Law Offices of James Budreau

EMPLOYMENT LAW (For the Employer)

Employers are faced with an increasing array of legal issues in the workforce. These issues range from enforcing noncompete clauses to avoiding liability for sexual harassment claims or bad faith terminations. In order to avoid some of these problems, it is essential to be represented by an attorney who is both an experienced litigator and knowledgeable about legal issues in the employment forum. Although discrimination claims are not the only issues facing employers, they can tax a company's resources once they find their way into the court system. Consequently, the following will focus on discrimination claims. If you need further advice on this subject or need to consult about representation on other employment issues, contact the firm as indicated above.

If you are an employer in Massachusetts, you should attempt to be pro-active to avoid claims of discrimination. If, however, your company is faced with a discrimination claim pursuant to M.G.L. 151B or Title VII of the United States Civil Rights Act of 1964, you should be aware of the following:

EMPLOYMENT LAW (For the Employer) Employers are faced with an increasing array of legal issues in the workforce. These issues range from enforcing noncompete clauses to avoiding liability for sexual harassment claims or bad faith terminations. In order to avoid some of these problems, it is essential to be represented by an attorney who is both an experienced litigator and knowledgeable about legal issues in the employment forum. Although discrimination claims are not the only issues facing employers, they can tax a company's resources once they find their way into the court system. Consequently, the following will focus on discrimination claims. If you need further advice on this subject or need to consult about representation on other employment issues, contact the firm as indicated above. If you are an employer in Massachusetts, you should attempt to be pro-active to avoid claims of discrimination. If, however, your company is faced with a discrimination claim pursuant to M.G.L. 151B or Title VII of the United States Civil Rights Act of 1964, you should be aware of the following:
Liability	Employers are liable for the discriminatory conduct of its supervisors in Massachusetts state court, including the Massachusetts Commission Against Discrimination (MCAD) regardless of whether notice of the conduct was given by the harassed employee. In other words, you could be liable for discrimination in the work force even if you were not given an opportunity to address, resolve or mediate the problem. You can also be held liable even if you were given notice and did properly address the concerns of the harassed employee. The real question in Massachusetts is whether your damages (emotional distress and punitives) can be minimized or eliminated by proactive conduct or an exhaustive investigation which seeks to reduce the harm to the harassed employee. There have been numerous jury awards in the multi million dollar range because of employer permissiveness or inaction after being notified of the harassment. The best means to minimize the potential of a debilitating award, the negative impact on employee moral and the bad press which can follow such cases is to engage in proactive review of one's policies, supervisory behavior, employee demographics and gender/racial breakdown of the company's work force.
Proactive Review	An exhaustive investigation is necessary once notice is given of the harassment or discriminatory conduct. Corrective action must be taken as a follow up. This can take the form of reprimanding the harasser, amending policies and manuals to conform with the state of the law or performing trainings and seminars regarding offensive conduct. Proactive review of one's current employment policies, performing trainings and seminars to raise employee awareness of what constitutes discrimination or harassment in the work force and advance consultation on policy decisions are some of the ways of protecting the company from expensive litigation and embarrassing and sometimes very public accusations. It is also helpful to identify supervisors and other employees who have a history of improper conduct toward employees or clients. The "old boy network" attitude is out of step with jurisprudence in the employment arena. Many people in high ranking positions simply do not understand that their words and conduct can be often be harassing and result in discrimination suits. The cost to companies can be enormous not only financially, but can result in reputations which cause productive and talented employees to leave or prospective employees to apply elsewhere.
Public Relations	The upswing in defamation suits arising out of "public relations'" statements should cause management to be cautious in their attempt to use the media as a vehicle to fight the allegations or to influence public relations. While your attorney has a complete privilege for statements made in preparation for or the furtherance of litigation, other public statements should be limited. There are other qualified immunities which apply to employers and their agents which should discussed further with an attorney.
Defenses	Beyond arguing that the employee is either fabricating the complaint or is misinterpreting the employer's conduct, there are a number of defenses applicable to discrimination claims including bona fide occupational qualification [referred to as BFOQ] and lack of qualifications for the promotion or job. As discussed above, it is essential that the employer document its reaction to claims of discrimination and pro-actively create or revise policies to conform with state and federal guidelines.
Damages	The employer is per se liable for the conduct of its supervisory staff in state Court and before MCAD. If the discrimination arises out of conduct by a peer employee, then the plaintiff has the burden of demonstrating that the employer failed to engage in reasonable and swift corrective action. Types of damages which flow from employment discrimination include: back pay and lost wages/benefits future pay if you have been illegally terminated and circumstances make it impossible for you to cure the loss (i.e., other employment will set off losses) emotional distress awards punitive damage awards (generally for intentional discrimination or conduct which a jury decides can only be deterred by an award of monetary damages)
Other Issues	As an employer, you need to protect yourself against potential claims from employees based upon conduct which has an appearance of impropriety. The most common legal claims, other than discrimination claims, are those relating to wrongful terminations and burdensome contract clauses. The following is a list of common legal problems facing employers in the work force: wrongful termination prior to vesting in stock options or other employee benefit payouts courts interpreting employee manuals as providing benefits or rights to the employee non-compete clauses bad faith terminations defamation suits arising out of employer's public relations tactics
Obviously, there are many other employment issues beyond those listed above. If you are interested in meeting with Mr. Budreau to determine if his firm can assist your company in either resolving existing employment issues or avoiding future ones, feel free to call him at (617)227-8558.
Notice: The above is a broad overview of discrimination in the work force. This information should not be relied upon in making any decisions regarding your legal rights. You should always consult with an attorney before determining what your legal rights and remedies are.