1. Hot Topics in Employment Law
Robert A. Fisher, Esq.
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2. Hiring and Firing Tips
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3. 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
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4. 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
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5. Marijuana in the Workplace
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6. 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, (last visited July 17, 2017).
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7. 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.
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8. 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.”
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9. 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)
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10. 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 (March 10, 2017).
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11. 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.
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12. 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.
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13. 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
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14. Massachusetts Non-Compete Reform
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15. 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
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16. 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
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17. Non-Compete Reform Signed into law by the Governor in August
Took effect yesterday
Significant change to common law rules
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18. 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.
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19. 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
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20. 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.
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21. 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.
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22. 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.”
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23. 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.
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24. 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.
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25. 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.
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26. 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?
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27. 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”
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28. Massachusetts Pregnant Workers Fairness Act
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29. 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
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30. 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
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31. 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
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32. 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)
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33. 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
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34. 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
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35. 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
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36. 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
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37. 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
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38. 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
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39. Questions? Robert A. Fisher rfisher@seyfarth.com 617-946-4996
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