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Articles Tagged with Employment Law

pexels-fauxels-3184603-scaledWe 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, Restrictions on Non-Solicitation Clauses 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.

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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 ›

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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 ›

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