Partner Chris Strang was interviewed by local CBS affiliate WCVB5 for an evening news story that aired this week. He discussed the ongoing changes in contract terms for event services in light of the changed conditions resulting from the pandemic.
On Monday, April 20, 2020, Governor Baker signed House Security Bill 4647, entitled “An Act Providing for a Moratorium on Evictions and Foreclosures during the COVID-19 Emergency.” The legislation will halt “non-essential” residential and small business commercial evictions for 120 days, or 45 days after Governor Baker lifts the COVID-19 Emergency Declaration.
Impact of the Housing Security Bill.
The bill will not relieve tenants from any obligation to pay rent, or restrict a landlord’s ability to recover unpaid rent, but is our legislature’s response to the financial hardships created by the COVID-19 pandemic. The bill halts “non-essential evictions” against residential tenants and “small business” commercial tenants. “Non-essential evictions” include evictions for non-payment of rent, those resulting from a foreclosure, “no-fault” evictions, and “cause” evictions wherein the alleged cause does not involve allegations of criminal activity or lease violations that impact the health and safety of other residents, health care workers, emergency personnel, persons lawfully on the property, or the general public. “Small business” commercial tenants are commercial tenants, both for-profit and non-profit, where the tenant (or a subsidiary company, joint venture, or other party in control with the tenant) does not operate in multiple states / nations or trade publicly, and has less than 150 full-time equivalent employees. However, commercial landlords may still commence eviction proceedings against small business tenants for an expired lease term or default, prior to the COVID-19 emergency, by the tenant under the terms of their lease.
Prohibition Against Evictions.
In suspending non-essential evictions, the housing security bill sets forth specific prohibitions against landlords, the courts, and the sheriffs / constables during the effective period. Landlords are prohibited from taking actions to terminate a residential tenancy for the purpose of a non-essential eviction, including terminating the tenancy, sending notices (including notices to quit), and requesting or demanding a tenant to vacate the dwelling. The bill bars the courts (with respect to both residential and commercial non-essential evictions) from:
- accepting writs, summonses, or complaints for filing in a summary process or eviction action;
- entering judgment or default judgment for possession;
- issuing executions for possession;
- denying requested stays of execution or continuance of a summary process action; and
- scheduling court events (including summary process trial).
Furthermore, to protect any summary process and eviction actions entered prior to the COVID-19 emergency, the bill extends deadlines and time periods for action by parties to a non-essential eviction, including answering a complaint and appealing a judgment or levy. Sheriffs, constables, and other persons who are otherwise empowered to carry out or levy upon an execution, are prohibited from enforcing or levying upon executions for possession of either a residential premises or small business commercial premises.
Notice By Tenants to Avoid Fees and Negative Credit Reporting.
The housing security bill enables residential and small business commercial tenants to avoid late fees and credit reporting if, within 30 days of missing a rent payment, they submit notice and documentation to their landlord stating that their nonpayment is the result of financial hardship from COVID-19. If the tenant provides timely notice and documentation, the bill prohibits the landlord from imposing late fees for nonpayment or submitting rental payment data to a consumer reporting agencies.
The above is a summary of the bill’s effect on evictions during the COVID-19 emergency. The above does not constitute legal advice. If you are a landlord seeking to understand your options during this emergency time or a tenant experiencing financial hardships, you should consult an experienced Massachusetts attorney to understand your rights and remedies.
Strang Scott is pleased to welcome first-year associate Meghan Hayes to the firm. Ms. Hayes is a 2019 graduate of Boston University School of Law. While in law school, Ms. Hayes worked with the New York State Attorney General’s Office, the Erie County Bar Association Volunteer Lawyers’ Project, and a prominent tort litigation firm in the greater Boston area.
Ms. Hayes hails from the Buffalo area, and earned an undergraduate degree with honors, majoring in Political Science and minoring in Mathematics at the State University of New York at Geneseo. Before starting law school at BU, Ms. Hayes completed a year of service with AmeriCorps.
At BU Law, Ms. Hayes won the best brief award in the Stone Moot Court competition, competed in the honors level Albers Moot Court competition, and also competed in the National Appellate Advocacy competition. She served on the Public Interest Law Journal and participated in BU Law’s Public Interest Program.
Ms. Hayes plans to be active in the BU Law Young Alumni Council and the Boston Bar Association. She is a recreational runner, loves road trips and is a furniture refinishing enthusiast.
Strang Scott is honored to announce the selection of Christopher Strang as a 2019 Super Lawyer by the Massachusetts edition of Super Lawyers. Mr. Strang has been recognized for his outstanding work in construction litigation for the eleventh consecutive year, first as a Rising Star and then as a Super Lawyer. Associate Jennifer Lynn was selected as a Rising Star for the first time. The Super Lawyers selection team chooses only 5% of eligible attorneys as Super Lawyers, and only 2.5% of eligible attorneys as Rising Stars. Both lists are the result of a process that includes a statewide lawyer survey, independent research, and peer reviews.
Strang, Scott, Giroux & Young, a regional business law firm, is currently seeking a highly skilled, mid-level litigation associate to join the firm’s Boston office.
Successful candidates will have:
- 3+ years of experience representing business plaintiffs and defendants in a range of commercial litigation matters
- Experience in all stages of litigation from investigation and pleadings through discovery, dispositive motions, and trial
- Excellent oral and written communications skills
- Commitment to provide high quality client service
- Ability to work both independently and as part of a larger collaborative team
- Strong academic credentials
We have a preference for associates admitted in both MA and NH, or one who is willing to become admitted in both. Some knowledge of construction law would be helpful.
We offer the ability to grow and thrive in a law firm platform designed for attorneys with long-term professional development aspirations.
Interested candidates may send a resume and cover letter to:
Strang, Scott, Giroux & Young, LLP
6 Beacon Street, Suite 305
Boston, MA 02108
Boston University School of Law recently hired partner Christopher Strang as an adjunct lecturer. Mr. Strang will be instructing the Small and Mid-Sized Firm Externship Program.
The program involves students working part-time at area small and mid-sized firms with various areas of practice. Mr. Strang will teach practical skills in the classroom portion of the program, designed to enhance the students’ abilities to excel in the practice of law at the firms for whom they work.
Check out his faculty page here: https://www.bu.edu/law/profile/christopher-d-strang/
After years of trying to find common ground on non-compete reform, the Massachusetts legislature passed a bill – which Governor Charlie Baker signed into law on August 10, 2018 – that promises to significantly change the employment landscape in the Commonwealth. The new law will take effect on October 1, 2018.
The following is a brief, non-exhaustive overview of some of the law’s most notable features:
- The law defines a non-competition agreement as an “agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended,” but excludes certain agreements from its purview, including: (1) non-compete agreements made in connection with the sale of a business; (2) non-compete agreements made in connection with the cessation or separation of employment (provided the employee is given seven business days to rescind acceptance); (3) employee non-solicitation covenants; (4) customer/client/vendor non-solicitation covenants; and (5) non-disclosure of confidential information agreements.
- Both traditional employees and independent contractors are covered under the law.
- All agreements must be in writing and signed by both parties, and must expressly affirm an employee’s right to consult with counsel before signing.
- If a non-compete agreement is signed at the beginning of an employment relationship, it must be given to the employee when the employment offer is made or 10 days before the commencement of employment, whichever is earlier. Agreements signed after the commencement of employment must be “supported by fair and reasonable consideration independent from the continuation of employment.”
- The law requires so-called “garden leave pay” or some “other mutually agreed-upon consideration.” Garden leave pay refers to an agreement in which the employer, during the course of the restricted period, continues to pay the former employee at least 50 percent of the “highest annualized base salary” that employee received within the two years preceding his or her termination. The law does not further define or elaborate upon what “other consideration” might be acceptable in lieu of garden leave pay, however. In addition, it remains to be seen whether garden leave pay constitutes sufficient consideration for those non-competes executed after the commencement of an employment relationship, or whether some consideration above and beyond the garden leave pay is required in those circumstances.
- Agreements not to compete must be “reasonable.” They can be no broader than necessary to protect a legitimate business interest; they cannot exceed one year in duration; their geographic scope must be reasonable; and they must otherwise be reasonable “in the scope of proscribed activities in relation to the interests protected.”
- Non-compete agreements may not be enforced against non-exempt employees; undergraduate or graduate students engaged in short-term employment; employees who have been terminated without cause or laid off; or employees who are 18 years old or younger.
These new requirements apply only to non-compete agreements entered into on or after October 1, 2018. Nevertheless, employers may wish to revise existing non-compete agreements for current employees in order to avoid disparities amongst employees, as well as potential future litigation.
The Boston Planning & Development Agency recently appointed partner Chris Strang to serve as a Task Force member for Article 80 reviews regarding Boston University Charles River Campus development projects.
Article 80 consists of guidelines for the development review process for unique projects. The process includes, but is not limited to, review of a project’s impact on transportation, public realm, the environment, and historic resources. Mr. Strang will serve with select other members of the community to work with BPDA managers and the BU development professionals on various projects in the coming years.
Recently, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision in G4S Technology LLC v. Mass. Tech. Park Corp., SJC-12397, regarding the forfeiture rule for construction project contractor disputes.
Previously, the trial court in G4S entered summary judgment in favor of the defendant, dismissing G4S’s breach of contract claim based on G4S’s intentional breaches of contract and its failure to strictly and completely perform all of the contracts terms. The trial court similarly dismissed G4S’s claim for damages under the theory of quantum meruit (which is an equity theory demanding the fair value of services performed or work completed), holding that an intentional violation of a contract was inconsistent with the good faith requirements of such theory. On direct appeal, the SJC considered whether Massachusetts should adopt an alternative standard to the forfeiture rule.
The SJC’s decision declines to extend the alternative standard, known as the “materiality rule,” argued by G4S in place of the Massachusetts forfeiture rule. The SJC reaffirms that complete and strict performance of the contract terms is required to recover on the contract itself. However, it further clarifies that the “complete and strict performance requirements” relate “only to the design and construction work itself” and “ordinary principles, including the traditional Massachusetts materiality rule, apply for breaches of other provisions.” The construction contract between G4S and Mass. Tech. Park was for the design and construction of a fiber networking system, meaning the contractual violations committed by G4S (submission of false certifications and withholding payment to subcontractors) do not concern that actual design or construction of the project and must be analyzed under the materiality standard, not complete and strict performance. Under this standard, the SJC still held G4S’s actions to be a material breach of the contract, stating that “paying subcontractors on time was an essential and inducing feature” between Mass. Tech. Park and G4S and “intentional misrepresentations to the government for financial gain are significant breaches of contact in and of themselves.”
With regard to quantum meruit claims, the SJC’s decision in G4S affirms that proof of substantial performance and good faith by the party seeking recovery is still necessary but overrules an older line of cases and holds “good faith now applies to the contract as a whole,” and “the intentional commission of breaches of individual contract provisions must be considered in the over-all context.” A simple standard cannot be applied to determine a ruling in equity; numerous factors must be analyzed to “balance the equities and produce a just result.” Such factors include the value of the uncompensated work, the damage caused by the breach, the total performance of both parties, and the balancing of equities to accomplish a just result. The SJC remanded G4S to the trial court for a determination of disputed facts and application of the clarified standard for quantum meruit recovery in construction disputes.
The state’s new pay equity law, which amends the Massachusetts Equal Pay Act (“MEPA”), will take effect on July 1, 2018. It is one of the strongest pay equity laws in the country, and subjects employers to double damages and attorneys’ fees in the event of a violation. Moreover, it is a “strict liability” statute. Thus, whether or not an employer intends to discriminate against employees of one gender is “irrelevant” to the analysis.
The amendments prohibit employers from, among other things:
• Paying different wages to people of different genders who perform “comparable work,” unless the difference in salary is attributable to one (or more) of six enumerated statutory factors;
• Asking job applicants about their wage or salary history;
• Decreasing the wages of an employee solely to close the wage gap;
• Retaliating against employees for exercising their rights under MEPA.
The revisions also establish a safe harbor provision for employers who perform self-evaluations of their pay practices.
What Does “Comparable Work” Mean?
MEPA defines “comparable work” as work that “requires substantially similar skill, effort, and responsibility” that is performed under similar working conditions. Employers should not assume that a job title, or even a job description, necessarily determines comparability. In fact, employees need not even be in the same business unit or department in order have “comparable” jobs. Notably, this is a broader definition than the “equal work” standard under federal law.
Even if employees are in comparable roles, however, employers are permitted to pay them different salaries if the difference is based on of one (or more) of the following factors:
• A seniority system (as long as seniority is not affected by pregnancy, parental or family leave);
• A merit system;
• A system that measures earnings by quantity or quality of production, sales, or revenue;
• The geographic location in which a job is performed;
• Education, training, or experience, as long as these factors are reasonably related to the job in question; and
• Travel that is a regular and necessary part of the job.
What Employers Should Know About the Safe Harbor Provision
In order to trigger the safe harbor provision, which establishes an affirmative defense against liability for claims of pay discrimination, an employer must have conducted a “reasonable and good faith” pay audit within the previous three years (and before an employee files an action), and must demonstrate that it is making “reasonable progress” towards eliminating wage differentials across genders.
Self-evaluations not only help employers identify and rectify wage gaps, they guard against liquidated damages in the event of a judgment against the employer, even if the evaluation was not “reasonable” in detail and scope.
Guidance for Employers
The Massachusetts Attorney General’s Office has issued a Guidance that addresses the amendments. While the Guidance does not have legal force, it is a useful compliance tool and a good place to start if you have basic questions about how to ensure you are compensating your employees equally across genders for “comparable work.” However, employers should bear in mind that “the complexity of the analysis required will vary significantly depending on the size, make-up, and resources of each employer”; the Guidance does not, and cannot, address the many fact-specific situations that may arise at any given place of employment.
In addition to the Guidance, the AG’s Office has generated a “Pay Calculation Tool” to help employers identify and evaluate gender-based pay gaps. Smaller employers with clearly defined groupings of comparable jobs and relatively simply pay structures may benefit from using the tool, at least as a first step; it is not appropriate for large pay groups or complicated pay structures. Furthermore, the data the tool generates may be discoverable in litigation or government investigations, so employers should consult with counsel before conducting any self-evaluation.