittered away under the cover of a general release in an employer-employee termination agreement,” the Supreme Judicial Court held that such an agreement “will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act only if [it] is stated in clear and unmistakable terms.”   “In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving.” Union workers may lose.

On September 5, 2018, the Massachusetts Appeals Court was asked to consider the concept of waiver in the context of collective bargaining agreements (”CBAs”).  In Parris v. Sheriff of Suffolk Cnty., 93 Mass. App. Ct. 864 (2018), the Court was asked to determine whether a provision in the CBAs between the sheriff and the unions representing his employees was a valid request in writing by the employees to be paid in a different manner than that set forth in the Wage Act.  Additionally, the Court was asked to determine whether the CBAs in question effectively waived the employees’ rights under the Wage Act.

The Court held that while the unions had the authority, through collective bargaining, to request that payment of overtime wages be made under a schedule that differs from what is provided in the Wage Act, nonetheless the CBAs at issue were not effective to waive the employees’ rights under the Wage Act.

Pursuant to G. L. c. 150E, unions are the “exclusive representative of all the employees … for the purpose of collective bargaining,”  and “are empowered to act on the employees’ behalf with respect to wages, hours…and any other terms and conditions of employment.’”   Accordingly, the unions possess the right to speak exclusively for all the employees on mandatory subjects of collective bargaining.   Thus, to harmonize the Wage Act with c. 150E, the Court held “that the unions may act on behalf of their members to exercise the employees’ election under the Wage Act to alter the timing of the overtime payments.” Union workers may lose.

Despite the fact that unions have the authority to waive an employee’s rights under the Wage Act, the Court held that the CBAs at issue did not contain the requisite waivers.  This is because the “Commonwealth’s fundamental public policy ‘to provide strong statutory protection for employees and their right to wages, would require, at the minimum, a clear and unmistakable waiver.”   The Court determined that the “CBAs here do not meet this high standard.”

Thus, the Court has made it clear that any attempt on behalf of an employee to skirt the statutory protections of the Wage Act will be subject to strict scrutiny.  If you are an employee who has been told that you waived your rights under the Wage Act, either through a private agreement or a CBA, please contact us for legal advice.

If you’re working in a union, while you may be getting better treatment on the one hand, you may be losing valuable rights on the other.

Check back here for more updates. Or follow us on Twitter: @GordonLawGrp

And, of course, if you are asked to take a lie detector test, give us a call before you do.