Hot Topics in Employment Law Robert A. Fisher, Esq. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Hiring and Firing Tips ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Hiring Tips If in Massachusetts, don’t ask about applicant’s salary history May require amending your applications Even if the applicant volunteers information, may have limited value Does your application comply with “Ban the Box” rules? If you conduct background checks, do you: maintain a written policy comply with both the federal Fair Credit Reporting Act state laws regarding criminal background checks Ask about agreements with prior employers Broaden your search pools ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Firing Tips Document, document, document . . . AND come to terms with the exisiting documents Do an exit interview Don’t pull punches about the reasons for the termination Remind employee of contractual obligations Have a final paycheck prepared, including unused and accrued vacation time Think about how you are going to communicate to employees and third parties ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Marijuana in the Workplace ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Laws That Authorize MEDICAL Marijuana Use¹ Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Guam Hawaii Illinois   Maine Maryland Massachusetts Michigan Minnesota Montana Nevada New Hampshire New Jersey New Mexico New York North Dakota 25. Ohio Oregon Pennsylvania Puerto Rico Rhode Island Vermont Washington West Virginia ¹ See National Conference of State Legislators, http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx#3 (last visited July 17, 2017). ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

What is a Qualifying Patient in Mass? Qualifying patient is one diagnosed by a licensed physician as having a debilitating medical condition.  “Debilitating medical conditions” include cancer, HIV, MS, Crohns, and “other conditions as determined in writing by a qualifying patient’s physician.” 60-day supply. ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Limitations of Medical Marijuana Law “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment . . .” (emphasis added). “Nothing in this law requires the violation of federal law or purports to give immunity under federal law.” ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Barbuto v. Advantage Sales and Marketing Use of medical marijuana “by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” “[P]atients shall not be denied ‘any right or privilege’ on the basis of their medical marijuana use.” An individual who uses marijuana at the recommendation of a licensed physician is a “qualified” handicapped person entitled to reasonable accommodation. Does not require "any accommodation of any on-site medical use of marijuana in any place of employment." St. 2012, c. 369, § 7 (D) (emphasis added) ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Laws That Authorize RECREATIONAL Marijuana Use² Alaska California Colorado District of Columbia Maine Massachusetts Nevada Oregon Washington ² See Congressional Research Service, The Medical Marijuana Policy Gap and the path Forward 7-5700 (March 10, 2017). ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Substance of Recreational Marijuana Law in Mass Legalizes possession and use: 1 oz per person; 10 oz per home; 6 plants per person at home; and 12 plants per household.   Prohibited use in public places or anywhere smoking is prohibited. ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Limitations of Recreational Marijuana Law “Employment. 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.”  (emphasis added). No statement expressly prohibiting adverse employment action. ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Takeaways A blanket policy of refusing to hire/employ individuals who use marijuana for medical purposes is risky in Mass. Employers must at least engage in the interactive process. Recreational marijuana use does not raise the same issues ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Massachusetts Non-Compete Reform ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Types of Agreements Non-competition: restricts ability of employees to engage in competitive activities Customer non-solicitation: restricts ability of employees to solicit customers, such as on behalf of a new employer Employee non-solicitation: restricts ability of employees to solicit co-workers to leave their employment or obtain employment with a third party Confidentiality/ Non-disclosure: restricts ability of employees to disclose proprietary and confidential business information belonging to employer ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

The Old Rules With some exceptions, law on restrictive covenants was judge- made Focus was on reasonableness of the restriction necessary to further a legitimate business interest geographic scope temporal scope scope of the restricted conduct Test applied equally to non-competes and non-solicits Judges had authority to blue-pencil overly broad agreements New employment and continuing employment sufficient consideration ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Non-Compete Reform Signed into law by the Governor in August Took effect yesterday Significant change to common law rules ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Who is Covered by the Law? Employees and independent contractors who enter into new non-compete agreements on or after October 1, 2018. Exclusions: employees classified as nonexempt under the Fair Labor Standards Act; undergraduate and graduate students who are partaking in an internship or short-term employment relationship, whether paid or unpaid, while enrolled full time in school; employees who have been terminated without cause or laid off; and employees who are 18 years old or younger. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

What Is Covered by the Law? Non-compete agreements, including “forfeiture for competition” clauses Excluded: Employee non-solicits Customer, client, or vendor non-solicits Agreements in the context of the sale of a business (where the party restricted is “a significant owner of, or member or partner” in the business being sold) Agreements outside of the employment relationship (i.e., franchises) Forfeiture agreements NDAs and confidentiality agreements Separation agreements (if employee is expressly given 7 business days to rescind acceptance thereof) No re-hire agreements “Springing” Non-Competes ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

How Will the Law Affect Massachusetts Employers? General Requirements for New Employees Must be in writing and signed by both the employer and employee. Must expressly state that the employee has the right to consult with counsel prior to signing. Must be provided to the employee when a formal offer of employment is made or 10 business days before the commencement of the employee’s employment, whichever comes first. Must be reasonable in scope. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

How Will the Law Affect Massachusetts Employers? General Requirements for Existing Employees Must be supported by “fair and reasonable consideration independent from the continuation of employment.” Notice must be provided at least 10 business days before the effective date of the agreement. Must be in writing. Must be signed by both the employer and employee. Must expressly state that the employee has the right to consult with counsel prior to signing. Must be reasonable in scope. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Protectable Interests – Same as Before “Agreements must be no broader than necessary to protect one or more of the following legitimate business interests of the employer: (A) the employer’s trade secrets, as defined in section 1 of chapter 93L; (B) the employer’s confidential information that otherwise would not qualify as a trade secret; or (C) the employer’s goodwill; provided, however, that the agreement may be presumed necessary where the legitimate business interest cannot be adequately protected through an alternative restrictive covenant, including but not limited to a non-solicitation agreement, a non-disclosure agreement or a confidentiality agreement.” ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Permissible Scope – Time The stated restricted period within the agreement must not exceed one (1) year from the date of cessation of employment. However, if the employee has breached the employee’s fiduciary duty to the employer or the employee has unlawfully taken, physically or electronically, property belonging to the employer, the restricted period may be not more than 2 years from the date of cessation of employment. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Permissible Scope – Geography “Must be reasonable in geographic reach in relation to the interests protected.” However, a geographic reach that is limited to only the geographic areas in which the employee, during any time within the last 2 years of employment, provided services or had a material presence or influence shall be presumptively reasonable. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Permissible Scope – Proscribed Activities Must be reasonable in the scope of proscribed activities in relation to the interests protected. Same as common law However, a proscription on activities that protects a legitimate business interest and is limited to only the specific types of services provided by the employee at any time during the last 2 years of employment shall be presumptively reasonable. ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Consideration – An Overview Existing employees: Continued employment is no longer sufficient. Must provide “fair and reasonable consideration independent from the continuation of employment” New and existing employees: Garden Leave (50% of base salary); or “[O]ther mutually-agreed upon consideration” specified in the agreement. What does any of this mean? ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Takeaways Review your agreements to ensure compliance with the law Consider what consideration you are providing employees Consider using non-solicit agreements in lieu of pure non- competes Consider which employees are exempt versus non-exempt Think about what should be “cause” ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Massachusetts Pregnant Workers Fairness Act ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

State of the Law Pre-PWFA Chapter 151B: Prohibitions against disability discrimination protect employees with pregnancy-related disabilities Pregnancy and childbirth are sex-linked characteristics and thus an adverse action may be gender discrimination Parental Leave Act (M.G.L. c. 149, § 105D): Up to 8 weeks of leave for the birth or placement of a child Employee must have been employed full-time for at least three consecutive months ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

State of the Law Pre-PWFA FMLA: Up to 12 weeks of leave for the birth of a child, the employee’s own serious health condition, or the serious health condition of a son or daughter Employee must have 1250 hours of service and at least 12 months of employment Limited to employers with at least 50 employees at worksite FLSA: An employer is required to provide reasonable breaks for an employee to express breast milk a place (other than a bathroom) shielded from view and free from intrusion for such breaks Undue hardship exception for small employers ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

PWFA -- Overview Effective date is April 1, 2018 Expands Massachusetts anti-discrimination law (Chapter 151B) to cover a new protected class: Pregnancy and conditions related to pregnancy Includes lactation and the need to express breast milk Requires employers to provide a reasonable accommodation, unless an undue hardship Individuals can pursue PWFA discrimination claim like any other claim for discrimination under Chapter 151B ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

What is Prohibited? Discriminating against any employee because of pregnancy or a pregnancy-related condition Denying a reasonable accommodation (unless undue hardship) Taking an adverse action against an employee (including failing to reinstate to original or equivalent position) for using or requesting reasonable accommodation Denying employment opportunity because of need for reasonable accommodation Requiring employee to take leave rather than provide some other reasonable accommodation (unless undue hardship) Refusing to hire person capable of doing essential functions of job with reasonable accommodation because of pregnancy or pregnancy- related condition (unless undue hardship) ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

The Interactive Process Very similar to process relating to disability Employee must request an accommodation Request triggers obligation to engage in a timely, good faith and interactive process to determine effective, reasonable accommodation Employers must be willing to accommodate employees’ individual needs ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Reasonable Accommodations Statute lists examples of reasonable accommodations: More frequent or longer breaks (paid or unpaid) Time off to attend to a pregnancy complication or recover from childbirth (paid or unpaid) Acquisition or modification of equipment or seating A temporary transfer to less strenuous or less hazardous position Job restructuring Light duty Private, non-bathroom space for expressing breast milk Assistance with manual labor Modification of work schedule ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Documentation General rule is that an employer can request documentation from a health care professional Employer is prohibited from asking for documentation related requests for: More frequent bathroom, food or water breaks Seating Limits on lifting over 20 pounds Private non-bathroom space for expressing breast milk Can require documentation for an extension of accommodation ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Undue Hardship The employer bears the burden of proving an undue hardship Defined as an act “requiring significant difficulty or expense” based on the following factors: cost of the accommodation the employer’s financial resources the size of the employer based on number of employees the nature of the employer’s facilities the impact of the accommodation on operations ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Written Notice An employer will be required to provide written notice to employees about the statute To When All Employees By April 1, 2018 New Hires On or Before Start Date Employee Notifying Employer of Pregnancy or Pregnancy-Related Condition Within 10 Days of Employee’s Notice ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Takeaways Employees need not be disabled to be covered by the statute Pregnant employees who are not entitled to FMLA leave or parental leave may be entitled to leave as an accommodation An extension of a leave may be a reasonable accommodation An employee cannot be forced to go on leave when another accommodation is available First level managers need to know how to identify requests for accommodations ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Questions? Robert A. Fisher rfisher@seyfarth.com 617-946-4996 ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential