Let's face it, we are not always at our best.  And yet we still have birthdays, and the people who love us celebrate with us.

If we are honest with ourselves, there is at least one year, if not more, in which we were difficult for those around us.  Whether we were tantruming toddlers, angsty adolescents, young adults searching for traction in life,  having a mid life crisis, or in the middle of some other difficult time.

And in those years, people in our world might have had to squint a little to see the building blocks of a good human that had come before, and the promise for the things that come after, hidden behind the chaos of the moment.  Yet they still sang happy birthday, gave us presents, showed us love.

This is how I feel today.  All that is easy to see is a citizenry that seems to live in at least two if not more entirely separate universes and cannot hear each other at all, a series of potentially devastating Supreme Court decisions that only serve to increase the polarization, and a profound lack of a shared vision for who we are.

Among other things adding to the noise, the chaos, and the worry that we are not who we need to be right now to face the challenges to come: war in the Ukraine, mass shootings, climate change, inflation without real economic growth, and a pandemic that is not yet over.

And yet.

If I squint in just the right way, I can see the building blocks, as well as the promise for the future.  If we do not burn it down, or begin selectively choosing which parts to honor, we have a pretty remarkable balance of power in our government that should allow us to continue to evolve in a rationale and principled way.  We actually have the ability and the knowledge to solve a great deal of the problems we face, if we can find the collective will.

If we had some way to check in with every resident of this country, I think we would find most people have a better capacity to hear each other and work together than we are currently led to believe.

As Albert Camus once wrote:

"I should like to be able to love my country and still love justice."

I am determined to do both, but it requires all of us to be the people at the birthday party and after who see and hear beyond the chaos, and who can help guide this birthday child in the future.

Happy birthday, America- I love you anyway.

This is not my usual law firm blog post.  I usually keep my personal beliefs about state and national affairs at arms-length from what I post on behalf of my law firm.

But I believe that these kinds of personal rules do not exist to guarantee they are never broken- they exist so that we are intentional about crossing a line, and only do so if it is important and the right thing to do.

And right now I believe that breaking this rule is both important and the right thing to do.

So that I don’t bury the lead, and lose you in a deep dive into the recent Supreme Court decision overruling Roe v. Wade, here is why you need to keep reading: unless you are one of the surprisingly few people who are not currently protected by federal laws on a wide range of matters including discrimination and wage and hour laws, you should be at least as concerned about what comes next as anyone else.

The reason for this little history lesson is this: if we are to accept Justice Thomas’ invitation to strip the Constitution to its studs, the majority’s insistence that fundamental rights are only defined by our values 150 years ago, and the majority’s conclusion that precedent can be overturned so lightly, we may be left with a system in which we have overturned the Commerce Clause justification for federal action to create uniform rules that protect workers, and all of these protections which have been part of the fabric of our lives for multiple generations could vanish.

This would not just be two Americas, but potentially 50. 

You may be reading this and saying to yourself, well, maybe that’s not so bad.  Maybe that is elevating states’ rights and curbing federal government overreach.  Maybe that is what you believe in. 

I understand.  This debate is not new.  The one about organizing a nation around varying policies enacted by each of the states as a pure form of democracy versus having some level of authority applicable to the entire nation that acts as a backstop, safety net, or protector of certain rights.  Our founders debated this among themselves, vigorously and articulately.

But I am asking us, even for just a minute, to step away from that ideological divide and ask ourselves whether we value the world that we, our parents, and for most of us our grandparents, have lived their lives in.  Whether we value the fact that there is some set of things- rights, basic economic safety nets, some version of equality- that are not entirely optional based on what state you live in or how the political winds blow in that state.  Because this is what is at stake.

For me, I do value these things.  Personally and professionally.  I think about the thousands of people we have helped over the years with employment issues.  To name a few:

• The older workers cast aside less than ten years from retirement in favor of younger, less expensive employees. 
• The people with serious health conditions who are marginalized and pushed out of jobs without any attempt to accommodate them.
• The women who crash into the glass ceiling and lose their jobs, or endure sexual advances or innuendo in the workplace with no action by management to protect them. 
• The women who start families at the peak of their career and are never allowed to regain traction at work when they return (yes, there is irony to this one, under the circumstances).
• The people of color who face daunting assumptions and profiling, uneven discipline and termination, and also sometimes racial harassment, in the workplace.
• The workers of all races, genders, ages, and health status who have to fight to be paid the basic living wage they are currently owed under the law.

It is hard for me to imagine greeting any of these people in a world where I have no tools to help them, and where our laws have no answer for them.  We know what they went through, and what having a way to stand up for themselves meant to them.  It is hard for me to think about our country and explain why there should be at least these basic protections in some places and not others.

This is why the question of reproductive rights may not be the only critical implication of the recent Supreme Court decision, as important as that piece of it feels to so many of us right now.

I am not asking you to sign a petition, support a particular party or candidate, or really do anything affirmative. I am actually unsure what the best thing to do is right now.

I am just asking that you pay attention, because this decision and whatever comes after it may change way more than you understood, and affect you or your family in ways you had not considered.

And I am also reminding you that this is what we do- protecting people from discriminatory or oppressive conditions to the extent we are able under the law.  We will be here for you no matter what. 
 
Peace,
Emily
 ​

If you live or work in Massachusetts, and signed your non compete on or after October 1, 2018, your agreement is subject to the requirements of the new non compete statute.  These requirements include: (i) a provision to pay you half your highest base salary for the duration of the non compete; and (ii) evidence that you were given ten days to review the agreement before signing, and advised to consult with counsel.  Additionally, agreements subject to this law cannot be enforced against you if you are non-exempt from overtime or if you are terminated without cause.

Even if your agreement is dated before October, 2018, there are many opportunities to question enforcement.  First, enforcement must be necessary to protect a "legitimate interest" of your employer.  This basically means it needs to protect either the employer's confidential information or its good will (usually in a sales context, the customer relationships you have developed by working at the company).  Simply not wanting you to leave because it would be difficult to replace you is not a legitimate interest for purposes of a non compete.

Second, the length of the restricted period, or the geographic scope, could be unreasonable in light of the interests the employer is trying to protect.  Anything over a year, or that extends to a broader territory than you actually worked in, could be subject to challenge on this basis.

Finally, there are things your employer could have done to call the agreement into question.  Examples include failing to live up to its agreements with you, or significant changes in your compensation or responsibilities after signing the original agreement.

If you are thinking about leaving your job, it is best to speak to an attorney before you accept another offer and give your notice.  What many people don't realize until it is too late is that their new employer might rescind the offer if they are threatened with litigation over a non compete.  The employee then finds themselves out of their old job but without a new one to go to.

In contrast, if you know your rights ahead of time, you can make an informed decision not only about giving your notice, but also how you discuss the matter with your prospective new employer.  This way you will know before you quit whether the new employer will stand by you in the event of a dispute, or whether you will be out of a job if your old employer threatens suit. 

This may come as a simple email from your boss or Human Resources.  It could also be a cease and desist letter, usually written by a lawyer demanding that you stop doing what you are doing (i.e., taking the new job).  Neither of these require you to respond.  They also don't necessarily mean that your employer is going to take the next step and file a lawsuit.

However, it is almost always a good idea to consult an attorney as soon as you receive a threat of a lawsuit.  Not only can this help give you clarity and often peace of mind about your level of risk, but it is also a great opportunity to negotiate a resolution with your former employer that will allow you to take the new job and address any legitimate concerns they may have.

We offer a flat fee review of your agreement, as well as negotiation with your employer and, if needed, litigation defense.  It starts with an initial call, which is absolutely free.  Just click the button below to schedule a call back from a member of our team, or call us directly at (781) 784-2322.

A full return to a physical workplace creates many new complications for both employees and employers. 

First and foremost will be compliance with the various orders and advisories regarding COVID-19 safety.  The Commonwealth of Massachusetts has issued general safety standards applicable to all workplaces.  These standards address the level of occupancy allowed in a building, distancing requirements, face covering requirements and cleaning and sanitation.  There are also more specific standards for certain industries, which cover a broad spectrum of businesses that have re-opened or are re-opening.  If you are returning to work in a physical location, you should review these standards so you can know what to look for in your workplace.

Some employers are also instituting "temperature checks" to screen workers as they arrive at work for possible infection.  This is not something most employees ever had to contend with before COVID.  It is likely to feel intrusive, but is probably lawful.  There is a limit, however, to how much information about your health your employer can or should ask for, particularly if you have an underlying condition that might qualify as a disability or a perceived disability.

The new federal paid sick time rules have also caused some confusion in the context of re-opening.  The Families First Coronavirus Relief Act (""FFCRA") requires employers to provide up to two weeks of paid sick time for employees who either have COVID or are under government or medical orders to quarantine.  Massachusetts law also requires a certain amount of paid sick time if your employer has 11 or more employees.  If you are sent home as a result of a temperature screening at work, you most likely are entitled to be paid for that time, at least until you can get tested and receive the test results.

The same is true if you get a COVID test because you believe you have been exposed.  Many doctors will recommend that you quarantine at least until the results come in, and sometimes longer.  If the reason for the test is possible or likely exposure, this time should be covered as paid sick time.  However, some employers are having all employees in certain roles take a COVID test as a preventive screening measure.  It is not clear that time spent in quarantine awaiting results, even if on a doctor's orders, counts as paid COVID sick time, or that your job is protected if you stay out of work waiting for results.

If you are asked to return to a physical workplace and you have a medical condition that puts you at high risk for COVID complications, you may be able to request reasonable accommodations to keep you safe.  These could include working in a less populated area of the office, protective equipment such as plexiglass shields or N95 masks, or a staggered work schedule to avoid unnecessary contact with others.

If your concern is about a medically vulnerable family member at home, existing law does not provide the same protection.  This is because at present there is no legal basis to ask for an accommodation to protect someone other than you with a disability. 

Another consideration is what happens if you return to work and notice and report non-compliance with COVID safety guidance.  You may report to a manager that mask rules are not being enforced, or distance requirements not observed, or cleaning not being done as required.  This activity is not expressly protected under existing law, but may be considered by a court to be a form of "whistleblowing" that could protect you from retaliation.