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Pierce and Mandell PC Blog

Recent Federal Court Decision Addresses Massachusetts Non-Compete Act

Friday, November 12, 2021
Recent Federal Court Decision Addresses Massachusetts Non-Compete Act

By Hannah Schindler Spinelli and Scott M. Zanolli

The 2018 enactment of the Massachusetts Noncompetition Agreement Act, G.L. c. 149, § 24L (the “Act”), changed the Massachusetts noncompete landscape by setting forth certain specific minimum conditions which must be included in any noncompete agreement in order for the agreement to be deemed valid and enforceable. One such requirement mandates that every noncompete agreement be supported by a “garden leave clause or other mutually-agreed upon consideration between the employer and the employee, provided that such consideration is specified in the noncompetition agreement.”

The Act defines “garden leave” as post-separation compensation paid to the former employee on a pro rata basis in the amount of fifty (50%) percent of the former employee’s highest annualized base salary over the 2 years preceding the employee’s termination. The Act requires “garden leave” payments to continue for the entire duration of the restricted period set forth in the noncompete agreement.

Many Massachusetts employers are simply not positioned to provide post-termination pay to their former employees. Thus, many employers choose to seek shelter in the portion of the Act that allows them to come to terms with their employees on “other mutually-agreed upon consideration” to support their proposed noncompetition agreements. However, Massachusetts Courts have yet to interpret the meaning of “other mutually-agreed upon consideration,” and employers have been largely left to guess as to what may constitute sufficient consideration to satisfy this portion of the Act.

A recent decision from the U.S. District Court for the District of Massachusetts shed new light on what may not qualify as “other mutually-agreed upon consideration” sufficient to satisfy the “garden leave” clause of the Act. In KPM Analytics North America Corporation v. Blue Sun Scientific, LLC, et al., 2021 U.S. Dist. LEXIS 132167, *96-97 (D. Mass. 2021), the Court held that a noncompetition agreement which did not contain a “garden leave” clause or specifically articulate the “other mutually-agreed upon consideration between the employer and employee” violated the Act and was not legally binding on the employee. The implication of this decision is that the employment relationship on its own does not constitute sufficient “mutually-agreed upon consideration” to establish an enforceable noncompete agreement under the Act.

While the Federal Court’s decision is not binding on state courts, it holds persuasive authority and provides some insight on how Massachusetts courts may approach this issue in the future. It will take Massachusetts courts time to outline the minimum boundaries of what may constitute “other mutually agreed-upon consideration,” but employers are on notice that it must be more than employment and should be stated clearly in the agreement.

A noncompete agreement is merely one of a variety of restrictive covenants that an employer may use to protect its business interests. Non-solicitation clauses, forfeiture clauses, and, in the medical and dental context, agreements not to treat, are examples of other types of restrictive covenants that employers may enlist which do not fall under the strict new guidelines of the Act. Employers should consult with legal counsel to discuss the best ways to utilize these tools within the context of their specific business and industry.

Pierce & Mandell, P.C.’s experienced employment and health law attorneys routinely assist clients with drafting and negotiating restrictive covenants and represent both employers and employees in litigation concerning noncompete agreements or other restrictive covenants post-termination.

If you have any questions about how this developing area of law impacts your business or employment relationship, please contact Bill Mandell, Esq. at bill@piercemandell.com, Hannah Schindler Spinelli, Esq. at hannah@piercemandell.com, or Scott Zanolli, Esq. at scott@piercemandell.com for more information.


Bill Mandell Serves on the Faculty of the Annual MCLE Hospital & Health Law Conference

Monday, November 01, 2021
Bill Mandell Serves on the Faculty of the Annual MCLE Hospital & Health Law Conference

Pierce & Mandell, P.C. Health Law Practice Area Leader, Bill Mandell, once again served on the faculty of MCLE’s Annual Hospital & Health Law Conference on October 22, 2021. He was the co-presenter on Representing Physician & Other Health Care Providers. Bill has served on the faculty of the annual conference on Massachusetts health law every year since 2003. The presentation can be access at https://www.mcle.org/product/catalog/code/2220201WVD.

Bill is also the co-author of the Chapter on "Representing Physicians and Other Practitioners” in the accompanying MCLE publication, Massachusetts Health and Hospital Law Manual, 2020 updated edition.

This publication can be found at https://www.mcle.org/product/catalog/code/2050182B00.


When is an Employer Liable for its Employee’s Conduct?

Monday, November 01, 2021

By: Mollie R. Sullivan

Pierce & Mandell’s - Mollie R. Sullivan

Respondeat Superior, a Latin phrase which directly translates to “let the master answer,” refers to the theory that an employer should be held liable for its employee’s conduct. This theory is important in personal injury actions because bringing claims against a tortfeasor’s employer allows for recovery from additional insurance coverage, with typically larger policies. Thus, a plaintiff will want to bring such claims against an employer when possible.

But when is an employer liable for its employee’s conduct? Under the doctrine of vicarious liability, an employer is liable for the torts of its employees committed within the scope of employment. Dias v. Brigham Med. Assoc., Inc., 438 Mass. 317, 319-320 (2002). In Massachusetts, the conduct of an agent or employee is within the scope of employment if: 1) it is of the kind he is employed to perform; 2) it occurs substantially within the authorized time and space limits; and, 3) it is motivated, at least in part, by a purpose to serve the employer. Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986).

The third factor, whether the employee’s conduct is motivated by a purpose to serve its employer, is typically the most contested factor of the scope of employment inquiry. A recent Massachusetts decision from the Supreme Judicial Court examined whether a police officer was acting within the scope of his employment when the officer struck and injured a fellow officer with his personal vehicle during a paid lunch break from a mandatory firearms training program. Russell Berry vs. Commerce Insurance Company, Supreme Judicial Court, No. SJC-13089, slip op. (Oct. 25, 2021).

In that case, the SJC’s determination that the tortfeasor officer was not acting within the scope of his employment turned on the question of whether the officer’s conduct was motivated, at least in part, to serve his employer. Id. at *13. Ultimately, the SJC determined that the officer’s unsafe driving (he admitted that he was driving too fast prior to striking the victim officer) did not fall within the scope of his employment because the egregious nature of the officer’s misconduct had no employment-based purpose and did not further the interests of his employer, the town. Id. However, this can be contrasted by other cases in which the SJC held that an employee’s tortious conduct was performed at least in part, to further his employer’s interests. See Orasz v. Colonial Tavern, Inc., 362 Mass. 881 (1972) (assault on patron by employee was committed “to maintain order and decorum,” which ultimately was “for the purpose of accomplishing the work of the defendant” employer); Suckney v. Bert P. Williams, Inc., 355 Mass. 62, 64 (1968) (battery was in response to event which interfered with employee’s ability to perform work for employer).

Determining whether an employee is acting within the scope of employment at the time of his tortious conduct is typically a fact-intensive inquiry. Pierce & Mandell’s experienced litigation attorneys can assist in both the prosecution and defense of such claims.


Pierce & Mandell Attorneys Recognized as 2021 Massachusetts’ Super Lawyers and Rising Stars

Friday, October 22, 2021
Pierce & Mandell Attorneys Recognized as 2021 Massachusetts’ Super Lawyers and Rising Stars

Pierce & Mandell, P.C. is proud to announce that partners Bill Mandell, Michael Fee, Bob Kirby, and Dennis Lindgren have been selected as 2021 Massachusetts Super Lawyers. Hannah Schindler Spinelli and Scott Zanolli have been designated 2021 Massachusetts Rising Stars.

Bill Mandell was recognized as a Super Lawyer in the practice of Health Care; Dennis Lindgren in Plaintiff’s Personal Injury; and Michael Fee and Bob Kirby in Business Litigation. Hannah Schindler Spinelli was recognized as a Rising Star in the practice of Health Care and Scott Zanolli in Business Litigation.

Super Lawyers is a rating service of outstanding lawyers from more than 60 practice areas who have attained peer recognition and professional achievement. Candidates are evaluated utilizing a patented process which includes twelve indicators of peer recognition and professional achievement. Rising Stars are selected through the same process but are attorneys under the age of 40, or who have been in practice for less than 10 years. No more than 5 percent of eligible lawyers in Massachusetts are named as Super Lawyers, and 2.5 percent are named to the Rising Stars list each year.


Michael C. Fee was quoted in a recent Lawyers Weekly article

Friday, April 16, 2021

Michael Fee was quoted in a Lawyers Weekly article entitled Abutters can’t block private school construction dated April 14, 2021. The article discusses a recent Appeals Court decision finding that a 50-foot wide easement that connects a cul-de-sac to a site the owners planned to develop for a private school would not be overburdened by the proposed project.


Can Massachusetts Employers Require Employees To Return To The Office?

Monday, March 15, 2021

By: Scott M. Zanolli, Esq.

With COVID-19 infections rates decreasing and the number of vaccinations increasing, many employers are beginning to recall employees back to office spaces or putting plans in place to do so. This will leave many employers wondering: what can be done if employees refuse to return to the office out of fear of the virus? Can they be disciplined? Terminated?

Understandably, some employees may be genuinely concerned about contracting COVID-19 and may express apprehension about physically returning to the workplace. However, fear of the virus alone is not likely to be a legally viable reason for refusing to return to work, and could leave employees open to discipline or termination.

Employers should not proceed without caution when determining whether to take action against employees refusing to return to work and should consider all of the reasons an employee may make such a refusal. For example, does the employee have a medical condition which leaves them especially susceptible to contracting COVID-19 or developing severe illness if they were to contract the virus?

In that instance, employers may be obligated to provide some measure of accommodation to avoid violating an employee’s rights under the Americans with Disabilities Act (ADA) or Massachusetts’s laws prohibiting disability discrimination in the workplace. Employers may subject themselves to liability, including multiple damages, punitive damages, and attorneys’ fees, if they improperly refuse an employee’s legitimate request for accommodation for their disability. Terminating an employee after denying such a request may also open an employer up to a retaliation claim.

Employers should also consider whether an employee’s unease with a return to work is caused by concern over the policies, procedures, and practices implemented by the employer to mitigate risk for spread of the virus in the workplace. If this is the case, and an employee has notified an employer of these concerns, any adverse action against the employee could again subject an employer to a retaliation claim.

Employers should have policies in place to address employee concerns about workplace safety, and also strategies to deal with difficult employee situations as they arise. Experienced legal advice is essential in guiding employers through the ever evolving regulatory landscape.

Pierce & Mandell’s experienced employment attorneys can answer questions regarding business operations, and advise employers regarding their rights and obligations with respect to their workforce.

Please contact Scott M. Zanolli at 617-720-2444 or at scott@piercemandell.com.


BIG CHANGES AT PIERCE & MANDELL, P.C.! CURT DOOLING IS NOW PARTNER, HANNAH SCHINDLER SPINELLI COUNSEL, JULIE NIEJADLIK AN ASSOCIATE

Wednesday, February 03, 2021
BIG CHANGES AT PIERCE & MANDELL, P.C.! CURT DOOLING IS NOW PARTNER, HANNAH SCHINDLER SPINELLI COUNSEL, JULIE NIEJADLIK AN ASSOCIATE

Pierce & Mandell, P.C. is pleased to announce that Curtis B. Dooling has been elected a Shareholder of the firm, effective January 1, 2021, Hannah Schindler Spinelli has been promoted to Counsel and Julie Niejadlik has been hired as an Associate.

Curt focuses his litigation practice on complex commercial and business litigation, zoning and land use disputes, health care and tort law. Curt has significant experience representing medical professionals in disciplinary and administrative hearings and he advises clients in the health care industry, including medical centers, group practices, and individual physicians and dentists.

Hannah is a senior attorney in Pierce & Mandell’s health, business and real estate law practice areas and she represents medical and dental practices, and other clients, in transactional matters.

Julie, a recent graduate of Northeastern University School of Law, will work as an associate in Pierce & Mandell’s health and business law practice areas.

We look forward to continuing to grow our expertise with these well-deserved promotions and by expanding our outstanding team of attorneys. Please join us in congratulating Curt, Hannah and Julie.


PIERCE & MANDELL GIVES BACK!

Tuesday, December 29, 2020
PIERCE & MANDELL GIVES BACK!

For our staff, lawyers, clients and friends, the holiday season is made all the more joyous by the annual Pierce & Mandell celebration at the House of Blues. Unfortunately, we were unable to host that gathering in this year of pandemic, but we are happy that we are still able to continue our annual tradition of supporting worthy charitable organizations. This year Pierce & Mandell has increased its donations in this time of need to the following organizations:

  • The Boston Marathon Jimmy Fund Walk
  • The Juvenile Diabetes Foundation
  • The Schwartz Center
  • The Ellie Fund
  • The Dana Hall School
  • Health Law Advocates
  • The Brain and Behavioral Research Foundation
  • Bridgewell
  • Buddy Dog Humane Society, Inc.
  • The Children’s Law Center of Massachusetts
  • The Payomet Performing Arts Center
  • Ron Burton Training Village
  • Natural Resources Trust of Easton
  • The Spaulding Rehabilitation Center
  • The Juvenile Diabetes Society
  • The Jewish Collaborative
  • The Leukemia and Lymphoma Society
  • WOMR
  • The Eddie & Alyce Mandell Memorial Scholarship Fund

We thank all who contributed to our success in these most turbulent times and look forward to hopefully seeing all of our clients and friends in 2021, as soon as safety allows.


Pierce & Mandell Attorneys Recognized as 2020 Massachusetts’ Super Lawyers and Rising Stars

Thursday, October 22, 2020
Pierce & Mandell Attorneys Recognized as 2020 Massachusetts’ Super Lawyers and Rising Stars

Pierce & Mandell, P.C. is proud to announce that partners Bob Pierce, Bill Mandell, Michael Fee, Tom Kenney, Bob Kirby, and Dennis Lindgren have been selected as 2020 Massachusetts Super Lawyers. Associates Hannah Schindler Spinelli, Mollie Sullivan, and Scott Zanolli have been designated 2020 Massachusetts Rising Stars.

Bob Pierce was recognized as a Super Lawyer in the practice of Civil Litigation Defense; Bill Mandell in Health Care; Dennis Lindgren in Plaintiff’s Personal Injury; and Michael Fee, Bob Kirby and Tom Kenney in Business Litigation. Hannah Schindler Spinelli was recognized as a Rising Star in the practice of Health Care, Mollie Sullivan in Civil Litigation Defense, and Scott Zanolli in Business Litigation.

Super Lawyers is a rating service of outstanding lawyers from more than 60 practice areas who have attained peer recognition and professional achievement. Candidates are evaluated utilizing a patented process which includes twelve indicators of peer recognition and professional achievement. Rising Stars are selected through the same process but are attorneys under the age of 40, or who have been in practice for less than 10 years. No more than 5 percent of eligible lawyers in Massachusetts are named as Super Lawyers, and 2.5 percent are named to the Rising Stars list each year.


Pierce & Mandell Attorney Michael C. Fee Recently Quoted in Lawyers Weekly

Monday, September 21, 2020

Michael C. Fee was recently quoted in the August 31, 2020 edition of Massachusetts Lawyers Weekly. The article, entitled: “State’s Eviction Ban Does Not Preclude Attachment of Assets”, explores recent court decisions regarding how commercial landlords and tenants are navigating the Covid-19 environment.

You can reach Michael C. Fee at mfee@piercemandell.com




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