In MA is it legal for an interviewer to ask if I’ve been convicted of a felony?

December 14, 2011 By

Additional  Information:

During a recent job interview, I was asked if I was ever convicted of a felony.   I felt I had to answer the question so I answered honestly, “yes” for something that happened over 10 years ago.   I thought it was against the law in MA for employers to ask this?   Is there anything I can do at this point?

ATTORNEY ANSWER:

Although the law governing criminal record information was amended in 2010 to provide more protections to job applicants, the changes do not appear to reach your situation. Under the revised Criminal Offender Record Information (CORI) law, employers generally cannot ask for criminal histories on a written job application that is completed prior to a job interview. The new law does not expressly reach questions at the interview stage, however, and historical information regarding felony convictions has traditionally been permissible regardless of age. While this is not true in the case of misdemeanor convictions such as drunkenness, disturbing the peace, or speeding, you unfortunately have a felony history and do not appear to be protected by law.  [Read more...]

Filed Under: Legal Questions & Answers

What does MA law allow employers to say in a reference check?

December 1, 2011 By

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I’m been unemployed for 6 months and have been applying for jobs and interviewing but have received no job offers.  Then I got to wondering what my former employer can say about me in a reference?  Does MA law restrict employers from only providing info like dates worked and title and job responsibilities?  Can my former employer say negative things about me that would keep me from getting another job?

ATTORNEY ANSWER:

Unfortunately, the law in Massachusetts does not expressly protect you from a bad job reference. Your former employer is free to say what it wants about your work performance with few restrictions. Although you might be able to pursue damages for a patently false reference that causes you to lose out on a job, doing so will not be easy. You would probably need to proceed under legal standards that generally bar people from defaming — also known as libeling or slandering — another person by the publication of false information. This type of case, however, is very difficult to prove, particularly in the employment context. For starters, you would need to show both that any statements made by your former employer were factual as distinct from mere opinions, which are protected by law and normally cannot be acted upon. You’d then have to prove the statements were false, were made to a prospective employer who would otherwise have hired you, and caused you to lose out on a job opportunity. If you succeeded in all this, your damages could be measured by the amount you lost from missing the job opportunity. These damages, however, need to be mitigated; that is, you need to continue trying to find work in a diligent fashion and, once you do, any amount you make will be deducted from the damages you’d otherwise be entitled to. Given all this and the heavy expenses normally associated with litigation, suits for defamation in this area rarely make much sense.  [Read more...]

Filed Under: Legal Questions & Answers

Can I collect pay out of unused vacation time?

July 29, 2011 By

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I’m coming up on my 5 year anniversary with a Worcester MA company.  I will be giving my 2 weeks notice around the time of my 5 year anniversary.  At the 5 year point we bump up to 4 weeks of vacation. Would I still be able to collect the pay out for the unused vacation time if my notice is in but my last day falls after the anniversary date?

ATTORNEY ANSWER:

Under Massachusetts law, vacation time that is accrued but not used at the time an employee leaves the job must be paid out as wages. The trick is figuring out what’s accrued and what’s not, a matter that generally is governed by an employer’s internal policies.

The key statute in this area is the state’s Wage Act, which requires employers to pay workers all money they earn within narrow time frames. Violations of the Act can bring heavy penalties that include the potential for criminal sanctions. More commonly, the failure to pay wages as required by the law results in a civil suit by a disgruntled former employee. The Wage Act provides that successful plaintiffs in cases like these be awarded triple the amount improperly withheld from them plust reimbursement for all legal fees they expend. When a company grants vacation time — a matter solely within the discretion of the employer — it must honor its policies and, when a worker leaves for any reason, pay out as wages the accrued but unused time showing on its books. This rule prevails because vacation time is, under these particular circumstances, considered wages under the law.
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Filed Under: Legal Questions & Answers

I have just returned to work after maternity leave. What are my legal rights?

May 3, 2011 By

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I have recently gone back to work after taking maternity leave. Before I went on leave, I created a new work schedule with my manager for when I returned, which included a day working from home every week. One week before I was to return to work, my manager emailed to say our VP did not approve the schedule and I needed to make a new one. Specifically, I could not work the day at home and needed to do all my hours in the office.

It is very common for staff to work from home at my organization, either as planned days home, unplanned (ex. sick days), bad weather days, etc, and this was why my manager and I included a day at home in my new schedule.

Now I am being told I can’t do this day at home each week, while other staff members continue to work from home, to the point where it is marked on their Outlook calendars. The underlying message is that I can’t do this because I have a baby, although no one has said that outright. Do I have any recourse here? I’m just looking for things to be equitable.

ATTORNEY ANSWER:

It sounds like there could be some help for you legally, though the result of any efforts to correct this will be determined by the full set of circumstances and, to a large degree, by the reasonableness or lack of reasonableness, as the case may be, of your employer. Your own flexibility on the work-at-home issue might also come into play since, regardless who is right or wrong from a legal standpoint, compromise on issues like yours may be superior to the strains and expenses of litigation (which frequently is accompanied by job loss).

Under the Massachusetts Maternity Leave Act, women who work full-time for 90 days or more are generally entitled to eight weeks of leave and a return to their jobs thereafter. This normally involves the very same job and the same schedule, and women who seek to amend things run the risk of losing their return-to-work rights. Employers are not, however, permitted to treat pregnant women differently from other employees. Once a woman returns to work on whatever terms may be applicable, they must continue this approach. Where an employer imposes different requirements or expectations on the mother of a newborn, it runs the risk of violating other anti-discrimination laws that bar differential treatment of employees based on gender, race and the like.

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Filed Under: Employee - Employment Law, Legal Questions & Answers

My job was eliminated. What are my rights?

March 24, 2011 By

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Back in August, my position as an Inside Sales rep for a Framingham MA company was eliminated.  I was moved over to the marketing department. I was never given a new title and did not sign any paperwork. I was told that I would not be receiving commissions anymore but that my new salary would compensate for the loss in commissions. I do not have this in writing however. Fast forward to today: I still have not received a new title, although I am supporting all the of senior management. I am paid out of the marketing payroll. My salary is what my base salary was when I was doing inside sales. My workplace is using me I feel. I am doing things that are required of top paid executives, but I am making less than I was. What are my rights and can I collect unemployment if I quit due to these circumstances? (i.e. reduced pay) Thanks.

ATTORNEY ANSWER:

As you may already know, Massachusetts follows the at will employment rule, which generally provides that both employers and employees are free to either maintain or end a working relationship at any time, for any reason. The application of this principle of law to your circmustance may leave you with few options and certainly dictates that you tread carefully in making decisions about your future with this company.
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Filed Under: Employee - Employment Law, Legal Questions & Answers

What are my legal risks for breaking my employment contract?

March 3, 2011 By

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I work in the IT department of a school in the Greater Boston area (Wakefield to be exact). As part of my terms of employment, I have to sign a contract yearly. Part of this contract states that I must give a whopping 90 days notice if I plan to terminate my position.

My question is, how realistic is it to expect to abide by this particular rule? Can they do anything to me if I just give normal 2 weeks notice? Even if they can, is it common that they will? I would like to search for a new job but having to give 90 days notice will likely ruin any prospective job. After all, who is going to wait that long?

Basically, I’m trying to get a reasonable analysis on the risks that I take by only giving 2 weeks notice. Vague question probably, and I apologize for that.

ATTORNEY ANSWER:

If you breach this contract by leaving without giving the required 90 days notice, legality and practicality will likely be at odds. Though contracts like yours are, at least in theory, as binding as any other formal agreement, enforcing a requirement that an employee stay on the job presents real problems that most employers will prefer to avoid. That’s because no judge will be likely to order you to stay with this employer, and none would have very effective mechanisms to enforce such an order even if he/she believed the court had authority to issue one.

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Filed Under: Employee - Employment Law, Legal Questions & Answers

Can my current employer give a potential employer a bad reference about me?

January 26, 2011 By

ATTORNEY ANSWER:

The short answer to this question is yes, your employer can say whatever he or she likes about you and your work performance to a potential new employer who might call for a reference. As long as the information provided is true – and even, to a large degree, if it isn’t – the law won’t provide you any redress if the boss undermines your prospects for moving on.
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Filed Under: Employee - Employment Law, Legal Questions & Answers

Can my old boss sue me based on a confidentiality agreement?

October 29, 2010 By

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I recently left my job at an IT company to start my own business. My old boss says he will sue me if I open a business in Massachusetts because that would violate the confidentiality agreement in my old one year contract. I’ve read the old contract and I don’t see how that could be true. Any thoughts?

Attorney Answer

Confidentiality agreements are generally enforceable in Massachusetts if they protect legitimate business interests, and the state has specific laws the protect trade secrets from theft or misuse. Former employees should be careful to honor their employers’ restrictions regarding proprietary information, regardless of the conditions under which they leave employment. As long as you do this, you need not be concerned that you’ll somehow transgress the bounds of law by opening your own business.

The problem with this sort of situation is that an employer’s idea of what is confidential and that of a former employee often differ. So too do interpretations of written agreements. To be binding, a writing like the one you refer to must meet certain legal requirements. To the extent you have questions whether your contract is valid and/or whether it might in fact be applied to somehow block or restrict your new business, you’ll be well served by consulting with an employment attorney. The relatively small amount of money you’ll spend on a consultation will be well spent as it buys you a full understanding of the law as it applies to your specific situation.

Filed Under: Employee - Employment Law, Legal Questions & Answers, Non-competition Agreements