Proposed bills that would ban the enforcement of noncompetition agreements continue to be considered by the Massachusetts Legislature, though little progress has been made toward their approval. One proposed measure would ban the covenants while permitting non-solicitation restrictions as to customers and employees along with other covenants that often appear alongside competition limitations. Another would simply make unlawful “any contract that serves to restrict an employee or former employee from engaging in a lawful profession, trade, or business of any kind” while permitting employers to enforce agreements that protect trade secrets. Both proposed bills along with a third that would enact the Uniform Trade Secrets Act are currently being considered by the Committee on Labor and Workforce Development.
Effective today, July 1, 2015, all Massachusetts employees enjoy guaranteed sick leave benefits. The law that was approved by voter referendum last November mandates that every employee receive one hour of accrued sick leave for every 30 hours of work. The leave can be used for a variety of purposes — including worker or family illness, medical appointments, and dealing with domestic violence — and must be paid by employers with 11 workers or more. It is enforced by the Massachusetts Attorney General, which recently issued final regulations, a mandatory workplace poster, and a draft policy for employers to implement. Those materials can be found on the AG’s website at www.mass.gov.
Employers who have not implemented written policies that comply with the statute should do so promptly. The law was incorporated as a new section of the Massachusetts Wage Act, which provides substantial penalties for violations. It is illegal to refuse to provide sick leave, to require documentation under most circumstances, or to punish workers for using it. Employees can use leave in increments as small as one hour at a time. Though they are prohibited from abusing leave, employers should move cautiously before disciplining employees for improper sick leave usage.
In apparent response to concerns about implementing the new sick leave law set to take effect on July 1, 2015, the Massachusetts Attorney General’s office announced that some employers can delay doing so until January 1, 2016. According to the AG, any employer with an existing paid time off (PTO) policy in effect on May 1, 2015 will be in compliance with the sick leave statute if the policy provides workers with at least 30 hours of PTO during calendar year 2015. Time off must be job protected and retaliation for its use will, of course, be prohibited. Employers that take advantage of this delay opportunity must ensure that their PTO policies meet the AG’s guidelines on January 1, 2016.
States Highest Court Rules that Real Estate Agents can be Treated as Contractors, but Leaves Substantial Questions Unresolved
In a major decision that impacts a huge number of Massachusetts businesses, the state’s highest court today affirmed the concept that real estate salespeople may properly be classified as independent contractors and not employees. In doing so, the Supreme Judicial Court concluded that the Massachusetts Independent Contractor Statute, which generally governs classification issues and makes it extremely difficult for companies to properly treat workers as contractors, does not apply to real estate agents. Its reasoning relies on the existence of a distinct statutory scheme that governs real estate sales work and expressly provides that salespeople may be treated as either employees or contractors. Because the court saw major conflicts between the two sets of laws, it held that the more specific one dealing with the real estate industry governs.
The decision does not, however, resolve the ultimate issue whether real estate agents at work today are employees or contractors. Noting a lack of clarity on the question how to determine this question, the SJC left it for another day. It held simply that real estate sales people are not subject to the framework spelled out by the Independent Contractor Statute, Mass. Gen. L. ch. 149, §148B, a framework that would render every salesperson an employee. The SJC expressly permitted the plaintiffs to continue to pursue their misclassification claims, though without relying on Chapter 149. The court invited the Massachusetts Legislature to “clarify how a real estate salesperson may gain employee status under the real estate licensing statute.” It is patent that this cannot be done by simple declaration in a written contract.
The industry should stay tuned. The case is Monell v. Boston Pads, LLC, decided on June 3, 2015.
In accord with the new sick leave law passed by Massachusetts voters in November and set to take effect on July 1, 2015, the Massachusetts Attorney General’s office has issued draft regulations. Once adopted, the AG’s rules will govern sick leave issues in substantial respects by filling in gaps in the law and adding important interpretations. Following are some highlights of the AG’s current proposal.
— Sick leave accrual will apply to all employees, broadly defined to include anyone who “performs services for an employer” as set out in the state’s independent contractor statute. It is thus highly unlikely that businesses will avoid the accrual and pay requirements of the new statute by classifying workers as contractors.
— All employees whose primary place of work is in Massachusetts will be covered by the law, even if they also work in other states.
— Workers who are employed on April 1, 2015 will start accruing leave (at the rate one hour for every 30 worked) on July 1 and can use it as it accrues. Others will also accrue leave beginning July 1 (if then employed) but cannot use it until employed for 90 days. [Read more…]
For those not already prepared, it’s time to start planning for pending changes to Massachusetts’ sick leave requirements. The new law that was adopted by voters last November is scheduled to take effect on July 1, 2015. By that date, all employers should have reviewed their existing policies for compliance with the new requirements.
All Massachusetts employees will be entitled under the new law to accrue sick leave at the rate one hour for every 30 hours they work, with a cap at 40 earned hours per year. For employers of 11 or more workers, sick leave must be a paid benefit. Employees can begin to use sick leave 90 days after accrual begins. Though they can carry sick time over from year to year, employers can cap annual usage at 40 hours. Sick leave need not be paid out when an employee leaves work.
The law also provides that sick leave can be used in four circumstances. 1. When a worker’s physical or mental health require. 2. When the health of a child, spouse, parent, or parental in-law requires. 3. For regular medical appointments of certain family members. 4. To deal with certain impacts of domestic violence. Employers should take care to ensure their policies cover all four of these areas and otherwise comply with the statute’s requirements. Written policies are advisable.
The Massachusetts Supreme Judicial Court today released an important decision regarding the status of Boston cab drivers, concluding that the drivers were properly classified as independent contractors and not as employees. In addition to putting asunder the apparent plans of the Plaintiffs and their lawyers for huge paydays, the court’s ruling sheds lights on situations when the broad Massachusetts Independent Contractor Statute may not apply to turn an otherwise agreed-upon business relationship into an employment agreement.
The Boston cab industry is regulated under a 1930s grant of authority to the city’s police commissioner. Cab drivers must, among other things, obtain medallions and undergo specific training in order to conduct business. They have long been independently employed individuals who frequently leased cabs and medallions from their owners, who were named as the defendants in the lawsuit. The court rejected the plaintiffs’ arguments that they provided services to the defendants and therefore must be treated as employees. Although it found that the Independent Contractor Statute applied to the taxi cab industry, it concluded that the drivers met the three criteria set out in it. The case is Sebago v. Boston Cab Dispatch, Inc.
In a case that highlights the difficulties of enforcing even valid noncompetition agreements against former employees, a superior court judge recently refused an enforcement request against former employees working for a competitor, despite apparent violations of their agreements. The terms of the parties’ contract notwithstanding, the court refused to enforce the restrictions against competition because the employer was unable to demonstrate that they either possessed proprietary information or would damage their former employer’s legitimate business interests by selling competitive products to its customers.
The result is a common one in the noncompetition enforcement world, where the existence of a written agreement barring certain post-employment activity is not nearly enough, standing alone, to support a court order blocking a worker from his/her new job. Employers must also demonstrate they have a substantive business reason for such an order. Generally, that standard can be met by showing that a former employee is competing unfairly by, for example, using trade secrets or confidential information that belongs to the company. More commonly, employers try to satisfy the requirement by demonstrating that the worker is damaging what’s termed its “goodwill” — the relationship it has established with its customers — by calling on them to sell a competitor’s products.
Employers’ claims often bog down on this latter issue, since a former employee normally argues that personal relationships with customers belong to him/her, not to the company. The argument is often compelling, particularly when salespeople are involved. In many cases, employers trying to overcome this problem are unprepared. They cannot adequately counter a worker’s contention that no one else at the company ever met relevant customers, and they often appear in court without hard evidence that a former employee even improperly solicited a customer. If customers track down a former employee at a new job, an anti-solicitation provision in a noncompetition agreement may not even come into serious play in an enforcement effort.
Employers with legitimate interests to protect should take note of these issues and prepare in advance to protect them. Broad, generally applicable non-compete forms may be insufficient and, in many cases, efforts to block employment is viewed by courts as excessive. A carefully drawn noncompetition agreement that applies to each employee’s particular job coupled with adequate protection of confidential data are probably the best ways to ensure that former workers cannot damage a company’s interests in the marketplace.
One commonly overlooked risk to misclassifying workers as independent contractors rather than employees was recently highlighted when a jury awarded more than $500,000 to a painter who was hurt when he fell from a ladder while working at an apartment building. The problem: the putative employer and owner of the building did not have workers’ compensation insurance because, he claimed, he did not have any employees. The jury’s disagreement led to the large damages award, which exceeded $700,000 with interest and costs.
Under Massachusetts law, all employers are required to provide workers’ compensation insurance to their employees. Most do so through insurance policies while some choose to be self-insured. Employers who fail to provide coverage can face penalties and, as here, lawsuits from injured workers. While many companies who use independent contractors deal with these risks by requiring them to obtain their own accident policies or providing coverage for workplace injuries to them, the defendant here apparently failed to do so.
The Massachusetts independent contractor statute requires all workers to be treated as employees unless they are free from control in the performance of their duties; perform work that is outside the scope of a company’s normal course of work; and operate their own independent businesses. Penalties for violations of the law can be severe. In addition to the lawsuit successfully pursued here, workers can seek back wages, tax liabilities, and other damages. State agencies can perform audits, assess back wages and other expenses, and impose penalties. Offending employers can be forced to pay a worker’s legal fees, and triple damage awards are mandatory in private cases.
The new Massachusetts domestic workers statute — captioned in the Legislature as a “Bill of Rights” for this class of employees — is set to take effect on April 1. It provides variety of rights to housekeepers, nannies, caregivers, cooks, and others who work in residences across the Commonwealth.
The law was enacted in June 2014. Among its highlights are requirements that individuals who work more than 40 hours per week in covered job categories receive a 24-hour rest period each week and a 48-hour rest period each month; that employees who don’t live at the home where they are providing labor be paid for every hour they work up to 24 consecutively; that, for those employees who do live in the home, sleep-time hours deductions and meals/ lodging deductions be written; and that domestic workers receive maternity leave rights. The statute also requires employers of domestic workers to keep records of wages paid and hours worked. It grants privacy rights to domestic employees, who may also request job reviews from their employers. Advance notice or severance pay may be required when employment of live-in workers is terminated without cause. Babysitters are not covered by the new statute.
The statute also expressly prohibits sexual advances that are tied to a domestic worker’s job security or benefits. Sexual harassment of domestic workers is also expressly prohibited. The remedies provided by the Massachusetts Anti-Discrimination Statute, Mass. Gen. L. ch. 151B, apply. They include potential damages for lost wages, emotional distress and sometimes punitive damages, and legal fee reimbursement.