Searches for Reasonable Accommodations Require Good Faith from Employer and Employee Alike

When it comes to reasonably accommodating employees with disabilities, the process of determining what can be done is a two-way street, at least at the federal level. So says a recent decision from the U.S. Court of Appeals that determined the question whether Kohl’s department store met its obligation to engage in the legally required interactive process aimed at determining what accommodations it could make for its diabetic employee. Over the dissent of one of its members, the Appeals Court awarded summary judgment to Kohl’s because, it found, the employee acted unreasonably.

The case pitted a woman with Type I diabetes against the large department store, which altered its scheduling to require irregular shifts for some of its employees. The schedule was a problem for the employee, Pamela Manning, who asked for an accommodation in the form of a regular work schedule. When Kohl’s delivered a message through its store manager that it could not provide one, the employee abruptly quit her job, citing the detriments to her health of an erratic work schedule, and stormed out of the office. She rebuffed her manager’s plea that she reconsider, delivered both at the office that day and in a conversation by telephone 10 days later, and filed suit. Finding against Ms. Manning, the court wrote, “We must emphasize that it is imperative that both the employer and the employee have a duty to engage in good faith….If an employer engages in an interactive process with the employee, in good faith…but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations….”

A dissenting justice found Kohl’s negotiating tactics were unfair to its employee and were not conducted in good faith for discrimination law purposes. “A jury could certainly find that Kohl’s did not make reasonable efforts to provide accommodations based on the information it possessed,” the dissent wrote. Harshly criticizing the reasoning of his fellow jurists, the dissent opined that Ms. Manning’s case should have been decided by a jury. The case is EEOC v. Kohl’s Department Stores, Inc.. It was decided on December 19, 2014.

New Minimum Wage Takes Effect

The first phase of Massachusetts’ new state minimum wage law is now in effect. As of January 1, all employees in the Commonwealth must be paid at least $9 per hour. The minimum wage rate was previously set at $8/hour.

The law also requires increases in the rate paid to tipped employees, and the total amount they earn when tips are added must meet or exceed the state’s minimum rate. That rate will increase to $10/hour on January 1, 2016 and to $11/hour on January 1, 2017. Massachusetts is one of several states that recently increased its minimum wage rate after years without changes.

In Massachusetts, paying employees what they earn and are due is particularly important because of harsh penalties in the state’s Wage Act. Failure to meet a number of requirements — including timely payment of minimum wages, commissions, and other sums that may be due to employees — carries a mandatory triple-damages penalty. Employers who lose suits under the Wage Act must also pay legal fees their workers accrue in the collection process.

Voter Initiative Leads to New Sick Leave Rights for All Massachusetts Employees

Passage of the sick leave law by voters on November 4 will have tangible effects on virtually all Massachusetts employers. Though the statute might not require companies that already have written sick leave policies to change things very much, its varied provisions will nonetheless require a careful review of those policies to ensure statutory compliance. Employers who don’t now have formal sick leave rules will need to adopt them by July 1, 2015, when the statute will take effect.

As of that date, all employers must provide for the accrual of sick leave at the rate one hour for every 30 hours worked, up to a maximum of 40 hours per year. Companies with 11 or more workers must pay employees at their regular hourly rates when time is used; those with 10 or fewer need not do so. Employees are entitled to begin using accrued sick time 90 days after accrual begins (July 1, 2015 or the first day of employment, whichever occurs first). Though workers can carry sick time over from year to year, employers are not required to permit them to use more than 40 hours in a calendar year. Unlike vacation pay, earned but unused sick leave need not be paid out when an employee leaves the job. [Read more…]

Former Teacher to Keep Pension Despite Child Pornography Conviction

Despite pleading guilty to buying and possessing child pornography, a former 9th grade science teacher, coach and sports referee for the Amherst-Pelham regional school district will keep his retirement benefits. In a decision released this week, the Massachusetts Supreme Judicial Court found that, because the teacher’s crimes did not relate to or concern his teaching job, a retirement benefits forfeiture provision could not be applied to deny him the pension he earned during his 22 years as an educator.

The teacher, Ronald Garney, was identified in 2004 as part of a federal investigation into web sites that sell child pornography. Following two years of monitoring by local police, Mr. Garney’s home was raided and various illegal pornographic images were found. He acknowledged that he’d viewed child pornography for 12 years and, in lieu of being fired, resigned his teaching position. Upon reaching retirement age in 2007 and before he pled guilty to the charges against him, Mr. Garney applied for and was granted his benefits. The Massachusetts Teachers Retirement System reversed that decision in 2009. None of the illicit images or activities related to Mr. Garney’s teaching position or his students and, for this reason, the SJC concluded, it was compelled by statutory language to find that his earned retirement benefits were not forfeited by law.

Meal Breaks: To Pay or Not to Pay?

Paying employees the wages they are due for their work is, conceptually, at least, a pretty straightforward matter. Working 8 hours, e.g., results in 8 hours of pay, less time spent on a meal break of 30 or 60 minutes. But when it comes to deducting time spent on meals by hourly employees, things sometimes get tricky. While Massachusetts and federal law permit meal breaks to be unpaid, the rule applies only when employees are completely relieved of their work duties.

As with many things legal, interpreting what this means can be anything but straightforward. Wage and hour guidance indicates that, any time an employee is required to remain on site or to perform any sort of work, either actively or not, meal break time must be paid. This likely means that an employee who sits with others during lunch and discusses work issues needs to be paid for the break time, even if the employer supplies a sandwich at no cost to the worker. It certainly means that, when an employee may possibly perform work while on break – answering a phone call, e.g., or addressing questions about a work issue – the time spent eating is compensable regardless whether work is actually performed. Not surprisingly, employers sometimes stumble on this issue. Because the penalties for not paying workers for all hours worked can be severe (triple the amount owed plus legal fees under the Massachusetts Wage Act), the damage from an error in this area can be significant, especially for larger employers. [Read more…]

Whistle Blowers and Massachusetts Law

When an employee decides it’s time to blow the whistle on employer misconduct or that of a fellow worker, employees are well advised to do a bit of homework first. While it certainly seems like whistle blowers should be protected by the law – and, generally speaking, they are – those protections do not come without rules. Simply put, employees cannot suffer retaliation for reporting certain improprieties at their places of employment but must comply with legal procedures and definitions.

State employees enjoy the protection of a whistle blower statute (Ch. 149, §185 of the General Laws). It prevents employers from firing, suspending, demoting or otherwise punishing them for reporting what employees reasonably believe to be violations of laws, regulations, or other matters an employee “reasonably believes poses a risk to public health, safety or the environment.” Except in limited circumstances, however, employees must first report any such violation to their supervisor’s attention in writing. As one worker recently found out, the internal report requirement is strictly construed – her case claiming she was forced to resign after reporting records falsification was dismissed because she did not report the problem in writing before she sued.

For others, Massachusetts interpretative law has carved out an exception to the at-will rule that protects employees who report crimes, either internally or to outside authorities. Again, employees who feel compelled to blow the whistle on such conduct should take care to ensure they are in fact reporting a violation of law before they do so. In general, Massachusetts employers can terminate their workers for any reason or no reason – a complaint about a company policy or rule, e.g., differs materially from a complaint about a crime. The whistle blower exception for privately employed individuals should be examined carefully before action that might imperil future employment is undertaken.

Appeals Court Sets Standard for Holding Managers Liable under Wage Act

The Massachusetts Court of Appeals recently shed a bit more light on what’s required to hold managers of a corporation liable for an employer’s failure to pay earned wages to employees. Citing to a standard that provides for individual liability in company decision-makers who control or substantially contribute to policy determinations, the Court dismissed a suit against several defendants who, it found, did not perform “corporate management functions.”

“We reject the notion that directors may be held liable [under the Massachusetts Wage Act] solely on the basis of their titles,” the Court concluded in Perrin v. Collaborative Engineers, Inc. None of the defendants served as president or treasurer, job titles that carry automatic liability under Mass. Gen. L. ch. 149, §148. Instead, they were full-time employees, directors and minority shareholders. The company’s daily operations were controlled by a separate defendant, and individual liability in others was therefore inappropriate despite apparent authority to at least influence corporate policy.

Under the Massachusetts Wage Act, the president and treasurer of a corporation are personally liable for a failure to pay wages, as are any other managers who control, direct or substantially participate in policy formulation. The statute requires prompt payment of wages earned by employees. Violations of the law result in mandatory triple damages and the assessment of legal fees against offending employers. The statute appears as Mass. Gen. L. ch. 149, §§148-150, and includes a section limiting employers’ uses of independent contractors.

SJC Settles Wage Act Question: LLC Managers are Liable just like Anyone Else

In a decision that many employment lawyers saw coming, the Supreme Judicial Court declared on June 13 that managers of  limited liability companies are personally liable under the Massachusetts Wage Act if they substantially participate in formulating financial policies. The ruling puts to rest any doubts on this issue that arose after a justice of the superior court ruled in 2011 that, because the Wage Act does not specifically mention LLC managers but does say that corporate presidents and treasures can be held personally liable, the managers are exempt.

The lower court decision had already been contradicted by at least two other superior court judges, who read the Act’s broad liability language to cover LLC managers despite the reference to corporate officers, a reference that was added to the law in 1932 at a time when LLCs did not even exist. Noting this point and other liability referneces in Chaper 149, Sections 148-150, the SJC made relatively short work of the issue. It seemed to consider the point that LLC managers are liable if they make decisions that violate the Wage Act to be a rather obvious one. To rule otherwise, it seems, would irrationally create an easy route to avoid the law’s requirement that employees be paid the wages they earn on the job.

“We do not read these provisions of G.L. c. 149, § 148, as a legislative effort to single out for individual liability only the officers or managers of the specific types of entities mentioned in the statute. Rather, the inclusion of the provisions on corporate officer liability and public officer liability serves to illustrate the circumstances in which an individual may be deemed a ‘person having employees in his service’ under G.L. c. 149, § 148,” the court held. The case is Cook v. Patient EDU, LLC.

When Can Employers Use Independent Contractors to Perform Work in Massachusetts?

The conservative answer to this question is “never.” Under Massachusetts law, the use of independent contractors is severely restricted. In a classic example of what many consider legislative overkill, the law assumes all workers are employees, not contractors, regardless what the parties may have agreed to, until and unless employers prove otherwise. The criteria for doing so are so restrictive, taken together, that virtually no business in Massachusetts can satisfy them.

Under Mass. Gen. L. ch. 149, s. 148B, individuals who provide services to another are employees unless the recipient of those servies — that is, in normal circumstances, the supposed employer — prove the following:

1.  That the worker is free from control in the performance of the services, both under any contractual agreement and in practice;

2.  That the work being performed is something different from that normally performed by the recipient — that is, it is outside the usual course of its business dealings; and

3.  That the provider of the services is engaged in an independent business enterprise, something that is akin to true self-employment. [Read more…]

What do I need to do if I suspect an employee is stealing?

Additional Information:

I am a small business owner in Framingham, MA and suspect one of my employees is stealing from me.  What do I need to do?  Contact an attorney?  the police?  Can I install a video surveillance without notifying the employees?


It’s probably unwise to install video cameras without telling your workers, though you may be permitted to do so as long as you do not invade privacy. Apart from the practicalities involved and the potential legal implications, why would you want to spend the substantial money required to videotape all of your workers just to catch the wrongdoing of one of them? This may both cost you money and, perhaps more importantly, lead to unhappiness among your other employees. The last thing you want here is to shift focus from the wrongdoing of one worker — whom you may or may not nab stealing though a new video camera — to you as an employer. No one likes to be secretly videotaped, a form of spying. Installing cameras openly, however, may be a different matter. This often deters theft or other wrongdoing by employees. [Read more…]