The In-House Advisor

  • Don’t Risk Having an Equivocal Forum Selection ClauseMay 10, 2018

    As I discussed in a 2015 blog post, the language in a forum selection clause is critical if you want to ensure that potential litigation takes place on your “home court.” Indeed, as the defendants in Genis v. Campbell recently learned, having a less than all-encompassing and precise forum selection clause can lead to unintended results.

    Alfred Genis is a Massachusetts resident and a diamond laboratory scientist. In 2013, Genis met Martin Campbell, who, along with his brother, David, owned Pure Crystal, a company involved in growing laboratory diamonds. In October of that year, the three individuals executed what would later be referred to as the “October 2013 Agreement.” That Agreement indicated that Genis would be granted 25% equity in Pure Crystal and also would receive equity in two new companies to be formed. In that same month, the Campbell brothers formed the first of those companies, Kimberlite Applied Science, LLC, and Genis executed an “Employment Agreement” and a “License Agreement” with Kimberlite.

    By 2017, the relationship between Genis and the Campbells had broken down, and Genis filed suit in Massachusetts Superior Court, alleging that his intellectual property had been misappropriated and that he had not been granted … Keep reading

  • Massachusetts Pay Equity Law Bans Salary History Inquiry, and So Much MoreApril 19, 2018

    The Act to Establish Pay Equity, amending G.L. c.149, §105A (MA Pay Equity Law), goes into effect July 1, 2018. All employers, regardless of number of employees, whose employees perform all or the greater part of their work in Massachusetts, are required to comply with the MA Pay Equity Law.

    One of the law’s notable aspects is that a potential employer cannot ask a job candidate what his/her prior salary history is. Many employers regularly ask job candidates what they make as a way of gauging whether they can meet the compensation expectations of a job candidate or, in some cases, trying to determine the least amount of pay to offer. In this day of networking, management-level employees may also receive job inquiries from potential candidates, and it is not uncommon for managers to ask, “How much are you making now?” as a threshold question, to determine whether the inquiry is worth passing on. Unfortunately, if such benign questions are asked, the candidate may bring a legal claim for violating the MA Pay Equity Law.

    With such a low threshold to assert a legal claim, what should you do? First, make sure all employees know that, under no … Keep reading

  • Pregnant Workers Entitled to Special Accommodations in MAApril 03, 2018

    Effective April 1, 2018, for employers with six or more employees, Massachusetts’ prohibitions on discrimination in the workplace have been expanded to prohibit discrimination on the basis of pregnancy and pregnancy-related conditions. The Pregnant Workers’ Fairness Act specifically makes it unlawful to discriminate against an employee based on lactation or the need to express breast milk for a nursing child. Further, if an employee requests an accommodation for pregnancy or a pregnancy-related condition, an employer will be required to engage in a timely, good faith, “interactive process” to determine an effective, reasonable accommodation that enables the employee to be able to perform the essential functions of her position, just as an employer is required to do for an employee with a disability.

    Reasonable accommodations under the new law include:

    • more frequent or longer paid or unpaid breaks;
    • time off to attend to a pregnancy complication or recover from childbirth;
    • acquisition or modification of equipment or seating;
    • temporary transfer to a less strenuous or hazardous position;
    • job restructuring;
    • light duty;
    • private non-bathroom space for expressing breast milk;
    • assistance with manual labor; and
    • a modified work schedule.

    Although employers are allowed to seek medical verification for certain types of accommodations, medical Keep reading

  • The Attorney-Client Privilege When Non-Party Experts Are Part of the CommunicationsMarch 22, 2018

    It is not unusual for business people and/or in-house counsel to consult with accountants or other non-party experts when contemplating a potential business transaction. As the defendants in The C Company, Inc. v. Hackel recently learned, however, trying to protect such communications from disclosure based on the attorney-client privilege can be difficult, if not impossible.

    In The C Company, attorney Todd Goldberg represented Michael Hackel and Dining-In, Inc. in connection with a 2008 transaction with The C Company and Nicholas Cercone. During negotiations, an employee of The C Company emailed a draft agreement to the company’s outside accountant, and asked him to evaluate the tax implications of the contemplated transaction. The accountant provided that advice, after which Attorney Goldberg and the accountant exchanged their own emails so that Attorney Goldberg could better understand the accountant’s viewpoint. After litigation related to the transaction was filed by The C Company and Cercone, they sought to discover all of the foregoing communications, and the defendants took the position that such communications were protected by the attorney-client privilege. In analyzing the matter, the Superior Court Judge began by stating that:

    Massachusetts recognized the so-called “derivative” attorney-client privilege. Under this doctrine, the attorney-client

    Keep reading

  • Massachusetts Employers: Prepare for Supplemental Unemployment Tax AssessmentsFebruary 28, 2018

    Massachusetts employers will soon see the impact of House Bill 3822, signed last year by Governor Charlie Baker. In an effort to offset the significant shift from commercial to publicly subsidized health care coverage, in 2018 and 2019, there will be an increase in the existing Employer Medical Assistance Contribution, as well as a new supplemental fee for employers whose non-disabled employees either receive coverage through the Massachusetts Division of Medical Assistance (MassHealth) or have their coverage subsidized by the Massachusetts Health Insurance Connector Authority (ConnectorCare).

    Beginning in the first quarter of 2018, all employers will likely see an increase in their existing EMAC, assessed through the Department of Unemployment Assistance. The increase is intended to be temporary and applicable to wages paid in calendar year 2018.

    Additionally, employers with more than five employees who are non-disabled and receive health care coverage through MassHealth or receive subsidized care through ConnectorCare for a period of at least 56 continuous days, will be assessed a supplemental fee of up to 5% of a covered employee’s unemployment insurance taxable wages (up to a cap of $750 per covered employee). The assessment will be based on wages on record with the DUA for … Keep reading

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