Today there is an online solution for just about everything. But, do the online services that propose to offer startup businesses formation advice, policy and procedure, employment contracts, standard business forms, and other relevant business documentation really have everything needed to run a Massachusetts business?
The answer is…NO.
What an Attorney Adds to a Massachusetts Business
I have found that many clients have a sneaking suspicion that the online bylaws they purchased or the 200 page policy and procedure that is now in use in their Massachusetts business are not quite up to par, or if they are adequate, the business is left without support. Simply put, many Massachusetts business owners do not understand their bylaws, how policy and procedure is integrated with Massachusetts laws and regulations, and generally have many more important questions but no one to ask.
Elephants and Massachusetts Business
The elephant in the room is the price. Most business owners only turn to an attorney when their hair is on fire. This is understandable as many attorneys do not provide a clear cost-benefit analysis for their clients. A good business attorney should provide you, and sell you on the idea frankly, that they will provide a needed service to your business. While at times a modest retainer may be appropriate, there exist many other ways to deal with the cost of attorney services. A good attorney should be able to discuss price with you directly.
The Audit of the Massachusetts Business
The first bit of value that a business attorney should add is a thorough audit of existing policy and procedure, forms in use in the business, signage throughout the business, and any other documentation used by the business. The reason for a thorough audit is to understand what is currently being used by the business. Once understood, the business attorney will be better positioned to provide a liability analysis – pinpointing areas of concern, and explaining which of these areas require fixing and why.
At-Will Status and the Massachusetts Business
One of the concerns of an employment or business lawyer in Massachusetts is attempting to discern if the business is taking advantage of the at-will status of Massachusetts law with respect to employees or if the default at-will status is being affected by actual business practice. For example, many employers believe that since they have no written contract between employees and their business, that the relationship with that employee is at-will (meaning the employee can be terminated at any time and for any reason).
While it is true that Massachusetts is an at-will state, and that businesses in Massachusetts generally can terminate an employee at any time and for any reason in theory…..in practice, there are many considerations which may change this at-will status. One common concern for the business attorney is whether an employee might claim that an oral or implied contract exists. There are strategies that the business attorney can employ to reduce the likelihood of such an allegation being successful in a Massachusetts court. Contact our offices for more information on this subject.
When an Employment Contract Exists
Massachusetts business owners will frequently wonder about creating an employment contract. Is it a good idea? Is it necessary? The answer to these questions may be “no” in some circumstances and “it depends” or “yes” in others. In the instance where an employment contract is a good idea, the terms and clauses within that contract are key….an online platform is not going to have the tailored solution that a good business attorney will have.
Key Employment Contract Phrases
Contract Language – At-Will
One of the first aspects of an employment contract in Massachusetts would be to include language which makes clear that the contract is for at-will employment. While stating expressly that the contract is an at-will employment contract does not guarantee that if brought into court a Massachusetts judge would find that no contract exists…it certainly may help persuade the judge that the relationship between the employer and employee is an at-will relationship.
Confidentiality Clause
In either a separate agreement or included as a clause within the at-will employment contract, confidentiality should be addressed. Such a clause is imperative to establish what information is confidential, what happens in the breach of confidentiality, etc.
Noncompete Agreement
An agreement to noncompete, whether separate or included as a clause within the at-will contract may be essential to Massachusetts businesses seeking to protect trade secrets and other legitimate business interests. A noncompete agreement is NOT something which should be purchased randomly online, particularly since changes made by the Massachusetts Legislature in 2018 (the Massachusetts Noncompetition Agreement Act) have created very specific notice requirements, language inclusions and other considerations that make a noncompete agreement enforceable in a Massachusetts court.
Company Property
Clauses should consider how company property is to be disposed of upon the termination of the employee.
Policy and Procedure for a Massachusetts Business
Whether the drafting, posting, or implementation of key policy such as nondiscrimination and sexual harassment policy and procedure which comports with M.G.L. c. 151B, § 3A is being considered by an employer or more general policy used in the Massachusetts business is under review, these matters should be audited by a business attorney. Policy and Procedure, though boring, is the lynchpin which serves as the central proof of how the business conducts its affairs. Such documentation also serves as the basis of defense against various claims, and as the point of attack for plaintiff’s attorneys.
Discipline in the Massachusetts Business
Another key component for the business attorney to examine is the disciplinary policy in use at the business. Disciplinary policies, if used by a Massachusetts business, must be followed to a tee. A policy the employer doesn’t follow can be used to argue that it created an implied contract, or that the stated reason for a termination was a pretext. See our article on the limits of at-will employment in Massachusetts. Contact our attorney for more information.
Termination, but with Investigation
Although technically not required, because of the involvement of so many state agencies when discrimination, and other allegations are made against a Massachusetts employer, an investigation should be conducted by the Massachusetts business. A careful, documented process also helps defend against retaliation claims.
Document, Document, Document
Keeping clear and frequent records as a part of normal business practices is crucial to liability protection. On the other hand, the quality of documentation must be good and ideally, contain no extraneous information. Documentation considerations are affected by the type of business as well, as regulatory agencies, licensing authorities, and accreditation bodies may have specific requirements to consider.
Support from a Business Attorney
The issues addressed in this article are just a few of the considerations that a business in Massachusetts must contemplate. Consider working with a business attorney in Massachusetts that has a great deal of personal experience owning, operating and working with Massachusetts businesses in many business sectors. Call us today.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on business compliance, contracts and employment practices. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
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