WHEN SHOULD AN EMPLOYEE CONSULT AN ATTORNEY? An employment lawyer can: (1) negotiate an employment agreement before you join a company, or negotiate a severance package when you leave employment; (2) coach you through a difficult employment relationship and determine what you need to document to preserve your rights; (3) help you assess whether your legal rights have been violated; (4) advise you of the strengths and weaknesses of any potential claim, including the risks of filing suit and the potential for recovering damages; (5) help you file a successful application for unemployment compensation; and (6) advise you how to get a copy of your personnel file and require the employer to include your side of the facts in your file.

WHEN SHOULD AN EMPLOYER CONSULT AN ATTORNEY? An employment lawyer can protect an employer by: (1) drafting or reviewing all employment contracts, Employment Handbooks or Codes of Business Conduct, severance agreements, and arbitration agreements; (2) advising you about relevant laws and how they affect your personnel decisions; (3) coaching you on how to deal with a problem employee, including the strategy and documentation you will need to develop to protect you from litigation; and (4) representing you if you receive a demand letter from an employee or are sued by an employee.

WHAT IS THE PURPOSE OF AN EMPLOYMENT HANDBOOK? If you are an employer, you need an Employment Handbook or Code of Business Conduct that sets forth your expectations, summarizes the essential employment policies, and defines the relationship between the employer and employee. These documents help both employers and employees achieve their goals by establishing guidelines that promote accountability, integrity, and compliance with the law. Loosely defined policies can undermine employee confidence and may expose the employer to liability. A written handbook is a reliable way for an employer to minimize the legal risk from lawsuits.

WHAT IS AN AT-WILL EMPLOYMENT POLICY? WHY IS IT IMPORTANT? If you are an employer, and your employees are not covered by a Collective Bargaining Agreement, you should make it clear that they are "at-will" employees. If you have an Employment Handbook or a Code of Business Conduct, you should make sure that you insert a disclaimer that the document is not an employment contract in any form, but that adherence to the document is a condition of employment. You should also include a statement like the following, "Employees can terminate their employment at any time for whatever reason with or without notice, just as the employer can terminate their employment or change the terms of their conditions of their employment at any time and for any reason, with or without cause. This is known as employment-at-will."  The inclusion of such language will deter litigation. Courts have repeatedly held that such a designation entitles an employer to fire an employee for good reason, bad reason, or no reason at all (so long as it is not a discriminatory or illegal reason). On the other hand, employers and employees should understand that even if someone is an at-will employee, that person is still protected from being fired because of age, gender, sexual orientation, race or disability. Nor can an employee be fired for doing what the law requires, e.g., reporting for jury duty, certain kinds of whistleblowing activity.

IF AN EMPLOYEE IS FIRED OR QUITS, CAN THE EMPLOYEE STILL APPLY FOR UNEMPLOYMENT COMPENSATION? Some people think that if employees are fired or quit, they are not entitled to unemployment compensation. That is not necessarily the case. For example, in Massachusetts, employees may be eligible for unemployment compensation if they are: (1) terminated for performance reasons; (2) quit their job due to racial, gender or religious discrimination; or (3) quit their job because of domestic violence concerns. By way of illustration, an employee quit her job because she believed that her manager put her on an unreasonable performance improvement plan after she refused to date him. Under those circumstances, she was able to win unemployment compensation based on the legal principle of constructive discharge.

WHY SHOULD AN EMPLOYER CONSULT AN ATTORNEY BEFORE DISCIPLINING AN EMPLOYEE? Lawyers see this problem time and again. An employer is justifiably unhappy with an employee but has not properly documented the reasons for the discipline; or the Employee Handbook may not contain language that gives the employer the discretion to disregard its progressive discipline policy; or the supervisor uses careless or intemperate language in the notice to the employee. Employers need to consider how this situation will sound to a third party, like a judge, jury or arbitrator. An employment lawyer can coach the employer through this process so that a record is created that supports the personnel decision.

WHAT SHOULD AN EMPLOYER OR EMPLOYEE CONSIDER WITH NON-COMPETITION AGREEMENTS? Oftentimes, an individual will sign what is known as a non-compete or non-competition agreement without considering important implications. For example, the agreement may say that any dispute or litigation will be governed by the laws of a state other than Massachusetts. Or, the agreement may be overbroad in time and scope. Job candidates should try to negotiate whether these restrictions still apply if they are laid off or otherwise involuntarily terminated. Under certain circumstances, a court may refuse to enforce a non-competition agreement because of an acquisition by another company, or because the company did not obtain a new agreement after the employee was transferred or received a promotion. Courts often frown on restrictions that bar a former employee from seeking a comparable job for years instead of months, or within the entire United States, rather than a more reasonable geographic limit. Some courts disfavor non-competition agreements for all but the most senior employees, but approve of non-solicitation agreements that bar ex-employees from recruiting former co-workers. An employer should, therefore, consider whether it really needs a non-competition agreement for all of its employees, or whether a non-solicitation agreement will be sufficient.

DOES AN EMPLOYER HAVE A DUTY TO MAINTAIN PERSONNEL FILES? IS AN EMPLOYEE ENTITLED TO A COPY OF HIS OR HER FILE? Massachusetts law requires employers of 20 or more employees to maintain personnel files, and sets forth the number of years employers must retain these files. Some of the required documents for personnel files are: job title and description; all performance evaluations; rate of pay and other compensation paid to the employee; and written warnings of substandard performance. Employers must produce a copy of their personnel file within 5 business days of a written request by the employee. Violation of this law is punishable by a fine of $500-$2,500 and is enforced by the Attorney General.

EMPLOYEE OR INDEPENDENT CONTRACTOR? The category into which workers fit is determined by the conditions under which they work and the kind of work they do. An employer does not have the discretion to simply select a category under which the worker falls. The penalties for misclassifying employees as independent contractors are severe, and can include back taxes, penalties and interest, unemployment and workers compensation liability and retroactive fringe benefits. A written contract between the company and the individual may help clarify the relationship, but it is not sufficient all by itself to make a worker an independent contractor. Among the factors a Court will consider are: (1) the nature and degree of the company's control of hours and manner of work; (2) tools and materials furnished; (3) work assignment method; (4) requirement to work on company premises; (5) the permanency of the relationship; and (6) the extent to which the worker's services are an integral part of the company's business. 

HOW DOES AN EMPLOYEE PROVE HE OR SHE WAS THE VICTIM OF RETALIATION? An employee must show that: (1) he/she engaged in protected activity, e.g., the employee reported financial fraud or complained to management about sexual harassment; (2) after reporting the misconduct by the employer, the employee suffered a negative employment action, e.g., termination, suspension, demotion, poor performance evaluation, or a change in duties; and (3) a causal connection between items 1 and 2.  Courts have held that "close temporal proximity" between the employee's protected activity and the adverse employment action can help prove a claim of retaliation.

CONTRACTS AND BUSINESS DISPUTES

WHEN SHOULD I CONSULT A LAWYER ABOUT A CONTRACT OR A BUSINESS DISPUTE? Whether you are an individual who is retaining a contractor, or you are a small business or a large company, having a lawyer review a contract before you sign it may save you time, money and aggravation down the road. Contracts often contain complex terms like indemnification, confidentiality, jurisdiction, and automatic renewal clauses that a lawyer can help you understand and negotiate. You want to make sure that: (1) you are getting what you bargained for; (2) your rights are protected; and (3) the contract is enforceable. If you already executed the contract but you now have a dispute with the other party, a lawyer can advise you what your options are, how to enforce your rights, and how to limit your own exposure on a counterclaim.

WHAT SHOULD I REMEMBER WHEN I NEGOTIATE A CONTRACT? It sounds simple, but too many people think that negotiation is the same as confrontation when it is actually an accepted and appropriate business practice. Too many businesses and individuals accept the terms and conditions that are offered to them without considering other options. It is typical for the other side to expect to engage in a back and forth dialogue and to consider mutually acceptable alternative language. If you don't ask, you will be stuck with provisions that you could have avoided with a simple telephone call. Having a lawyer draft, negotiate or review the contract could save you money in the long haul.

WHY SHOULD I NEGOTIATE A DISPUTE RESOLUTION CLAUSE? If you have a dispute with the other party to your contract, you will want to avoid time consuming and expensive litigation. An important way to protect your business interest is to include a clause that requires both parties to first try to mediate their differences with a designated representative from each party to the contract within a specific time frame. If mediation is unsuccessful, you can then reserve the right to seek relief in arbitration rather than in the court system. You can arbitrate a dispute in much less time than the typical three years or longer that it takes to bring a case to a jury.

WHAT IS A CERTIFICATE OF INSURANCE? WHY SHOULD I ASK FOR ONE FROM THE CONTRACTOR I HIRE? Say you hire a contractor to excavate a site for you and a pedestrian falls into the site and is injured. You want immediate protection. You do not want to wait for your insurance company to decide whether you are covered, which could affect your premium and cause you to incur attorneys' fees and pay damages to the pedestrian if you are not covered. So, even if the contractor is insured, ask them to have their insurance company provide you with a "Certificate of Insurance."  The Certificate should name you, or your company, as an additional insured party.  The Certificate of Insurance is a simple, one-page document that insurers regularly produce upon request. That way, not only can you argue that the contractor is obligated to defend you, but you can demand that the contractor's insurance company do so as well.

WHY SHOULD I CHECK THE TERMINATION LANGUAGE OF THE CONTRACT? Some contracts automatically renew for another year if you do not provide written notice of cancellation within a specific time frame before the renewal date. If no one is tracking that notice date for you, you could miss the deadline and end up with an ongoing contractual payment for a service that may no longer be necessary. This is an easily negotiated term for which a competent attorney can provide guidance.

WHAT IS INDEMNIFICATION? HOW WILL THE RIGHT INDEMNIFICATION LANGUAGE SAVE YOU MONEY? The whole idea of indemnification is that in exchange for you agreeing to do business with another party, they will agree to assume your defense for any claims arising from the performance of their contractual obligations. A simple to understand example is a snow removal company that agrees to maintain your property. In addition to the Certificate of Insurance mentioned above, it is imperative that you carefully negotiate the contractor's indemnification obligation. For example, it will do you little good if the contract provides that the contractor will indemnify you if they are shown to be negligent. Inevitably, the contractor will refuse indemnification unless you prove negligence on their part, which will require you to hire an attorney to both defend yourself and to enforce the indemnification agreement. Instead, the indemnification clause in every contract should make it clear that the duty to defend you begins when a third party presents a claim that arises from the contractor's performance of the contract, or any act or omission. That way, you are entitled to indemnification as soon as the claim is made rather than having to first prove negligence, which is a question of fact that usually requires a trial and cannot be resolved on a simple motion to the court.

WHY IS IT SO IMPORTANT TO HAVE A WRITTEN RATHER THAN AN ORAL CONTRACT? Laugh if you will, but the old joke really is true: A verbal contract is not worth the paper it is written on. Sounds obvious, but if you don't insist on specific terms and conditions in the contract itself, or what lawyers call "the four corners of the document", you will face a serious hurdle to enforce what you believe are your rights. A "side agreement" is useless unless it's incorporated by reference into the contract itself. Prior or subsequent agreements are not enforceable either unless they are specifically referenced in the contract. The party with whom you are negotiating may mean well and be an honorable person, but misunderstandings occur, or people change their minds. The only way a court can decide what the parties actually intended is to examine the contract itself.