By Jack Merrill
Most employers know it is illegal to discriminate against workers based on age, gender, race, disability or other characteristics. What some don’t realize is that asking the wrong questions on job applications and in interviews can also lead to charges of illegal discrimination.

Trouble in this area is easy to find. Even innocent questions are sometimes off limits. Asking the wrong ones can lead to discrimination lawsuits, even when the hiring decisions at issue are based on legitimate qualifications.

“What is your maiden name?” “What languages do you speak?” “Do you have children?” “Can you send a photograph with your job application?”

These questions and many others elicit information that employers cannot seek from applicants. Though an interviewer may not be thinking about discriminating when asking them, the questions suggest otherwise. They can, then, lead to an MCAD or other suit in which an employer will be forced to justify its hiring decision against a claim that it was discriminatory.

To avoid this costly problem, employers should prepare in ad-vance for the hiring process. The MCAD’s guidelines for job inter-views can help employers under-stand what’s OK and what isn’t. What follows here is a summary of some of the rules that apply to common situations that employers might encounter.

Disability Issues

Disability laws aim to ensure that all workers have a fair chance to participate in the workforce. Most inquiries in this area are prohibited, at least until a worker is offered a job. During interviews, employers can ask about an applicant’s ability to perform specific job functions. After an offer is made, they can require medical exams to confirm that a new employee can do the job. Employers can also invite voluntary disclosure of disabilities to assist them in affirmative action or ac-commodation efforts.
Employers should not ask whether an applicant has limits that prevent job performance. Nor should they ask about past histories of illness, alcoholism or drug addiction. If an applicant voluntarily discloses a medical condition, an interviewer should use caution with follow-up questions, assuring that they relate only to specific job functions.

Age Issues

Age discrimination laws exist at state and local levels to protect workers over age 40. About the only permissible question an employer can ask regarding age is whether or not an applicant is 18. This, of course, is unnecessary in most cases, and employers are well advised to simply stay away from age-related inquiries unless an appli-cant’s birth date is specifically relevant to a particular job duty or qualification. In those cases, the pertinent inquiry will likely appear on a written application, so unquali-fied people will never make it to the interview stage of the hiring process. Indirect inquiries into age – the date of high school graduation, for example – should also be avoided, since they can reveal an applicant’s age.

Gender Issues

Gender-specific information is, of course, off-limits. Danger lurks in indirect questions about the intent to marry, to have children, or how children will be cared for. The questions not only raise sex discrimination issues, but can also suggest improper bias based on sexual orientation. While employers can make gender a job requirement when it’s essential to do so, those situations are rare and should be reviewed by counsel before a de-termination is made.

Jack K. Merrill specializes in Massachusetts employment law and counsels small businesses on various matters.

By Jack Merrill     

Massachusetts’ cutting edge data security law is in effect at last, and its reach is nothing if not broad. Though aimed at protecting private information in the wake of major security leaks, the new law applies to everyone who stores personal data of any sort, no matter how small the stockpile of information may be.

After several delays, Chapter 93H of the general laws took effect on March 1, 2010. It requires that all personal information about Massachusetts residents be protected through written security protocols, encryption of data, and notice procedures. Given the potentially stiff penalties for violations, all employers should already have new policies and security systems in place. Those that don’t should correct that oversight promptly.

The law’s purpose is to protect personal data that is stored in either paper or electronic form. It applies whenever a person’s first and last name (or first initial and last name) along with either a social security, driver’s license, or financial account/credit card number are in a company’s possession. Since virtually every employer stores this type of information about its workers, at the least, all must comply with the law.

When personal information is possessed, the holder must create a “comprehensive information security program” in writing. The program must include administrative and physical safeguards geared toward the holder’s circumstances. Depending on the types and volumes of data held, a program must be more or less complex and comprehensive. The simpler the business, the easier it will be for a program to effectively protect private data.

This goal is common to all security programs, regardless of business size or type. One or more employees must be designated to maintain the security program, and both internal and external risks must be assessed. Current employees must know the rules and be punished for violating them, and former workers must be barred from accessing private data. Where third parties have access to information, they must agree to maintain proper security procedures.

For electronically stored data, the law requires a computer security system. It must include secure user authentication protocols, sensible password assignment rules, and access restrictions. Any personal data that is electronically transmitted must be encrypted, as must all such data stored on portable devices. This means special procedures are needed for laptop computers and, perhaps, even Blackberries and the like.

If a security breach occurs, strict notice requirements apply. When a data holder has reason to believe private information was released, it must notify all persons involved along with the Massachusetts Attorney General and the Department of Consumer Affairs. Information about the nature of the breach, the number of persons involved, and steps taken to address the problem must be included. For consumers whose data is released, a data holder must provide information about obtaining police reports and security freezes.

By Jack Merrill
Starting a successful business isn’t easy. It may require financial risk, long hours at the office, and maybe a bit of luck. The last thing a small business owner needs is to be damaged by the disclosure of its trade secrets to the competition.

Protecting the information that helps make a business successful, then, should be a central part of every business plan. Employees, after all, become former employees, sometimes with an aim of starting a competing enterprise. Through this route, by accidental disclosures, or as the result of careless use of secrets, key inside information can be revealed. The damage such disclosure can cause to profitability can be substantial. At times, it may even threaten a company’s survival.

Preventing a crisis like that requires careful planning. By first identifying critical inside trade information, then taking steps to control its dissemination, small companies can minimize their exposure in this area. The process should include several steps.

Getting Organized

The starting point for key asset security is strong organization. Businesses must understand the types of information they need to safeguard and be certain they know precisely how and by whom the data is stored and used. Common items meriting protection are customer lists; purchase and sales histories; pricing material; product plans; and marketing strategies. Good organization means that only those who need trade data to perform their duties will have access to it. It should include rules for data use and mechanisms for tracking who touches it, when, and for what purposes. Whether, for when, and in whose hands key assets leave a business’s offices should be mapped out.
Confidentiality Agreements

Employees with access or potential access to important trade material should be asked to sign a confidentiality agreement. The document will help solidify rights concerning the use of private material and, perhaps as importantly, provide a mechanism for enforcing rights in court. Confidentiality agreements should include provisions for injunctive relief and for repayment of legal fees in cases where trade data is improperly taken or disclosed. They should be tailored to address particular company needs. When employees get new jobs or leave the company, new signatures may be required.

Non-Competition Agreements

Non-competition agreements can be useful tools. While they are difficult to enforce literally in Massachusetts, they serve an important purpose in many circumstances.

Non-competes are not, however, the panacea that many business owners seem to think they are. Simply creating a form agreement and requiring all new employees to sign it does not effective trade protection make. As in other areas of key asset protection, non-competes should be carefully drafted and judiciously used.

The goal of a non-competition agreement should not be to keep a former employee from working for a competitor. Instead, effective forms aim at ensuring that former workers do not improperly use important inside trade information at a new job. Massachusetts courts do not enforce non-competes for any other reason. The documents should be tailored to restrict workers only to the extent needed to protect key assets. They should be signed as part of the initial hiring process by employees who require them, then re-signed whenever a worker is promoted or has substantial job duty changes.

Jack K. Merrill specializes in Massachusetts employment law and counsels small businesses on various matters.

By Jak Merrill
Massachusetts courts were again busy in the employment arena in 2012. They issued rules on the waiver of Wage Act claims by employees and reinforced the idea that LLC managers can be personally liable for failing to properly pay their workers. At the MCAD, there issued yet another reminder of the huge potential price to be paid for acts of sex or other discrimination.

The trend in the employment arena continues to favor workers. At the Commission Against Discrimination, whose mission is to seek out discriminatory conduct, as well as in the courts, warnings for employers continue to issue. It’s now more important than ever for companies to understand the myriad laws that may impact their relationships with employees. Even the 2011 bright spot – a superior court judge’s conclusion that LLC managers are not personally liable for Wage Act violations – was undermined. Today, that issue seems to be going employees’ way, too.

What follows is a summary of some important employment law decisions from 2012.

Waivers of Wage Claims
Ensuring that a departing employee waives claims for unpaid wages now requires specific release language. The state’s highest court ruled late in 2012 that, when it comes to the state’s Wage Act, a waiver won’t be enforceable unless “plainly worded and understandable to the average individual.” The decision calls into question past releases that were general in nature and did not “specifically refer to the rights and claims under the Wage Act that the employee is waiving.” The Act requires employers to pay all wages within specific time limits and covers commissions and unused vacation time. Violators can be punished by triple damages and legal fees.

LLC Manager Liability
At least two superior court judges disagreed with a 2011 decision that managers of limited liability companies cannot be personally liable under the Wage Act. While these lower court rulings don’t settle the issue for LLC owners, they signal a trend in the wrong direction. Most employment lawyers expect that, if and when a higher court rules on this issue, it will find that LLC managers are liable just as are corporate presidents.

Discrimination Damages
In yet another reminder of the risks of even innocent acts of illegal discrimination, the MCAD awarded a female former employee of a large office supply company more than $1.5 million in damages. The case involved a woman who was let go as part of a broader layoff. While the company, Office Max, applied seemingly neutral criteria in support of the layoff decision, the Commission found that its conduct was tainted by gender bias. It cited subtle forms of bias – exclusions from golf outings that men attended, e.g. – to support the judgment, which could exceed $2 million when interest and legal fees are added.

Jack K. Merrill specializes in employment law and counsels small businesses on various matters.

My husband and I are getting divorced after an 8 year marriage. We’ve agreed to try to keep a sense of normalcy for our 3 young children, so they will live most of the time with me in our home in Sherborn but we haven’t yet come to an agreement about when they will stay with their dad and both sets of grandparents want to see the kids too. Is this something that can get written into the divorce agreement?

ATTORNEY ANSWER:

Yes, although it isn’t typical to provide for grandparent visitation in a Separation Agreement, if you can agree on it then you can include it.  Visitation scheduled can be as detailed and specific as necessary. 

Our Sherborn Child Custody and Visitation Attorneys at HKWG assist divorcing couples with issues involving children, custody and visitation schedules  in Sherborn Massachusetts and in the surrounding communities including: Concord, Lincoln, Natick, Sudbury, Wayland, Wellesley and Weston.

Can the provisions of a divorce be changed after finalization?  My ex and I have been divorced for almost 6 years, and I’d like to buy a home in Framingham for myself and our kids and would like additional support from my ex. What is the process and is it difficult?

ATTORNEY ANSWER:

You can always petition the court to modify child related provisions of the Separation Agreement post-divorce upon a change in circumstances by filing a Complaint for Modification.  In your case, your ex-husband’s income would need to have increased since the divorce, resulting in a higher child support order, in order to prevail on a Complaint for Modification.

Our Framingham Divorce Modification Lawyers at HKWG assist divorcing couples with issues involving children, parenting plan and division of assets in Framingham Massachusetts and in the surrounding communities including: Ashland, Concord, Lincoln, Natick, Sudbury, Wellesley and Weston.

I am a landlord in Sudbury and one of our tenants reported water and damage in the basement.  When I came to check it out, I discovered that they moved the washing machine (that is provided for their use) and thus the leak and damage.  As the landlord am I required to pay the repairs or are the tenants?  There’s nothing about this in the lease.   Thanks in advance.

ATTORNEY ANSWER:

The tenant is responsible for damage caused by the tenant.  However the proof of something like this can be difficult without someone knowledgeable about that appliance testifying as to the cause of the leak.  I never know why my washing machine is leaking. 

Our Sudbury Real Estate Attorneys provide legal representation for landlord tenant disputes and other real estate transactions to individuals, families and businesses in Sudbury Massachusetts and throughout the Boston metro west region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard,  Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Waltham, and Worcester, Massachusetts.