Mark founded WLG in 2017. For 15 years prior to founding WLG, Mark gained experience at Morgan, Brown & Joy, LLP in Boston, one of the oldest and largest management-side employment law boutiques in the country. Mark was an equity partner at MB&J from 2006 to 2017. Prior to that, Mark worked at two Am Law 100 firms in New York City and Boston, and at the largest law firm in New Hampshire.
For his first 24 years of practice, Mark has focused on employment law and a variety of complex commercial litigation. Mark spent the vast majority of his practice representing employers and insurance companies.
Mark has a broad spectrum of employment law experience. He has successfully handled cases before administrative agencies and the courts in disputes arising under the myriad state and federal laws that regulate the employment relationship. An important part of Mark's practice has been helping clients prevent such disputes by providing consulting services on a variety of employment law issues, such as risk management practices, personnel policies, and statutory compliance. Mark also conducts employment law-related risk management training for executives/management and employees.
Over the years Mark developed substantial experience in the areas of restrictive covenants, trade secret and intellectual property protection, and unfair competition law. He helps companies protect their valuable trade secrets and business relationships. Mark assists clients with prevention and strategic advice, including development and implementation of critical policies, best practices, key agreements (noncompete, nonsolicitation, nondisclosure, inventions and developments, separation, and other employment-related agreements), hiring and other business strategy decisions. Mark has represented companies in court and arbitration proceedings concerning disputes over misappropriation of trade secrets, employee raiding, breaches of restrictive covenants, violations of fiduciary duty/duty of loyalty and related business torts, or other methods of unfair competition. Mark is the author of the New England Non-Compete and Trade Secrets Digest, a blog that covers developments in the law of Restrictive Covenants, Trade Secrets, Unfair Competition, Employee Mobility, and Business Torts in the six New England states. Mark is a member of the Advisory Board of Brooklyn Law School’s Trade Secrets Institute. He is an active member of the Trade Secrets and Interference with Contracts Committee of the ABA’s Section of Intellectual Property Law, and authors the First Circuit Trade Secret Law Update for the ABA IP law section’s annual meeting. Mark previously served for several years as the editor of the Massachusetts chapter of the leading national treatise on noncompetition law. [Covenants Not to Compete: A State By State Survey (BNA 2004)]
At WLG, Mark puts his years of defense-oriented knowledge and experience to work on behalf of individuals. Mark assists individuals who may have been subjected to an adverse employment action and prosecutes claims based on unlawful discrimination and other employment-related claims. Also, as explained in the practice section, Mark provides individuals with an affordable, fixed price approach to restrictive covenant issues. This unique approach is designed to give individuals a fighting chance to challenge overbroad or unfair post-employment non-compete agreements and other restrictions.
Mark regularly presents seminars to a variety of industry groups, human resources organizations, companies, and bar associations on a wide variety of employment law, restrictive covenant, and other business law topics. Those topics have included:
Presented the "IP Protection Update for Massachusetts Employers" at the MetroWest Chapter of the Society for Human Resources Management, the MetroWest HRMA. (November 2016)
Presented at the National Business Institute seminar “Employment Law: 2016 Comprehensive Guide” on the subjects “Avoiding Wage and Hour Violations” and “Monitoring Employees: Privacy Issues and Employer Risks.” (November 2016)
Quoted in a Massachusetts Lawyers Weekly article entitled, "Severance terms extinguished exec’s right to shares, options." (1/18/18) A copy of the court's opinion may be found here. The MLW article may be found here (subscription required).
Appointed to the Board of Directors of Pier Park Sailing Center, a 501(c)(3) community sailing center dedicated to providing affordable recreational, educational, and personal growth opportunities for people of all ages and abilities in Boston.
Published an opinion piece in the Boston Business Journal entitled, "ViewPoint: Non-compete reform’s potential impact on Massachusetts’ employers." (7/22/16) Click here to see the article (subscription required).
Quoted in a Boston Business Journal article entitled, “Noncompetes EMC-Dell deal a wild card in renewed debate over noncompetes.” (3/2/16) The full article can be found here.
American Jurisprudence Award, Legal Writing and Civil Procedure (award for achieving the highest grade in the entire class)
Bar and Court Admissions
State Bar Admissions:
Federal Court Admissions:
US District Court, District of Massachusetts
US District Court, District of New Hampshire
US District Court, for the Eastern, Northern and Southern Districts of New York
US Courts of Appeals for the First, Second, and Third Circuits
US Court of Federal Claims
Mark is active in the community. He is a member of the Board of Directors of Piers Park Sailing Center, a 501(c)(3) community sailing center dedicated to providing affordable recreational, educational, and personal growth opportunities for people of all ages and abilities in Boston.
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.
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.
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.
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.
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;
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!