Employee Handbooks – Best Practices and Potential Pitfalls (Presented by the Federal Bar Association Labor & Employment Law Section)

David A. Michel, Partner | Sherin and Lodgen LLP

David A. Michel assists clients in resolving complex employment, business, and real estate disputes.

A partner in Sherin and Lodgen LLP’s Litigation Department, his experience includes representing companies and individuals in a variety of complex civil and commercial disputes in federal and state court and through alternative dispute resolution. In particular, David represents clients and organizations in employment matters involving restrictive covenants, discrimination, wrongful termination, and wage and hour litigation. He also represents companies, developers, property owners, and landlords involved in commercial and real estate disputes, including adverse possession, breach of contract, brokerage, and zoning matters.

Prior to joining Sherin and Lodgen, David was a Staff Attorney for the Committee for Public Counsel Services’ Public Defender Division. After receiving his Bachelor of Arts from The George Washington University in 2006, David returned to his native Massachusetts to pursue a career in law. David received his J.D. from Boston University School of Law in 2011, where he served as submissions editor for the Boston University Public Interest Law Journal and achieved honors in the Litigation and Alternative Dispute Resolution Concentration.

Jack Blum, Shareholder | Polsinelli

Jack Blum is an experienced employment law advisor and litigator. Jack has extensive experience defending employers against all manner of claims by their employees in federal and state courts, as well as before government agencies like the OFCCP, EEOC, and state human rights commissions, including:

• Employment discrimination, harassment, and retaliation
• Non-compete, trade secret, and restrictive covenant litigation
• Wage and hour class and collective actions
• Employment contract and wage payment disputes involving highly-compensated employees
• Independent contractor/employee misclassification claims and audits

Jack particularly focuses on representing government contractor employers. Jack guides clients through OFCCP audits, framing the client’s hiring, compensation, and other personnel practices and data to preemptively address potential OFCCP concerns to avoid extensive agency inquiries. When OFCCP does challenge a client’s practices, Jack has successfully defended against OFCCP’s claims of discrimination. Jack also advises contractors on compliance with their obligations under the Davis-Bacon Act, Service Contract Act, and a wide range of FAR and DFAR clauses.

Jack also frequently represents parties in employee mobility litigation, including claims involving non-competition, non-solicitation, and confidentiality agreements, trade secret misappropriation, and business torts asserted against former employees and competitors that hire them. As employers face significant competitive harm from an employee’s theft of customer or technical information, Jack is prepared to take immediate decisive action to obtain a temporary restraining order preventing improper competition. Significantly, Jack has experience in both prosecuting and defending employee mobility claims and is able to offer clients a well-rounded assessment of their options and courses of action.

Jack also works closely with in-house counsel, human resources personnel, and business executives to craft compliant personnel policies that meet the client’s business requirements. Jack advises clients regarding employee/independent contractor classifications, onboarding employees subject to restrictive covenants, reductions in force, and internal investigations of sensitive harassment and potential whistleblower allegations. Jack also walks clients through sensitive terminations to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

James Noel, Counsel | McConnell Valdés LLC

James Noel is Counsel, Labor & Employment Law Practice Group for McConnell Valdés LLC. Mr. Noel has provided advice and has represented employers in all areas of federal and Puerto Rico employment law.

Mr. Noël has vast litigation experience in both state and federal courts. His initial assessment to clients is based on years of experience and takes into consideration the nature of the claims, the opposing counsel, the state-court judge, and the potential exposure of a jury trial, among other criteria.

Mr. Noël has handled matters involving more specialized knowledge than the usual employment case, such as the Railway Labor Act, the National Labor Relations Act, the Federal Arbitration Act, ERISA, and COBRA. He has also served as counsel in cases before the U.S. District Court for the Southern District of Florida and the U.S. District Court for the Central District of California.

In addition to litigation, Mr. Noël has handled numerous due diligence matters, including the purchase or sale of businesses in Puerto Rico, as well as labor and employment audits.

He is the Past-President of the FBA, Puerto Rico Chapter; former Treasurer of the Labor and Employment Law Section of the FBA national; Vice-Chairman of the Counsel of Past Presidents of the FBA Puerto Rico Chapter; a Fellow of the Foundation of the FBA; and a member of the Board of the Labor and Employment Section of the FBA.

Mr. Noël provides advice to Corporación La Fondita de Jesús, a non-profit organization which helps people who have problems with controlled substances kick the habit. He has also provided pro bono services in Federal and State Courts.

Brian J. MacDonough, Partner | Sherin and Lodgen LLP

Brian J. MacDonough chairs the Sherin and Lodgen LLP Employment Departmen, and counsels and represents executives and professionals in sophisticated employment and compensation matters and employment litigation.

He handles a wide range of matters, including contract negotiation and enforcement, discrimination, whistleblowing, wage and hour issues, and wrongful termination. In particular, Brian advises executives and professionals regarding employment agreements, change of control agreements, equity and deferred compensation vehicles, non-competition and other restrictive covenants, severance/separation terms, and transition agreements.

A trusted advisor to his clients, Brian often works with them throughout their careers as they transition to new opportunities. As noted by Chambers USA, he “brings a calm demeanor to the table and focuses on the best outcome for his client,” says one interviewee. A client adds: “He is empathetic and very strategic in negotiations.”

In addition to his executive advocacy practice, Brian also litigates cases in both federal and state courts and appears regularly before state and federal agencies, including the Massachusetts Commission Against Discrimination and U.S. Equal Employment Opportunity Commission.

Highly respected by his colleagues, Brian is a former co-chair of the Boston Bar Association’s Labor & Employment Law Section. He also served on the committee that prepared draft sexual harassment regulations on behalf of the Massachusetts Commission Against Discrimination and he assisted in the drafting of proposed revisions of the Commission’s procedural regulations.

Brian is a frequent author and speaker on matters of employment law. He is an editor and co-author of the Massachusetts Employment Law Manual, published by Massachusetts Continuing Legal Education, Inc. He has also co-authored employment law chapters for the MCLE’s Massachusetts Basic Practice Manual, and sections of the quarterly Commentary for the Massachusetts Discrimination Law Reporter. Brian has chaired several programs sponsored by MCLE, including “What Every Lawyer Needs to Know About Employment Law” and “Preventing and Litigating Wage & Hours Cases.”

I. Goals of the handbook | 2:00pm – 2:15pm

II. Handbook policy must-haves & policies to avoid | 2:15pm – 2:30pm

III. Multi-state/multi-jurisdictional handbooks | 2:30pm – 2:45pm

IV. The unique case of Puerto Rico | 2:45pm – 3:00pm

Break | 3:00pm – 3:10pm

V. The plaintiffs’ side employment lawyer’s view – Case Studies and Practical Scenarios | 3:10pm – 3:30pm

VI. Q&A | 3:30pm – 3:40pm