To Avoid Discrimination Lawsuits, Employers Should Be Familiar
With the Types of Questions They Can and Cannot Ask Their Job Applicants

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. [Read more...]

The Massachusetts Data Security Law is in effect. Its Broad Protections of Private Data Reach Employers of Virtually all Sizes and Types.

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. [Read more...]

Small Businesses that Enjoy a Competitive Edge from Unique Products, Marketing Approaches, or Customer Relationships should Carefully Protect their Key Assets

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 [Read more...]

Notable Developments in Employment Law Include Rules on the Waiver of Wage Act Claims, Support for Individual Liability for LLC Managers, and a Reminder of the Substantial Damages that can Flow from Acts of Gender or other Discrimination.

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. [Read more...]