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 understand, the business attorney will be better positioned to provide an 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 might be alleged. 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 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 MGL c151B, s3A is being considered by an employer or more general policy used in the Massachusetts business is under review, these matters should 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, as these policies may serve as the basis for a claim that the employee was terminated without cause. 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.

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 sector. Call us today.

DISCLAIMER: The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site.