Whitney Law Group, LLC Blog

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Employees Can Still Be Fired for Legal Recreational Marijuna Use

As a recent Boston Globe article highlights, the impact of laws legalizing the use of recreational marijuana on the workplace remain unsettled. The Globe article discusses a woman who regularly -- and legally -- used marijuana outside of work, but tested positive for marijuana after she suffered a fall at work. 

It is important to remember that marijuana is still illegal under U.S. law, so many employers still prohibit the use, possession, or working under the influence of marijuana in their company policies.  A complicating factor is that marijuana stays in the user's bloodstream much longer than alcohol, sometimes for several days or longer depending on the user's amount and frequency of use.  This creates problems with regard to testing and policy enforcement because the employee could have THC in their bloodstream but not be impaired or "high."  

This also puts companies in a tough position with regard to their testing policies, as they may be at risk of losing good employees to other companies that don't test for marijuana.  This is an especially significant quandary in this very tight job market.

Until legislators or the courts provide more clarity, employees who wish to use marijuana outside of work should remain cognizant of their employer's policies on drug use. Employees should understand whether the employers conduct random testing or not, and employees who work in safety-specific jobs (such as forklift operators, air traffic controllers, etc.) need to appreciate that they are most likely to be subject to testing.

Finally, it is important to note that the Massachusetts Supreme Judicial Court has already ruled that employees who use medical marijuana cannot be automatically fired for flunking a drug test.  See Barbuto v. Advantage Sales and Marketing, LLC.  The Court held that employers need to consider medical marijuana as a prescribed drug and evaluate necessary reasonable accommodations surrounding its use. Employers can still take action against a medical marijuana user, but they have to show that they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business. In some situations, this will be a difficult burden to meet.

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Whitney Law Group Opens New York Office!

We are pleased to announce that Whitney Law Group, LLC has opened a new office in New York City!

As a result of an increasing number of referrals and new clients emanating from New York, WLG has opened an office at 48 Wall Street, 11th Floor, New York, NY  10005.  Mark began his legal practice and attended both law school and his undergraduate studies in New York.  He has been a member of the New York Bar since 1994.

If you are facing an employment law issue or need a commercial litigator in New York, please think of WLG!  We welcome and value your referrals in New York.

Image Credit: Wall Street Sign by Ramy Majouji used under Creative Commons Attribution Licence 

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$28 Mil. Retaliation Verdict is the Largest in Mass. History

A Suffolk County Superior Court jury just handed a $28 Million award to a former nurse who claimed she had suffered discrimination because of her race and was retaliated against by Brigham & Womens Hospital. This is the largest award in Massachusetts history for an employment law case.  A Boston Globe article discussing the verdict can be found here.

This is especially compelling, where the jury ruled against the plaintiff on her underlying race discrimination claim.  The jury based its entire award on the plaintiff's retaliation claim.  

Retaliation is still one of the fastest growing claims in employment law cases, and it is not uncommon for a plaintiff to lose on their underlying discrimination claim but still prevail on their retaliation claim. Retaliation occurs when an employee exercises their legally protected right, such as complaining about mistreatment, supporting another who complains, or objecting to what the employee believes is unlawful conduct. Importantly, the law does not require the employee to be "right" about their complaint.  They need only have a good faith belief that they are making a legitimate complaint. Employers and their managers regularly fail to appreciate this nuanced definition of retaliation. They also routinely fail to watch for and prevent the subsequent mistreatment of the person who exercised their protected right, most often because the employer believes the complaint to be frivolous or unfounded. As this case demonstrates, that failure can come with a heavy price tag.

The award included a lost wages award of $463,000 and an emotional distress award of $2,750,000. After deliberating for 3 days, the jury issued a punitive damages award of $25 Million! Punitive damages are intended to punish the defendant for its misconduct.

This case demonstrates the importance of having a strong policy that both defines retaliation and prohibits it.  After a complaint is made, in addition to investigating it employers need to monitor the work environment surrounding the complaining employee, as well as others who may support the employee or participate in interviews for the investigation. 

Employees who feel they have been subjected to retaliatory conduct in the wake of a complaint should notify the appropriate persons within the employer, such as Human Resources. Most importantly, however, those who suffer retaliation should be sure to document it and keep close track of the misconduct.  It is the employer's responsibility to police and prevent it, and failing to do so creates potential liability. 

Image Credit: Legal Gavel by Blogtoproneur used under Creative Commons Attribution Licence 

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Whitney Law Group Welcomes a New Associate

WLG is pleased to welcome Maureen DeSimone, who recently joined WLG as an Associate. Maureen is a 2018 graduate of Suffolk University Law School, where she served as a Content Editor on the Journal of High Technology Law. Maureen received her B.A. degree from Stonehill College in 2008 and obtained a Paralegal Certificate from Suffolk University's Applied Legal Studies Program in 2010.

Before joining WLG, Maureen spent 8 years (including the 4 years she attended Suffolk Law's evening program) working as a litigation paralegal and law clerk, focusing on employment law and civil litigation. Through her paralegal and law clerk experience, Maureen gained first-hand knowledge of the nuts and bolts of the employment litigation process in court and at state and federal agencies, including pre-trial discovery, trial support, and alternative dispute resolution. With all of her real-world legal experience, Maureen will hit the ground running for WLG's clients.

Maureen adds significant capacity to WLG's growing team, and further enables WLG to provide even better personal attention and legal expertise to its corporate and individual clients.

For more information about Maureen, click here.

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Mass AG Issues Formal Guidance on Compliance with New Pay Equity Law

Today the Massachusetts Attorney General issued a long-awaited compliance guidance to help employers prepare for the effective date of the Act to Establish Pay Equity, which amends the Massachusetts Equal Pay Act ("MEPA"), and which goes into effect on July 1, 2018.  A copy of the 30-page guidance can be found by clicking here. To see prior WLG blog posts discussing the amended MEPA, click here.

The AG's guidance document is titled, "AN ACT TO ESTABLISH PAY EQUITY: OVERVIEW AND FREQUENTLY ASKED QUESTIONS." The guidance covers a variety of important topics, including:

  • an overview of the law;
  • frequently asked questions;
  • important definitions, such as covered employers, covered employees, comparable work, wages;
  • an explantion of permissible variations in pay;
  • the prohibition against employer restrictions about employee discussion of wages;
  • the prohibition against seeking salary history from applicants in the hiring process;
  • retailiation; and
  • a detailed section covering the affirmative defense that the amended MEPA provides to employers who conduct self-evaluations of their pay equity practices and data.

Finally, the guidance contains a guide for employers who wish to perform self-evaluations, as well as a checklist to help employers review their policies and practices as they prepare for implementation of the amended MEPA.

There is still time for employers to get their houses in order in advance of July 1st. WLG is providing compliance advice to its clients to help them prepare for implementation of the amended MEPA, and so that they can relax and enjoy their July 4th weekend!

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Mark Quoted in Boston Globe Article About "Love Contracts" in the #MeToo Era

Mark Whitney was recently quoted in an article appearing in the Boston Globe concerning the increased use of "Love Contracts" by employers in response to relationships in the workplace and the #MeToo movement. The article is titled:  Dating a co-worker? You may need a love contract, and it contains a sample agreement as well.

The article begins, "Many companies already forbid supervisors from asking out subordinates, but some are cracking down on romance altogether, employment lawyers and human resource consultants say. Others are looking into love contracts — known more formally as consensual relationship agreements — in which co-workers who are romantically involved sign a document stating that they are together voluntarily and are aware of the rules surrounding workplace dating."

Mark and the lawyers at Whitney Law Group, LLC, advise employers in their use and implementation of such agreements.  WLG also specializes in representing executives for a variety of work-related issues, including negotiation of love contracts.

Image Credit: Drawn_love_hearts.svg from Wikimedia Commons public domain license.

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$1.2 Million Age Discrimination Verdict Provides Lessons for Employers and Employees

Late in 2017, a Norfolk County Superior Court jury awarded a 65-year-old plaintiff, James Beresford, $1.2 million in an age discrimination lawsuit against his former employer, Charles River Automotive (“CRA”) and CRA’s general manager Mark Gentile. The jury verdict awarded Beresford $317,780 in back pay, $285,000 in front pay, and $602,780 in punitive damages.

In July 1988, Beresford began working as a mechanic at YCN Transportation in Norwood, Massachusetts. Beresford then became the service manager and head mechanic a short time after he was hired. The family owned garage underwent multiple changes in ownership in the close to 30 years Beresford worked there. In August 2013, Marcou Transportation bought the garage and began operating as part of CRA, an affiliate of Marcou. Beresford remained as head mechanic and reported to Gentile. Gentile worked at another location but would occasionally visit the Norwood garage.

As part of upgrading its operations, CRA introduced a vehicle maintenance software solution called Dossier, which was supposed to help manage repair services more effectively. Beresford resisted the automation, and argued that paper record-keeping was more reliable. Gentile and Beresford agreed to give the computer related tasks to non-mechanic employees. Evidence presented at trial did not show that the garage suffered any harm from Beresford not using Dossier. Shortly thereafter, CRA abruptly terminated Beresford, age 61 at the time and after 27 years of service, because of poor performance and insubordination.  However, the defendants failed to provide any documentary evidence of performance issues.

The case went to trial and the jury awarded the seven-figure verdict. It is unclear why the jury awarded such a large amount of punitive damages. It may be attributable to Beresford’s long history with the company, lack of proof of discipline, Gentile calling Beresford an “old timer,” the timing of his termination, and/or the likability of Beresford as a witness. What’s interesting about this case is that it is not far off from many similar fact patterns that employment lawyers see in many other cases, where the damages awarded might be forecasted to be much less. Indeed, there does not appear to be any remarkable or particularly shocking evidence in the Beresford case that might explain the huge, $1.2 million-dollar verdict.

Lessons for employees:

This case illustrates that even if extreme, egregious facts are missing, employees who suffer discrimination in connection with a termination are entitled to whatever the jury believes is fair and just under the circumstances. If you believe that you are suffering discrimination based on age or some other protected category under the law (e.g., sex, race, religion, national origin, disability, etc.), be sure to keep track of all potential evidence, which includes taking notes of mistreatment, being aware of who may have witnessed the mistreatment, keeping copies of communications, etc. Seek legal advice early, as there may be steps you can take before being terminated that could save your job, or at least put you in a better position to succeed in a subsequent case against the former employer.

Lessons for Employers:

The Beresford case provides a salient example of why proceeding to trial on employment discrimination cases is so very risky for employers. In my experience, juries are naturally slanted against employers and very willing to believe that an employer wronged a former employee. Certainly, juries can be convinced that the employer is in the right; but many jurors have personal experience with being wronged by an employer. The Beresford case provides an example of why terminating a long-time and loyal employee without any accompanying documentation creates risk. While it is true that Massachusetts is an “at will” employment state (meaning employers or employees can end the employment relationship at any time and for any reason, or no reason at all, but not for an unlawful reason), juries expect employers to have documentation to support their positions. This documentation process is most frequently omitted by smaller, closely-held, and family-owned businesses without a professional HR manager. In many cases, these smaller and closely-held organizations can benefit by involving a lawyer early in the discipline and decision-making process. Although calling a lawyer early does involve incurring some additional costs, small companies should consider avoiding being “penny-wise and pound foolish” when it comes to matters such as terminating a 27-year employee.

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Marijuana Legalization in Massachusetts - Fears of Increased Federal Enforcement (Updated 1/21/18)

Status of Mass State Efforts to Roll-Out Retail Sales

Massachusetts voted to legalize recreational marijuana use in the November 2016 election. After months of debate, Governor Charlie Baker signed the long-awaited marijuana bill into law in July 2017. The new law taxes marijuana between 17 and 20 percent, depending on where the marijuana is purchased. The new law also created the Cannabis Control Commission (“CCC”) which is comprised of five-member panel that oversees the implementation of the new marijuana law.

The CCC must create concrete parameters around the sale of marijuana before any sale can happen. On Monday December 11, 2017, the CCC approved the establishment of “cannabis cafés” which allows a person to go a café, buy marijuana, then consume it right there. It is not yet clear whether people will be able to smoke in thecafés, as the CCC continues to examine issues such as second hand smoke and workplace safety. The CCC decided that they will issue “social use” licenses to businesses like spas that wish to sell or use cannabis infused lotions as well as the new cannabis cafés. Massachusetts is the first state to allow this. The CCC also plans on accepting applications for social use licenses for micro-businesses and craft cannabis cultivators. The CCC to work out the details but they hope to make a decision on the licenses by October 2018.

The CCC held a number of public meetings and voted on specific regulations relating to the sale of marijuana during the week of December 11th. The hot topics of debate included: local control; cannabis cafés; delivery services; and advertising and packaging. The CCC voted on and approved a draft set of regulations in late December 2017 and filed the draft with the Secretary of the Commonwealth’s Office. (To see the draft regulations, click here.) The CCC plans on holding more public hearings relating to the sale of marijuana throughout the beginning of 2018. State law mandates that the regulations must be finalized by March 15, 2018.

Recent Developments at the Federal Level Call State Legalization Efforts into Question

On January 4, 2018, U.S. Attorney General Jeff Sessions announced the end of an Obama Era policy which instructed prosecutors not to interfere with state regulated marijuana laws and policies. (For a complete text of the announcement, click here.) Sessions explained that the Justice Department would allow individual U.S. Attorneys to decide on the enforcement of federal marijuana laws in their states. Marijuana remains illegal under federal law despite eight states legalizing recreational use. U.S. Attorneys across the country are weighing their options after Sessions’ made his announcement.

Colorado U.S. Attorney Bob Troyer explained that his office would not change their current enforcement policies. Many Massachusetts advocates of marijuana legalization called on Massachusetts U.S. Attorney Andrew Lelling to follow in Troyer’s footsteps.

In early January 2018, Lelling gave somewhat of a mixed message regarding Sessions’ announcement. He pledged that his office will continue to prosecute marijuana crimes but indicated that it will go after bulk traffickers and criminal gangs as opposed to organizations that are acting within the state regulatory framework. Lelling justified his decision by explaining that his priority is to keep communities safe from drug crimes. He stated that his office will work with state and local law enforcement to help communities who have been devastated by drug related violence and the opioid crisis. (To read the complete text of Lelling's announcement, click here.) A spokesperson for the Marijuana Policy Project stated that the people of Massachusetts voted to legalize marijuana and disrupting an emerging market could impact new tax revenue and would allow criminals to continue selling marijuana illegally. Since Sessions’ announcement, the CCC has not changed their position on implementing the regulatory process. Its priority remains with protecting the public’s safety and developing regulations that comply with Massachusetts state and local laws.

In response to Lelling's statement, many marijuana dispensaries were forced to stop accepting debit and credit cards for payments after a key processessing company pulled out of the Massachusetts cannibus market. Governor Baker issued a statement encouraging the US Attorney to focus drug enforcement efforts on the opioid crisis.  

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NH Legislature Seeks to Limit Noncompete Agreements

NH follows the vast majority of states in the US with respect to the enforcement of non-competition agreements (“NCAs”). NH courts will enforce NCAs that are narrowly drawn to protect employers’ business interests in protecting confidential information and goodwill (or, business relationships).

While the applicable law in NH comes from common law -- i.e., is contained in written decisions issued by judges -- instead of statutes, NH has enacted one law concerning the administration of NCAs and the Legislature is currently considering another law that will limit the use of NCAs.

2012 Legislation Requires Advance Notice of NCAs

In July 2012, NH enacted legislation designed to ensure that employees who are asked to sign NCAs have sufficient notice of the NCA. The law requires any employer to provide a “noncompete” or “non-piracy” agreement before or at the time of an offer of employment or an offer of change in job classification. The law is quite brief. The entire statute is two sentences:

“Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.” See NH RSA 275:70.

None of the terms in the statute are defined, which will leave room for courts to interpret their meaning in the future. For example, the term “non-piracy agreement” is not a term that is commonly used in the context of restrictive covenants. Likewise, the term “change in job classification” is also vague.

To be safe, companies seeking to bind employees to NCAs or confidentiality or nonsolicitation restrictions should be careful to provide those restrictions at or before an employment offer is extended, or at or before any substantial job change or promotion is implemented.

New Bill Introduced that Will Prohibit Use of NCAs for “Low-Wage” Workers

On January 3, 2018, a bi-partisan group of state senators introduced a bill titled “An act relative to noncompete clauses for low-wage employees.” The full text of the bill can be found here: SB 423. The bill is currently referred to the Commerce Committee.

If passed in its current form, it would prohibit employers from entering into a NCA with “low-wage” employees. The bill defines a low-wage employee as someone earning $15.00 per hour or less.

This bill may be focusing too much on a lesser problem associated with NCAs. In general, employers often do not bother utilizing NCAs for low-wage workers. Employers are also less likely to expend resources enforcing a NCA against a low-wage worker. Ultimately, prohibiting NCAs for low-wage, hourly workers could benefit the few low-wage employees who are subject to NCAs.

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Mark Quoted in Recent Article About Severance Agreements

Mark Whitney was recently quoted in an article appearing in Massachusetts Lawyers Weekly concerning severance agreements and their impact of release language on equity rights of senior executives. The article entitled "Severance terms extinguished exec’s right to shares, options" discussed a recent Massachusetts Appeals Court decision which ruled against a former executive of a software company. 

In MacDonald v. Jenzabar, Inc., et al., the court found that the broad terms of a severance agreement acted to extinguish the former executive's rights to valuable stock options and preferred shares. A copy of the court's opinion may be found here. The MLW article may be found here (subscription required).