All posts by Michael B. Donahue

Careful: That Flow-Down Clause is Loaded (or, “How Incorporation by Reference” Can Leave Marks in Unintended Places)

We all do it. We all use multipart agreements, or structure transactions where multiple parties are agreeing to the same set of terms and conditions, or seek to bind remote parties to a unified set of obligations, because it makes sense to do that from any number of perspectives. In construction, the practice has existed beyond memory: use of “incorporation by reference” or “flow-down” clauses to impose consistent contractual obligations down the chain of privity is so common as to be remarkable only in its absence.  When done lazily, however, problems can result, particularly in the areas of dispute resolution, as illustrated by recent court decisions concerning arbitration clauses that were “incorporated by reference”.

Continue reading Careful: That Flow-Down Clause is Loaded (or, “How Incorporation by Reference” Can Leave Marks in Unintended Places)

Massachusetts Pay Equity Law: Don’t Ask, Don’t Ask… (or, This Is Not Your Father’s Job Interview)

On August 1, 2016, Massachusetts Governor Charlie Baker signed “An Act to Establish Pay Equity in the Commonwealth,” a bipartisan bill which outlaws gender-based wage discrimination. Beyond the obvious, this law (which takes effect July 1, 2018) has significant ramifications for employers in Massachusetts, including those in the construction industry.  Continue reading Massachusetts Pay Equity Law: Don’t Ask, Don’t Ask… (or, This Is Not Your Father’s Job Interview)