Foley Hoag LLP

SUMMARY

We know that the recent financial crisis and related economic downturn unfortunately are causing many employers to consider ways to reduce operational expenses, including through workforce restructuring and layoffs. We offer a few preliminary considerations: any such reduction-in-force (RIF) must be carefully planned and executed both to minimize exposure to liability under various employment laws and to mitigate negative effects on employee morale and operations. The following are some issues for employers to consider as they grapple with whether and how to implement a layoff.

Questions Include:

• Is a Layoff Necessary?
• Voluntary or Involuntary Program?
• Develop Uniform Selection Criteria
• Conduct a Layoff Analysis
• Is Advance Notice Required
• Severance and ERISA
• Asking for a Release
• Don't Forget Immigration Implications
• Don't Lose Sight of Termination Basics

SUMMARY

On October 31, 2008, the Department of Energy Resources (“DOER”) issued its Imports Feasibility Study (the “Report”), finding that it is not feasible to implement a capacity commitment or netting requirement for generators seeking renewable energy credits (“RECs”) in Massachusetts for energy imported into ISO-NE. The Report is mandated by subsection 105(g) of the Green Communities Act (the “Act”), which directs DOER to determine the feasibility of implementing two subsections, 105(c) and 105(e), governing the eligibility for RECs for energy imported from outside the ISO-NE control area. Subsection 105(c) would have required an importer to commit its capacity to the Forward Capacity Market (the “FCM”). Where an entity has generation assets both inside and outside ISO-NE, subsection 105(e) would have netted the entity’s energy exports against renewable energy imports when calculating the number of RECs that may be sought. Although the Report concluded that both provisions are not feasible to implement as drafted, it proposed a series of recommendations designed to capture what DOER believes is the policy behind those subsections. Those recommendations may appear as part of DOER’s new regulations governing renewable portfolio standards (“RPS”), due to be promulgated by January 1, 2009. Although the contours of those regulations are unknown, the Report’s proposals indicate potential new business opportunities and regulatory risks for renewable energy generators.

SUMMARY

Chapter 151B, the Massachusetts anti-discrimination statute, does not apply to small employers, meaning those with fewer than six employees. However, last Friday, the Massachusetts Supreme Judicial Court (“SJC”) held that an employee may nonetheless sue a small employer for discrimination under the Massachusetts Equal Rights Act. The decision has potential ramifications for all employers -- large or small -- because it suggests that a plaintiff has a claim for discrimination under the Massachusetts Equal Rights Act whenever Chapter 151B does not apply, such as discrimination claims brought by non-employees.

SUMMARY

Foley Hoag LLP’s interdisciplinary team counsels and protects the interests of its clients facing new realities, challenges and risks framed by today’s tumultuous economic and market conditions. By maintaining an active and engaged dialogue with our clients during this period of economic distress, our lawyers are better able to adapt to the changing legal needs of clients affected in the short term. More importantly, our immersion in their businesses and industries enables our lawyers to provide sound, strategic counsel to protect our clients’ interests in the longer term. The Economic Crisis Team delivers forward-thinking advice, focusing on long-standing core, integrated strengths of the firm.

Topics include:

• Financial investigations, enforcement proceedings and litigation
• Federal and state securities regulation
• Deal-making, corporate finance and investment restructuring
• Bankruptcy, corporate reorganization and financial disputes

SUMMARY

Contents

1. Exposure to Liability in the Hiring Process

2. Failure to Adequately Document Terms and Conditions of Employment

3. Misclassification Issues
    - Employee or Independent Contractor
    - Exempt or Non-exempt

4. Failure to Comply with Wage Payment Laws

5. Inadequate Protection of Intellectual Property

SUMMARY

Established in December 1980 by the partners of law firm Foley Hoag, The Foley Hoag Foundation is a private foundation that seeks to combat racism, especially among youth, in the City of Boston. The Foundation awards grants to organizations working to improve the racial climate in Boston by addressing issues of diversity and racism. Grantee organizations achieve their goals through a variety of means, including arts and cultural activities, youth leadership and recreational programs. Other grantees provide advocacy assistance, enabling individuals to confront racism through legal or political action. Some grantee organizations work to prepare young children to live in the reality of a multicultural society, others engage teens, and a few target a primarily adult constituency.

The Foley Hoag Foundation was the first—and remains the only— foundation to focus exclusively on the improvement of race relations in Boston. The trustees are fortunate to have the unqualified endorsement of Foley Hoag, which has provided an enormous amount of financial, administrative and moral support.

SUMMARY

Until now, most small tax-exempt organizations, defined as those with gross receipts of $25,000 or less per year, have not been required to file an annual information return with the Internal Revenue Service (the “IRS”). 

However, small tax-exempt organizations must now file an annual electronic information return – the Form 990-N, also known as the e-Postcard. This requirement covers all tax periods beginning after December 31, 2006. The e-Postcard must be filed no later than the 15th day of the 5th month following the end of the organization’s tax year. For example, an organization whose tax year ends December 31 must submit the e-Postcard by the following May 15.

SUMMARY

Yesterday, the U.S. Environmental Protection Agency published its long-anticipated formal determination on California's request to waive federal preemption of its automobile emissions standards for greenhouse gas emissions ("GHGs"). Although the ultimate fate of the EPA's determination will almost certainly be decided by the courts, the dispute between California and the EPA highlights the tension between state and federal efforts to regulate GHGs.

SUMMARY

Excerpt:

Corporate globalization presents companies with unanticipated risks and challenges. Businesses are held to higher standards of accountability with respect to social, environmental and ethical practices. Companies unresponsive to these demands risk damage to their reputations, brand image and competitiveness. We help savvy business leaders limit their companies’ risk by incorporating internationally recognized standards into their strategic planning, crisis response strategies and relationships with stakeholders.

Benefits of our counsel include:

• Reduction of threat to corporate reputation
• Reduction of legal risks associated with the uncertainties of globalization
• Enhanced brand image
• Increased customer and employee loyalty and retention Improved relationships with external stakeholders and public opinion leaders

Download the Foley Hoag Corporate Social Responsibility Brochure (.pdf)

SUMMARY

Massachusetts has significantly amended its waterways statute, Mass. Gen. Laws Chapter 91, clarifying the authority of the Department of Environmental Protection (DEP) to issue licenses for construction or development on “landlocked tidelands.” The amendments are important to anyone developing or owning property that is now or was formerly subject to the ebb and flow of the tides, even if that land was filled in decades or centuries ago.

In February 2007, the Massachusetts Supreme Judicial Court ruled in Moot v. Department of Environmental Protection that DEP acted without sufficient legislative authorization when it granted the developer of the NorthPoint project a license to develop a large parcel in Cambridge that was located partially on filled -- and now “landlocked” -- tidelands. Tidelands become landlocked, according to the definition provided in Chapter 91, when they are separated from “flowed” tidelands by a public way and filled in. Many tidelands thus landlocked have historically been built upon as reclaimed land; although the most prominent landlocked tideland in the Commonwealth is Boston’s Back Bay, landlocked tidelands exist in numerous other communities, including Gloucester, Salem, and New Bedford.

The Court agreed with the Moot plaintiffs, noting that Chapter 91 requires DEP to “preserve and protect” the public’s rights in tidelands, and that those public rights can only be relinquished or extinguished by the Legislature. The Court held that while DEP was authorized to license “non-water-dependant” uses of tidelands, it could only do so if such a use constituted a “proper public purpose.” While declining to determine what precisely constitutes a “proper public purpose,” the Court held that the failure to hold a public hearing regarding whether proper public purposes existed meant that DEP had failed to meet its statutory mandate. In particular, the Court explicitly invalidated the DEP regulations (310 Code Mass. Regs. § 9.00 et seq.) that categorically exempted “landlocked tidelands” from licensing and public review requirements.

Following the Court’s decision, there was extensive public concern that both ongoing and existing developments on landlocked tidelands -- which had proceeded pursuant to the Court-invalidated DEP regulations -- could themselves be declared in contravention of Chapter 91, thus complicating further development and potentially clouding hundreds of property titles. By some accounts, over 3,000 acres of landlocked tidelands currently exist within the Commonwealth. After lengthy discussions involving Governor Deval Patrick, the Legislature, and interest groups, the Legislature responded to the Moot decision by passing legislation meant to redress the authority of DEP to license and oversee development on the Commonwealth’s tidelands. This legislation, entitled “An Act Relative to the Licensing Requirements for Certain Tidelands,” was signed into law by Governor Patrick on November 15, 2007.

SUMMARY

Massachusetts has become one of the first states in the nation to require developers of certain projects to quantify and mitigate greenhouse gas (“GHG”) emissions. On October 19, 2007, the Executive Office of Energy and Environmental Affairs (“EEA”) issued the final MEPA Greenhouse Gas Emissions Policy and Protocol (“GHG Policy”), available here (.pdf). Projects subject to the policy for which developers submit an Environmental Notification Forms (“ENF”) or Expanded Environmental Notification Form (“EENF”) after October 31, 2007 must include GHG quantification and mitigation pursuant to this policy. The MEPA office will also review Notices of Project Change submitted after October 31st on an individual basis to determine whether the project will be required to comply with the policy.

The Massachusetts Environmental Policy Act (“MEPA”) requires developers of projects with significant direct air emissions or transportation impacts to prepare and file Environmental Impact Reports (“EIRs”). The GHG Policy does not make any changes regarding what projects are subject to the EIR filing requirement. Instead, it requires certain projects already subject to the EIR requirement to quantify the potential greenhouse gas (GHG) emissions caused by the project, and identify measures to avoid, minimize or mitigate such emissions.

Although the policy requires quantification of both GHG emissions and any proposed mitigation, the EEA has emphasized that 100% certainty in projections is not required. EEA has also stated that the GHG Policy is not intended to create a numerical GHG emission limit or reduction target. However, EEA has provided an appendix with a very detailed list of potential mitigation measures. Only time will tell how flexible EEA will actually be concerning what types of mitigation will be required under the GHG Policy.

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in the Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation.

SUMMARY

Brief of Amici Curiae Texas Municipal League, American National Standards Institute, National Fire Protection Association, America Society of Heating, Refrigerating and Air-Conditioning Engineers, NSF International, Institute of Electrical and Electronics Engineers, America Institute of Steel Construction, American Society of Civil Engineers, and International Association Plumbing and Mechanical Officials in Support of Petitioner