Massachusetts to Grant Work Leave Rights to Domestic Violence Victims?

January 13, 2012 By

By an overwhelming vote of 34-0, the Massachusetts State Senate voted on January 12 to grant victims of domestic violence up to 15 days of annual leave. The bill is not yet law as it must be approved by the state’s house of representatives and then signed by Governor Deval Patrick. Given the lack of dissent in the Senate, however – one brave Senator did vote “present” in apparent protest, a move that suggests opposition in the House will be hard to come by — the law seems likely to be enacted sometime soon.

 In its current form, the domestic violence leave law would apply only to companies with 50 or more employees. This is the same size threshold as applies to the Family and Medical Leave Act (FMLA), a federal law that grants workers up to 12 weeks of leave annually and applies to things like child birth, adoption, and medical conditions. The 15 days of leave for domestic violence victims would be in addition to FMLA’s 60. It could be used to obtain medical attention or counseling, appear at legal proceedings, meet with law enforcement officials, or ”address other issues directly related to the abusive behavior against the employee or family member of the employee.” Any of these provisions or others in the Senate’s bill could be amended after consideration by the House of Representatives.

In any form, the law is bound to raise concerns among large employers and business advocacy groups. Massachusetts already imposes a variety of restrictions on the ways employers treat their workers, and the domestic violence bill may be viewed as piling on. Still, the idea comes in response to a real need, and few would argue against the idea of helping victims, at least conceptually. Indeed, victims of domestic violence and their advocates might also be unhappy with the Senate bill, which clearly will fail to reach the many domestic violence victims who work for small Massachusetts companies. In any event, Massachusetts would not be the first state to grant work leave rights to domestic violence victims. Already, laws in California, Connecticut, Florida and other states grant job protections in this area. Some form of leave law certainly seems appropriate for the Commonwealth now and, with any luck, the legislature will strike a proper balance for our state. 

 

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Wrongful Termination

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

Additional Information:

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

Legislature Holds Hearing on Bills that would Rewrite Independent Contractor Law

November 4, 2011 By

A committee of the Massachusetts state legislature held a hearing on November 3, 2011 to take input on 4 pending bills that aim to revise the state’s independent contractor statute. The law has been under fire from some circles due to language that, read literally, essentially bans the use of contractors in Massachusetts. It’s not the first time opposition forces have pressed for rewriting of the law. A similar effort last year was unsuccessful.

The independent contractor law appears at Mass. Gen. L. ch. 149, s. 148B. It requires that all workers be classified as employees unless the employer demonstrates that 1.  the worker is free from control in the performance of daily duties; 2. the work performed is outside the usual course of the employer’s business; and 3. the worker is customarily engaged in an independent business. Its rewriting to this form in 2004 effectively banned the legal use of contractors, since almost no employer can meet the second prong of this three-part test and many cannot meet the other two. [Read more...]

Filed Under: Employee - Employment Law, Employer - Employment Law, Independent Contractors, Massachusetts Wage Act, Wages and Commissions

Wage Act’s Triple Damages Provision is Not Retroactive

October 17, 2011 By

Massachusetts’ highest court has ruled that the 2008 amendment to the state’s Wage Act is not retroactive. As a result, claims involving work that straddles the July 2008 effective date of the rewritten law will be governed by two different standards. For damages related to work that occurred prior to July 2008, a plaintiff employee will be required to persuade the court to double or triple the sum awarded. Any damages for work performed after July 12, 2008 will be automatically tripled by law.

The Wage Act amendment came in response to a 2005 SJC decision that held the award of triple damages under the Act was discretionary, not mandatory as was previously believed by most employment lawyers. Indeed, several lower courts interpreted the old version of the Act to require an award of triple damages. After the SJC concluded otherwise, the Massachusetts state legislature amended Mass. Gen. L. ch. 149, s. 150 to clarify its language and require triple damage awards. The law also requires the award of legal fees to a prevailing employee.

Filed Under: Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Massachusetts Wage Act, Wages and Commissions

MCAD Exempts Itself from from Bankruptcy Stay Rule

September 20, 2011 By

In a decision many employment lawyers may find surprising, the Massachusetts Commission Against Discrimination refused in June to stay proceedings in an age and sex bias case despite the employer’s filing of a bankruptcy petition. The MCAD instead proceeded to hearing and entered a judgment of nearly $250,000 for the employee, concluding that the bankrupt respondent “has chosen to default rather than present a defense.”

The decision is contrary to language from the United States Bankruptcy Code, which requires that civil proceedings — including administrative processes like those at the MCAD — be stayed as to any party that files for bankruptcy protection. The idea that an agency like the MCAD could somehow be exempt from this federal law, which generally trumps any conflicting statute at the state level, is itself surprising. The ruling, however, is supported by a 1999 Bankruptcy Court decision. It permitted the Commission to enter injunctive and monetary relieve under an exception to the Code’s stay requirement that appears to apply to the continued exercise of “police and regulatory power” in chemical weapons proceedings.

While the ultimate effect of the stay decision itself is a matter for the case’s parties alone, the ruling delivers a plain message from the MCAD to employees and employers alike: think carefully as you weigh whether and how to proceed at the Commission. Regardless what the law may appear to require, the MCAD possesses broad regulatory authority that may be used in suprising ways as the Commission pursues its goal of remediating illegal discrimination.

Filed Under: Discrimination, Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Wrongful Termination

Enforcing Noncompetion Agreements against Independent Contractors may be Problematic for Employers

August 31, 2011 By

As if employers don’t have enough to worry about when they try to enforce noncompetition agrreements against their former employers, some are discovering that things get even trickier when they look to do so against workers who were arguably misclassified as independent contractors. In addition to the normal hurdles — including proving that a valid contract was formed and then breached by the employee, and establishing that a worker’s new job will substantially injure legitimate business interests — they may also face a formidable claim that the working relationship was itself illegal under Massachusetts law and, consequently, that their otherwise valid noncompetition agreements are void and of no effect.

This sort of situation is arising with increasing frequency in the real estate industry, for example, where agencies routinely classify their realtors as independent contractors despite the fact that, in all likelihood, they cannot pass muster under standards established by Mass. Gen. L. ch. 149, s. 148B. Many of these agencies also routinely required agents to sign non-competes. While it’s true that, to date, enforcement authorities have not focused attention on apparently illegal independent contractor deals like these, the approach by government does not impact the parties themselves. An improper independent contractor deal can still be raised as yet another substantial defense in a noncompetition enforcement action.

The problem for employers here is fundamental. Generally speaking, persons who violate provisions of law cannot later claim their benefits. Similarly, persons who violate contractual terms cannot later seek to enforce violations by other parties to them. In the employment setting, independent contractror arrangements that don’t comply with state law are void, and employees cannot be bound to honor them, even where they agreed to the terms in the first place. Employers, on the other hand, can be found liable for damages to the same employees who agreed to work as contractors. Where a noncompetition agreement is part of that sort of deal, an employee might argue persuasively that there is no valid basis to enforce it. Non-competes, after all, can withstand attack only when supported by a tangible benefit to the employee involved. Though hiring a worker and providing him/her a job is generally sufficient for this purpose, improperly classified workers might establish that, because the foundation of their work agreements are invalid, so too are the noncompetition clauses contained either within them or as part of some related document.

To be sure, this theory needs to be tested in the courts, and employers might in some cases argue for application of enforcement principles that apply to non-employment relationships. Standards there are in fact easier to meet in enforcement actions, but are unlikely to apply unless the employer can first establish the independent nature of the relationship to its former contractor. If that independent contractor was in fact an employee under law, that task may prove difficult or impossible.

Jack K. Merrill, Esq.

Filed Under: Employee - Employment Law, Employer - Employment Law, Independent Contractors, Massachusetts Employment Law, Non-competition Agreements

Can I collect pay out of unused vacation time?

July 29, 2011 By

Additional Information:

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.
[Read more...]

Filed Under: Legal Questions & Answers

Judge Shocks Employment Bar with Narrow Wage Act Ruling

July 5, 2011 By

In a decision that can be described as nothing less than shocking to many in the employment law arena, a superior court judge has held that the Massachusetts Wage Act does not apply to limited liability companies (LLC) in the same way it covers corporations. Applying a narrow view of the law’s specific language and rejecting the implications of her decision, Judge Bertha Josephson concluded that managers of LLCs are not personally on the hook in the way that presidents, treasurers and other officers of corporations are when wages aren’t paid to employees.

The decision, reported in the July 4, 2011 edition of Massachusetts Lawyers Weekly, could have broad and substantial implications. In many wage cases and for very good reasons, employees name individual decision makers as defendants in lawsuits. This helps ensure that employers do not hide behind what may be underfunded or even bankrupt business entities and claim that they do not have the funds to pay what is owed to their workers. Under  Cook v. Patient EDU, LLC, employers might now avoid paying wages via the expedient of forming an LLC or simply closing down the ones they already have. Though the decision comes from the superior court level and is thus not binding on other trial judges, it will likely be cited liberally by defense attorneys until and unless it is overturned on appeal. Given the slow pace of legal cases generally, that could take years and cause substantial difficultiies to employees of LLCs who believe they are owed back wages. [Read more...]

Filed Under: Employee - Employment Law, Employer - Employment Law, Massachusetts Employment Law, Massachusetts Wage Act, Wages and Commissions

Workers’ Comp Insurance No Bar to Suit by Independent Contractors Hurt on the Job

June 23, 2011 By

The Supreme Judicial Court has added yet another reason for employers to properly classify their workers — the threat of a direct lawsuit by non-employees injured on the job, even if those workers first collect hefty workers’ compensation payouts. In a May 23, 2011 decision, the Court held that the state law barring injured employees from suing their employers does not apply to subcontracted workers. Two victims of a residential construction project explosion were permitted to first settle with the defendant’s workers’ compensation insurer, then sue the company that controlled the worksite where they were injured. [Read more...]

Filed Under: Employee - Employment Law, Employer - Employment Law, Independent Contractors, Massachusetts Employment Law, Massachusetts Wage Act
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