The In-House Advisor

  • Is Your Website ADA Compliant, and Should It Be?May 30, 2018

    The Americans With Disabilities Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Over the past few years, innumerable lawsuits have been brought against universities, banks, and businesses, claiming that they have engaged in unlawful discrimination under the ADA because their websites (1) act as “places of public accommodation,” and (2) are not fully accessible to people with visual impairments. (Often, these lawsuits concern the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website into audio, if there is no subtitle to a non-text picture or image, that user would have no way of knowing that a picture or image exists, let alone what it might be.)

    While there have been cases holding that websites are not places of public accommodation, the trend seems to be otherwise. Some jurisdictions hold that a website may be a place of public accommodation if there is a connection between the site and a physical location. See, Keep reading

  • Don’t Risk Having an Equivocal Forum Selection ClauseMay 10, 2018

    As I discussed in a 2015 blog post, the language in a forum selection clause is critical if you want to ensure that potential litigation takes place on your “home court.” Indeed, as the defendants in Genis v. Campbell recently learned, having a less than all-encompassing and precise forum selection clause can lead to unintended results.

    Alfred Genis is a Massachusetts resident and a diamond laboratory scientist. In 2013, Genis met Martin Campbell, who, along with his brother, David, owned Pure Crystal, a company involved in growing laboratory diamonds. In October of that year, the three individuals executed what would later be referred to as the “October 2013 Agreement.” That Agreement indicated that Genis would be granted 25% equity in Pure Crystal and also would receive equity in two new companies to be formed. In that same month, the Campbell brothers formed the first of those companies, Kimberlite Applied Science, LLC, and Genis executed an “Employment Agreement” and a “License Agreement” with Kimberlite.

    By 2017, the relationship between Genis and the Campbells had broken down, and Genis filed suit in Massachusetts Superior Court, alleging that his intellectual property had been misappropriated and that he had not been granted … Keep reading

  • Massachusetts Pay Equity Law Bans Salary History Inquiry, and So Much MoreApril 19, 2018

    The Act to Establish Pay Equity, amending G.L. c.149, §105A (MA Pay Equity Law), goes into effect July 1, 2018. All employers, regardless of number of employees, whose employees perform all or the greater part of their work in Massachusetts, are required to comply with the MA Pay Equity Law.

    One of the law’s notable aspects is that a potential employer cannot ask a job candidate what his/her prior salary history is. Many employers regularly ask job candidates what they make as a way of gauging whether they can meet the compensation expectations of a job candidate or, in some cases, trying to determine the least amount of pay to offer. In this day of networking, management-level employees may also receive job inquiries from potential candidates, and it is not uncommon for managers to ask, “How much are you making now?” as a threshold question, to determine whether the inquiry is worth passing on. Unfortunately, if such benign questions are asked, the candidate may bring a legal claim for violating the MA Pay Equity Law.

    With such a low threshold to assert a legal claim, what should you do? First, make sure all employees know that, under no … Keep reading

  • Pregnant Workers Entitled to Special Accommodations in MAApril 03, 2018

    Effective April 1, 2018, for employers with six or more employees, Massachusetts’ prohibitions on discrimination in the workplace have been expanded to prohibit discrimination on the basis of pregnancy and pregnancy-related conditions. The Pregnant Workers’ Fairness Act specifically makes it unlawful to discriminate against an employee based on lactation or the need to express breast milk for a nursing child. Further, if an employee requests an accommodation for pregnancy or a pregnancy-related condition, an employer will be required to engage in a timely, good faith, “interactive process” to determine an effective, reasonable accommodation that enables the employee to be able to perform the essential functions of her position, just as an employer is required to do for an employee with a disability.

    Reasonable accommodations under the new law include:

    • more frequent or longer paid or unpaid breaks;
    • time off to attend to a pregnancy complication or recover from childbirth;
    • acquisition or modification of equipment or seating;
    • temporary transfer to a less strenuous or hazardous position;
    • job restructuring;
    • light duty;
    • private non-bathroom space for expressing breast milk;
    • assistance with manual labor; and
    • a modified work schedule.

    Although employers are allowed to seek medical verification for certain types of accommodations, medical Keep reading

  • The Attorney-Client Privilege When Non-Party Experts Are Part of the CommunicationsMarch 22, 2018

    It is not unusual for business people and/or in-house counsel to consult with accountants or other non-party experts when contemplating a potential business transaction. As the defendants in The C Company, Inc. v. Hackel recently learned, however, trying to protect such communications from disclosure based on the attorney-client privilege can be difficult, if not impossible.

    In The C Company, attorney Todd Goldberg represented Michael Hackel and Dining-In, Inc. in connection with a 2008 transaction with The C Company and Nicholas Cercone. During negotiations, an employee of The C Company emailed a draft agreement to the company’s outside accountant, and asked him to evaluate the tax implications of the contemplated transaction. The accountant provided that advice, after which Attorney Goldberg and the accountant exchanged their own emails so that Attorney Goldberg could better understand the accountant’s viewpoint. After litigation related to the transaction was filed by The C Company and Cercone, they sought to discover all of the foregoing communications, and the defendants took the position that such communications were protected by the attorney-client privilege. In analyzing the matter, the Superior Court Judge began by stating that:

    Massachusetts recognized the so-called “derivative” attorney-client privilege. Under this doctrine, the attorney-client

    Keep reading

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