Massachusetts data security rules and regulations are some of the strictest in the land.  When you combine the Massachusetts data security regulations with the federal data security rules, it becomes more and more difficult for businesses to keep up.

We’ve come a long way from the violet hue and intoxicating aroma produced by the mimeograph machine – the grandfather of the modern day copy machine.  Today’s copiers are versatile and sophisticated.  They not only produce fine work product (with no discernible narcotic effect), but they also contain hard drives that store images of all of the copies made.  Impressive?  Certainly.  Problematic?  Oh yeah.

It seems that every recent Equal Employment Opportunity (EEO) related conference I have attended has played the same message: EEO enforcement in the workplace has increased.  So, if you think that you have noticed more activity by federal and state investigators in the investigation of charges of discrimination, an increase in OFCCP audits or more EEOC litigation and findings of probable cause from the MCAD - you’re not the only one.    

Desperation.  Confusion.  Profanity-laced tirades.  In addition to serving as a fairly comprehensive review of Charlie Sheen’s “Torpedo of Truth” tour, these are all typical reactions of businesses when they discover a data security breach.  A laptop got stolen out of a salesperson’s car or the IT geeks discover a keylogger on the system, exposing the company’s employees or customers to a risk of identity theft.

What does the movie Ferris Bueller’s Day Off - an 80’s classic near and dear to my heart - have to do with the law?  So glad you asked… Here’s a quote that illustrates their similarities: “Life moves pretty fast. If you don't stop and look around once in a while, you could miss it.”  You could swap “the law” with “life” in that quote and I would still agree with it.  With that being said, if you weren’t paying attention recently, you may have missed a recent development in Massachusetts employment law having to do with protected classes.

Employers can generally rattle off the protected classes in Massachusetts in their sleep, (they probably even remember genetic information): Race, color, ethnicity national origin/ancestry, gender, age, handicap/disability, religion, sexual orientation, genetic information, and veteran’s status.  See how easy that was?  But last month, Governor Patrick quietly signed an executive order making it unlawful for state agencies to discriminate on the basis of gender identity and expression. 

For awhile now, we at HRW have asked clients to think about including gender identity and expression to the list of protected classes in their handbooks and policies.  Why?  Because we think forward-thinking employers will be rewarded by the LBGTQ community for admonishing discrimination on the basis of gender identity and because we think it’s the right thing to do.  And apparently, Governor Patrick agrees with us.  The new executive order prohibits Massachusetts state agencies from discriminating against a person on the basis of gender identity or expression.  The executive order also applies to businesses and organizations that contract with the Massachusetts Executive Branch.  (A copy of the Executive Order can be found here: (http://www.mass.gov/?pageID=gov3terminal&L=3&L0=Home&L1=Legislation+%26+Executive+Orders&L2=Executive+Orders&sid=Agov3&b=terminalcontent&f=Executive+Orders_executive_order_526&csid=Agov3). 

The executive order was passed with the intention of curbing discrimination and harassment against transgendered individuals.  According to a study released in February 2011 by the National Gay & Lesbian Task Force, 76% of transgender respondents from Massachusetts reported harassment or mistreatment on the job, and 20% indicated that they lost their job because they are transgendered.  Of course, this new executive order does not apply to all Massachusetts employers and so it will not fully eliminate harassment and discrimination on the basis of gender identity, but it is a step in a positive direction.  It may also pave the way for the passage of a broader legislative effort to ban discrimination in employment on the basis of gender identity and expression for all Massachusetts employers.  So don’t forget to “look around” every once in awhile or else you may miss other big changes in employment law!       

By Amanda Kellar

Attention all healthcare providers!  Did you know the following:

There was some big news in Defense of Marriage Act (DOMA) litigation coming out of the Department of Justice today.  

HRW aims to help employers.  So does AIM.

Earlier this month, the business community celebrated the one year anniversary of the Massachusetts Data Security Regulations.  And by “celebrated,” I mean lamented, cursed, bemoaned and otherwise maligned.  After all, the Massachusetts Regulations, which are the strictest, most comprehensive set of regulations of their kind in the nation, have caused businesses to spend massive amounts of time and money in their attempts to comply.  Many other businesses, though, have disregarded the burdensome regulations, and now live under the cloud of fear of the potential consequences.

     Your business is thinking about hiring a great new employee but you learn she has signed a broad non-competition agreement with her former employer.  Can her former employer stop her from working for you?  Or, one of your top sales people has just left to go to a competitor.  Is the non-competition agreement he signed two-years after he started with your company valid?  As employment attorneys, we get these questions all the time - and the answer is usually “it depends.”