Issue March/April 2019

March 2019

Big Data, Small Data, Value and Monetizing Medical Records: Who Owns the Content of a Patient Record, and Why Does it Matter?

Health care providers and facilities often use patients’ medical records in their research. The results of this research may be worth money — sometimes, quite a lot of money. Who owns the patient’s medical record/the contents of that record, and the proceeds it generates?

The Doctor is Drunk

This article is about health care in Massachusetts — not New Hampshire — but this sad story crystalizes two questions that remain open at the different licensing boards of both states. What does it mean to be “impaired?” And how should boards deal with impaired practitioners?

An Employee Perspective on the New Noncompete Laws.

Following enactment of the Massachusetts Noncompetition Agreement Act, two of our colleagues who represent management opined in a Massachusetts Lawyers Weekly article that the new statute “will only create more confusion, uncertainty and litigation.” They concluded their review of the law by saying, “Nothing had to be done … why fix something that is not broken?”

From a plaintiff/employee perspective, a great deal has been “broken” in Massachusetts for a long time. The new law — while far from perfect — constitutes an important advance over the uncertain, unregulated common-law jurisprudence that employees have been up against.

Gender Identity and the Equal Pay Act

Effective June 30, 2018, the Massachusetts Legislature enacted the Equal Pay Act, which prohibits employers from paying an employee less than “employees of a different gender for comparable work.” This new law, replacing a 1945 statute rendered ineffectual by decades of judicial narrowing, reinvigorated a key tool in redressing and reversing the systemic underpayment in the workplace of women relative to their male counterparts.

NLRB Proposed New Joint-Employer Rule

The National Labor Relations Board (NLRB) recently published a Notice of Proposed Rulemaking aiming to overturn the Obama-era board’s standard for joint-employer relationships.

Pregnant Workers Fairness Act: What Every Employer Should Know

As the new year begins, it is an ideal time for employers to assess whether their policies and procedures are compliant with Massachusetts laws — including the Pregnant Workers Fairness Act (PWFA). It goes without saying that most companies will, at one point or another, have an employee who is pregnant or who experiences a condition related to pregnancy. The purpose of this article is to examine the PWFA and provide a refresher on its requirements.

What Employers Need to Know About Massachusetts’ New Requirements for Calculating Tipped Employees’ Wages

In June 2018, Massachusetts Gov. Charlie Baker signed into law “An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday.” As one part of that so-called “grand bargain” legislation, effective Jan. 1, 2019, employers in Massachusetts with tipped employees are now required to calculate tipped employees’ wages at the end of each shift instead of at the end of each pay period. This change not only presents an additional administrative challenge, it also makes it more likely that employers will be required to pay employees additional amounts to ensure that they receive at least minimum wage during slow shifts.

Due Process Guarantees Apply to Firearms Regulations

Few public policy issues generate such polarized viewpoints as efforts to regulate firearms. Firearm owners, through national organizations such as the National Rifle Association (NRA), and locally through the Gun Owners’ Action League, do not hesitate to express their views on gun regulation, while those favoring greater regulation have recently become more vocal and organized in pursuing their goals. Regardless of one’s stance on the policy debate, everyone must acknowledge that efforts to regulate firearms face several constitutional hurdles, including limitations imposed by the Second and 14th amendments to the United States Constitution. This article will focus on one recent Massachusetts regulatory effort rife with constitutional challenges.