Boston Lawyer Blog

Know Your Rights: Restrictions on Non-Solicitation Clauses

Published on: November 7, 2022 | by Ana Muñoz

We have previously written about how Massachusetts law limits non-competition clauses. Non-competition clauses restrict where an employee can work after she leaves a job; an employee agrees in a contract not to work for a competitor for a period of time after she separates from an employer. Under M.G.L. c. 149 § 24L, non-compete agreements signed as a condition of employment must meet certain requirements, including advance notice of the clause, compensation in exchange for accepting the limitation, and the opportunity to consult with counsel. The law also requires that non-competes have a limited duration and scope. Clauses signed after October 2018 must comply with the statute to be enforceable.

But there are other kinds of restrictions that are like non-competes that are not subject to the statute’s requirements. Principal among those are non-solicitation agreements. Non-solicitation clauses restrict who an employee can contact after they leave a job. Non-solicitation clauses can prohibit people from recruiting employees at the prior employer. Clauses can prohibit reaching out to, or doing business with, any customers of the prior employer. Sometimes they are written so broadly that a clause tries to prohibit an employee from even speaking with a former customer or co-worker. Thus, employers sometimes try to use non-solicitation agreements to accomplish what they no longer can through a non-compete clause: The clauses are broad and unlimited; they can be so restrictive about what communications an employee may have, that, in practice, the employee cannot conduct business. Imagine, for example, a seasoned salesperson with a large existent network of customers. As a practical matter, a non-solicitation agreement might bar her from talking to most potential customers in her industry should she leave a job, preventing her from performing any new job she should get that involves sales.

Courts, however, have held overly broad non-solicitation agreements unenforceable. Thus, even absent the protection of a statute, the law still places restrictions on a company to limit a former employee’s communications with former colleagues and customers. A judge in the Massachusetts Superior Court recently noted that non-solicitation agreements “limit competition in a market to sell goods or services to potential customers.” As the Appeals Court has held, a non-solicitation agreement can only be enforced under Massachusetts law to the extent “necessary to protect the employer’s legitimate business interests” and “and only to the extent that it is reasonable in time and space, necessary to protect legitimate interests, and not an obstruction of the public interest.” That means, for example, that a non-solicitation clause that does not have any relationship to protecting an employer’s confidential information, intellectual property, or trade secrets is likely unenforceable. A non-solicitation agreement that is not limited in time or geography is also likely unenforceable.

When Are Remote Workers Covered by Massachusetts Laws?

Published on: October 31, 2022 | by David Russcol

In the last few decades, and particularly since the start of the COVID-19 pandemic, remote working arrangements have become increasingly common. In many industries, an employee can produce documents, answer emails, and attend video meetings from anywhere with an Internet connection, without even setting foot in an employer’s office. That flexibility, however, can create complications for the employment relationship, particularly when there is a question about which state’s laws apply. Since Massachusetts laws are often more favorable to employees than those of other states, we regularly field questions from workers wondering whether they can enforce their rights under Massachusetts law even if they do not live, or regularly work, in Massachusetts.

Unfortunately, there is not one clear answer that applies to all laws or all situations. For the most part, a court will look at the details of an employment relationship to decide whether Massachusetts is the core of the relationship or has significant connections to what the employee was doing. The physical place that work takes place is relevant but not always dispositive. CONTINUE READING ›

“I Quit!” What You Need to Know About the Law Before You Resign

Published on: October 11, 2022 | by Emma Quinn-Judge

If you are an at-will employee, you have the right to quit your job at any time. And there may be compelling reasons to leave immediately. But quitting your job will affect your legal rights, so before you resign, here are some things to consider.

Can I collect unemployment?

You may not be able to collect unemployment if you quit. In Massachusetts, if you choose to resign, you will not be eligible for unemployment unless you show that you left (a) for good cause attributable to your employer; or (b) for urgent and compelling personal reasons. When you quit, the burden will be on you to show that you should receive unemployment. CONTINUE READING ›

Harrison vs. MBTA: Appeals Court Limits Protection for Commonwealth Workers

Published on: October 3, 2022 | by Jennifer M. Herrmann

Earlier this month, the Massachusetts Appeals Court limited protections available to public employees in Harrison vs. MBTA, holding that sovereign immunity protects public employers from claims brought under the employee misclassification and anti-retaliation provisions of G.L. c. 149.

In general, sovereign immunity is a legal doctrine that protects a government from being sued. The Massachusetts government, like most governments, has created certain exceptions to the doctrine, so that the state can be sued under limited circumstances. Unfortunately, as decided in Harrison, employee misclassification and wage-based retaliation do not qualify.

Background of the Case

Harrison involves two workers who performed IT services for the MBTA pursuant to contracts between the MBTA and other merchants. The workers alleged that they were misclassified as independent contractors rather than employees, which disqualifies them from certain legal protections, and one of them alleged that he was fired in retaliation after asserting that he was misclassified.

Both claims – misclassification and retaliation – arise under the Massachusetts Wage Act, G.L. c. 149, §148 et seq. Before reaching the question of whether the workers were misclassified or retaliated against, though, the court had to decide whether sovereign immunity allowed the suits to be brought against the MBTA. CONTINUE READING ›

Back to School Basics: The Proposed #TitleIX Regulations and Pregnant Students’ Rights

Published on: September 8, 2022 | by Naomi Shatz

Proposed Title IX Regulations Would Expand Protection for Pregnant Students

Title IX is a federal civil rights statute that prohibits discrimination on the basis of sex in any education program that receives federal funding. This prohibition extends to discrimination based on pregnancy and related conditions, including termination of a pregnancy. As I have previously noted, there have been relatively few cases litigated by students alleging they have been discriminated against because of pregnancy, leaving the scope of Title IX’s protection of pregnant students somewhat undefined.

The current regulations implementing Title IX state: “A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom . . .” The regulations further require schools to treat pregnancy, childbirth, termination of pregnancy, and recovery therefrom as a temporary disability, and to provide students protected leave for as long as is deemed medically necessary to address those conditions. CONTINUE READING ›

Back to School Basics: Teachers, Employees, and Title IX

Published on: September 7, 2022 | by Naomi Shatz

What Teachers and Other School Employees Need to Know About Title IX

While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.

Title IX Protects Employees from Discrimination and Harassment

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously. CONTINUE READING ›

Back to School Basics: Rights to Free Speech in Higher Education

Published on: September 2, 2022 | by David Russcol

Colleges and universities have traditionally valued free expression, experimentation, and open discourse as a core part of their missions. Students and faculty should be free to speak their minds and express themselves in order to provoke discussion and achieve greater understanding. But there are limits to the legal rights to free speech on campus. What those limits are depends on factors like whether a school is public or private, and what promises have been made in university handbooks or policies.

A public university (including state colleges and universities as well as community colleges) is subject to the limitations of the First Amendment. Under the First Amendment, speech or expression is generally protected by the Constitution unless it falls into one of a limited number of categories of unprotected speech, such as threatening speech toward another (“true threats”) and aggressive or insulting speech delivered face-to-face that is likely to provoke violence (“fighting words”). A public college usually cannot punish a student for First Amendment-protected speech unless the student or their speech is disruptive to the educational environment; this is a constitutional right that can be vindicated under Section 1983, part of the Civil Rights Act. There are also limits on the ability of a university to punish a student for off-campus speech. Faculty are also entitled to First Amendment protections, but given that they are often speaking as teachers in their roles as university employees, the school has a greater ability to control what they say in their capacities as faculty.

Racial Discrimination and Harassment in School

Published on: September 1, 2022 | by Naomi Shatz

pexels-cdc-3992949-scaled I have gotten many calls from families whose children have been harassed and discriminated against in school because of their race. Repeatedly, I am hearing that students of color, often in predominately white schools, are being called the n-word by their classmates and targeted for bullying and harassment. I am hearing that these schools are disproportionately disciplining those students of color, often for vague and subjective offenses. Even more concerning, some of these families have told me that when they have reported their children’s harassment to school officials, those officials have recognized that they have a problem with white students harassing and bullying students of color but have claimed not to know how to address or prevent the harassment. Harassment and discrimination against students of color violates both federal and state laws, and schools have an obligation to take steps to address it.

Federal Anti-Discrimination Laws

Title VI is a federal law that prohibits discrimination on the basis of race, color, or national origin in any education program that receives federal funding. This includes all public K-12 schools, private K-12 schools that participate in federal programs like the National School Lunch Program, and almost all colleges and universities. Under Title VI, schools have an obligation to address racial harassment that interferes with students’ ability to access their education.

Back to School Basics: What To Do When the (Campus) Police Come Calling

Published on: August 31, 2022 | by David Duncan

Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights. CONTINUE READING ›

Williams v. Kincaid Addresses ADA Protection for Gender Dysphoria

Published on: August 25, 2022 | by Zalkind Duncan & Bernstein LLP

By Julia Gaffney, law student intern

Last week the Fourth Circuit Court of Appeals held that individuals who experience gender dysphoria can be protected from discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Kesha Williams, a transgender woman with gender dysphoria, was incarcerated for six months in Fairfax County Adult Detention Center. Although she was originally assigned to be housed with female inmates, when the prison officials found that Ms. Williams is transgender they moved her to the male housing section. They also refused to provide Ms. Williams with her medical hormone treatment, which she had been taking for fifteen years to treat her gender dysphoria, intentionally misgendered her, and physically harassed her. When she was released, Ms. Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging ADA violations, constitutional violations, and state law violations. The district court dismissed Williams’ claims under the ADA and Rehabilitation Act holding that gender dysphoria does not constitute a disability under those statutes. The district court dismissed her complaints for failure to state grounds for relief and for statute of limitations reasons.