June 28, 2017

Employment Law Blog

Meal Breaks in Massachusetts: Paid or Unpaid?

Massachusetts law states that no person shall be required to work for more than six hours during a day without an interval of at least thirty minutes for a meal. MGL c. 149 s. 100. The Attorney General’s office has clarified that the 30 minute meal break period can be either paid or unpaid at the discretion of the employer. This law applies to most businesses and industries, with the exception of certain specialized industries such as glass works, iron works, paper mills, print works, and dyeing works. MGLA c. 149 s. 101.

If an employer offers an unpaid 30 minute meal break period, employees cannot be required to perform any job functions during the break and must be free to leave the premises during the break. If the employee has to work during the break, or is restricted from leaving the premises, the employee must be paid for the break period. A recent decision from the Massachusetts Superior Court noted that an employer cannot deduct time from an employee’s paycheck for a meal break unless the employee is “relieved of all work duties” during the break. In that case, the employer had been deducting meal break time from employee paychecks, despite the fact that the employees (a group of security officers) were required to remain on call (and in uniform) during their meal breaks. The Superior Court held that the employees were not “relieved of all duties” during those breaks and, as a result, the employer time deductions were a violation of Massachusetts law.
[Read more…]

ALL SYSTEMS STOP

FLSA REGULATION CHANGES WILL NO LONGER TAKE EFFECT ON DECEMBER 1, 2016

Earlier this year, we posted several messages concerning upcoming changes to the Fair Labor Standards Act (“FLSA”) which were scheduled to go into effect on December 1, 2016.  Most notably, the changes would have approximately doubled the salary threshold required for many employees to be exempt from overtime pay.

Last week, a federal judge in Texas issued a preliminary injunction which will delay the new regulations from going into effect.  It is now unclear if or when the new regulations will be implemented.   The injunction was issued after twenty one states filed an emergency motion arguing that the Department of Labor had exceeded its authority in promulgating the new regulations.
[Read more…]

Important Information on the Commonwealth’s New Pay Equality Law

On August 1, 2016, Governor Baker signed into law An Act to Establish Pay Equity (the “Act”). The Act does not go into effect, until July 1, 2018, and it is too early to tell how it will affect Massachusetts employers. In this article we present a general overview of the Act and what it could mean for employers. We will provide updated analysis of the Act, and any regulations issued by the Attorney General’s office, when the effective date is closer.

The Act prohibits discrimination in payment of wages on the basis of gender. More specifically, the act prohibits paying a lower wage to employees of different genders when the employees perform comparable work. The Act uses a broad definition of “wages”, but fails to define the term “comparable work”, which could lead to a number of lawsuits soon after the Act goes into effect. [Read more…]

Steps Employers Can Take To Prepare For The Changes To The FLSA Regulations

The United States Department of Labor recently made significant changes to the regulations concerning overtime pay for certain employees, which will become effective on December 1, 2016. This week’s article, the final installment in our series, examines the steps employers can take to prepare for the changes to the FLSA Regulations.

Before the new regulations go into effect on December 1, 2016, employers should speak to their managers, accountants, and payroll companies to determine what, if any, effect the Final Rule will have on employee pay.  If it appears that employee pay will be affected by these changes, employers should make arrangements to ensure that workers who will no longer be exempt will receive time and one half pay for work over 40 hours per week.

In the event an employer seeks to avoid payment of overtime, the employer may consider simply raising employee salary to exceed the new $913.00/week threshold for exemption, if the employees would otherwise qualify pursuant to one of the exemptions.  (For more information concerning those exemptions, please refer to our earlier blog posts on this topic).  That way, the employee would “fail” the Salary Test and would not be entitled to earn overtime pay.  In the alternative, the employer could simply limit workers to 40 hour of work per week, so there is no chance that employees work enough hours to be eligible for overtime. [Read more…]

FLSA’s exemption for “Highly Compensated Employees”

The United States Department of Labor recently made significant changes to the regulations concerning overtime pay for certain employees, which will become effective on December 1, 2016. This week’s article examines the changes to the FLSA’s exemption for “Highly Compensated Employees”.

Under the current version of the FLSA regulations, individuals who fall within the definition of a highly compensated employee (“HCE”) are exempt from overtime pay requirements. Generally, an HCE is an individual who is paid a total annual compensation of $100,000 or more, which includes at least $455/week paid on a salary basis. Also, the employee’s primary duties must include performing office or non-manual work, and the employee must perform at least one of the exempt duties or responsibilities performed by an employee who would be exempt under one of the “White Collar Exemptions” for bona fide executive, administrative, and professional employees. For more information on those exemptions, please refer to our earlier blog posts on this topic. Under the Final Rule, the HCE salary exemption will increase to $134,004.00/year.
[Read more…]

Federal Laws Addressing Overtime Pay and the Various Exemptions to Those Laws

The United States Department of Labor recently made significant changes to the regulations concerning overtime pay for certain employees, which will become effective on December 1, 2016.  The article below, the first in a series of articles examining these changes, addresses the current federal laws addressing overtime pay and the various exemptions to those laws.

Overview of the Current Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”) requires that employees be paid at least one and one-half times their regular rate of pay for any hours they work beyond 40 in a workweek.  However, provisions of the FLSA exempt certain employees from this requirement (i.e., excludes them from earning overtime pay) if the employee falls within established statutory exemptions to the overtime requirement.  The exemptions generally apply to workers who earn at least $455.00/week (or $23,660.00/year), and whose job duties fall within one of the so called “White Collar Exemptions” for bona fide executive, administrative, and professional employees.  The employee’s job title, or the mere fact that an employee is paid a salary (rather than an hourly wage) does not determine whether the employee will be entitled to earn overtime pay.  Rather, for one of the White Collar Exemptions to apply, an employee’s specific job duties and salary must meet all of the applicable requirements provided in the Department of Labor’s regulations. [Read more…]

Attorney General’s Updated Regulations for New Earned Sick Time Law

The final version of the Attorney General’s Regulations, which interpret the new Massachusetts Earned Sick Time Law, was released on Friday, June 19, 2015. The final Regulations have a number of significant changes from the draft Regulations issued earlier this year.

One difference found in Section 33.01(3) makes it clear that employers may require or an employee may choose to use paid sick time concurrently with other statutorily provided leave time such as the Family Medical Leave Act, Massachusetts Parental Leave Act, Massachusetts Domestic Violence Leave Act, the Small Necessities Act and other similar leave laws. This clarification fixes the draft Regulations’ language which provided that the Sick Time Law was “in addition to” the above-mentioned leave times. While it is still possible for an employee to take both sick time and time under another leave act consecutively, the clarification that they may be used concurrently makes sense and is helpful. [Read more…]

Sick Time Law Requirement

We believe the Final Regulations from the Attorney General’s Office in connection with the new Sick Time Law will come out sometime later this week or next week.

One requirement of the Sick Time Law is that each employer displays a poster beginning on July 1, 2015 to inform its employees regarding this new law. You may find the poster here in PDF.

Attorney General Offers Safe Harbor For Certain Massachusetts Businesses

The July 1, 2015 effective date for the new Sick Leave law is rapidly approaching. Earlier this week, the Massachusetts Attorney General’s office held the first in a series of public hearing sessions concerning the new law. Among other things, the Attorney General’s office confirmed that the law would go into effect on July 1, 2015, as planned, and that the proposed Regulations issued earlier this month were on track to be finalized by June 19, 2015.

Additionally, the Attorney General’s office also announced a “Safe Harbor” period which would delay full implementation of the law for certain employers. The “Safe Harbor” provision allows certain businesses with existing paid time off policies to be deemed in compliance with the new law while those businesses work toward fully integrating the new law’s provisions into their own existing leave policies. The “Safe Harbor” will be in effect from July 1, 2015 to December 31, 2015. During that period, an employer will be deemed in compliance with the new law if: [Read more…]

Regulations Clarifying the New Earned Sick Time Law in Massachusetts

The Massachusetts Attorney General has issued regulations clarifying the new Earned Sick Time law. Please click here to view the CODE OF MASSACHUSETTS REGULATIONS TITLE 940.

The Attorney General has also scheduled hearings for all interested persons to present data, views, or arguments regarding the establishment and enforcement of the Earned Sick Time law. Please click here to view a list of EARNED SICK TIME HEARING LOCATIONS throughout the Commonwealth.

Doherty, Ciechanowski, Dugan & Cannon, P.C. is comitted to providing our business clients comprehensive coverage and information regarding this new law and how it may affect their business. Please check our Business Blog in the coming weeks for more information.

Part V: Suggestions for Complying with the New “Sick Time” Law

On November 4, 2014, Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law that imposes significant obligations on employers to provide earned sick time to employees. Last week, we examined some common misconceptions employers have about the new sick time law.

As we noted in prior articles, the new sick time law goes into effect on July 1, 2015. Employers should begin taking measures to ensure they are ready to comply with the law when it becomes effective. Employers who fail to comply with the law will be subject to significant penalties and liability.

First, employers should review their existing sick time and leave policies to determine what changes, if any, they will be required to make. Notably, not all existing sick time policies will have to be changed. Some existing plans may already offer benefits at a level that complies with the statute. Employers should speak to their legal counsel to determine whether existing plans already comply with the new law.

Also, employers should consider developing procedures for tracking employee sick time accrual and use, as well as a system for processing sick time pay (if applicable). As we described in prior articles, the new law provides numerous acceptable uses for sick time. Consequently, employers may find it difficult to accurately track what time an employee has used for “sick time” purposes and what time was used for other purposes such as vacation leave. Existing practices simply may not be sufficient. [Read more…]

Part IV: Misconceptions Regarding the New “Sick Time” Law

On November 4, 2014, Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law that imposes significant obligations on employers to provide earned sick time to employees. In our prior blog, we examined potential pitfalls and penalties that employers may face when dealing with employee sick time issues. This week’s article explores common misconceptions regarding the law.

Employers have numerous misconceptions regarding the new “sick time” law. Below, we have addressed three of the most common misconceptions.

One mistaken view that was reported in the media (and is widely believed by employers) is that the law does not apply to employers with less than 11 employees. This is incorrect. The law applies to nearly all employers in the Commonwealth of Massachusetts, excluding the United States government and certain Massachusetts cities and towns. The key difference is that employers with less than 11 employees must provide up to 40 hours of unpaid sick time to employees, while employers with 11 or more employees must provide up to 40 hours of paid sick time to employees to be paid at the employee’s normal hourly pay rate. We addressed this issue in detail in our first blog article on the new sick time law[Read more…]

Part III: Traps for Unwary Employers

On November 4, 2014, Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law that imposes significant obligations on employers to provide earned sick time to employees. In our last installment, Part II: Use of Sick Time under the New Law, we examined the circumstances under which an employee may use sick time under the new law . This week’s article highlights some of the potential pitfalls for employers that come with the new sick time law.

This week our focus shifts to some of the numerous ways employers may unwittingly violate the broad, employee-friendly provisions of the new law and the potential penalties, fines and lawsuits such violations may foster.

Although the new law requires employees to make a “good faith effort” to give advanced notice that sick time will be used and to provide certification of the need for sick time when an earned sick time period covers more than 24 consecutively scheduled work hours, employers seeking to enforce these provisions may unwittingly violate the new law. Employers may not require that the certification explain the nature of the illness or the details of any domestic violence that gave rise to the use of sick time. Also, employers cannot condition payment for paid sick time (or delay approval of sick leave) upon receipt of such certification. The provisions of the new law call into question if an employer should request a certification ( i.e. a note from a doctor) to confirm that an employee was actually receiving medical care, particularly since the new sick time law allows employees to take “sick time” when they are not the ones who are sick. See the last blog post on the numerous and broad allowed uses of “sick time”. [Read more…]

Part II: Use of Sick Time under the New Law

On November 4, 2014 Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law granting employees significant rights to earn and take sick time and imposing new burdens on employers. Last week, we examined the issue of how the new law applies to various Massachusetts employers. This week’s article explores the circumstances under which employees may use their earned sick time under the new law.

Question 4 creates new obligations for employers to provide employees with leave for sick time. Under the new law, employees can use sick time to cover a wide variety of events and circumstances. Employees will be allowed to use sick time in many situations where employers may not have allowed it in the past and which do not actually involve the employee being sick.

Specifically, the new law requires employers to provide sick time for employees to:

(1) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or

(2) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or

(3) attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; or

(4) address the psychological, physical or legal effects of domestic violence.

Employees are, to the extent possible, required to make a “good faith effort” to give advance notice that sick time will be used. Employers may require certification of the need for sick time when an earned sick time period covers more than 24 consecutively scheduled work hours. However, employers cannot condition payment for paid sick time, or delay approval of sick time, upon receipt of such certification, and may not require that the certification explain the nature of the illness or the details of any domestic violence. There are severe penalties for violation of the sick time law such that we encourage employers to avoid asking prying questions or conditioning approval of sick time requests upon obtaining a doctor’s note. We will address potential penalties in our third article next week.

The new statute appears to overlap with certain portions of the Commonwealth’s domestic violence leave law passed in August 2014, which requires employers with 50 or more employees to provide at least 15 days of leave to employees for addressing the impacts of domestic violence. Under that law, the employer is free to determine whether the leave will be paid or unpaid. Notably, the domestic violence leave law requires an employee to first exhaust all annual or vacation leave, personal leave and sick leave unless the employer allows otherwise

Please read Part III: Traps for Unwary Employers concerning the new sick time law and its effect on Massachusetts businesses. If you have questions about Question 4, changes to employee sick time laws, or about any other employment law issues, please contact Attorney Michael P. Doherty, Andrew M. Kepple or one of our other employment attorneys at 508 541-3000.

New Massachusetts Law Granting Employees Earned Sick Time

On November 4, 2014 Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law granting employees significant rights to earn and take sick time. The article below, the first in our series of articles examining the new law, addresses the applicability of the law to various businesses in the Commonwealth.

Massachusetts General Law c. 149 §148C, which becomes effective on July 1, 2015, will require employers to provide up to 40 hours of earned sick time to employees each calendar year. Employees will earn at least one hour of sick time for every 30 hours worked. Earned sick time will start to accrue on the date of hire or July 1, 2015 (whichever is later).

Of note, the statute has different sick time requirements depending on the size of an employer. Businesses with less than 11 employees must provide up to 40 hours of unpaid sick time to employees. Businesses with 11 or more employees must provide up to 40 hours of paid sick time to employees, to be paid at the employee’s normal hourly pay rate. [Read more…]

Massachusetts Voters Approve Ballot Question Regarding Sick Time

Massachusetts voters approved Ballot Question 4 during the election earlier this month. Question 4 creates new obligations for employers to provide employees leave for “sick time”, which is broadly defined in the new statute to include events that you may not at first consider “sick time”, such as:

(1) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or

(2) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or

(3) attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; or

(4) address the psychological, physical or legal effects of domestic violence.

The new law will take effect on July 1, 2015, which will allow you time to review and, if needed, revise your policies and procedures for leave. We believe that the details of the sick time law will force many employers to change some of their policies and add record keeping obligations. [Read more…]

Domestic Violence Leave is now law in Massachusetts

On August 8, 2014, Governor Deval Patrick signed into law legislation, which was effective immediately regarding domestic violence leave for employees. The new law impacts both public and private employers with 50 or more employees. Employees impacted by domestic violence are now allowed to take up to 15 days of leave in any 12 month period so long as certain criteria are met.

In order to be eligible to take leave, the employee, or a family member of the employee, must be a victim of abusive behavior. Covered family members include spouses, persons who are dating or engaged and cohabitating, persons having a child in common, parents, children, or a person in a guardianship relationship. The new law also defines abusive behavior as domestic violence, stalking, sexual assault, or kidnapping.

Leave may only be used by the employee in a number of circumstances, including to seek or obtain medical attention, counseling, victim services, various legal proceedings, and to address other issues directly related to the abusive behavior. Employees must have exhausted all personal, vacation and sick leave prior to requesting leave under this law. The employee requesting leave cannot be the perpetrator of the abusive behavior against such employee’s family member. [Read more…]

Properly Classifying Workers in Massachusetts

Massachusetts law (as well as Federal law) draws a distinction between “employees” of a business and “independent contractors” who perform work benefiting a business. A worker’s classification has a significant impact on the employer and the employee, including the way workers are paid, availability of benefits, the ability to collect unemployment and workers compensation payments. Massachusetts laws impose harsh penalties on businesses that improperly classify employees as independent contractors. Business organizations that improperly classify employees as independent contractors could be subject to tax penalties, civil lawsuits, and potential criminal penalties. The first step in avoiding such penalties is to better understand the distinction between employees and independent contractors.

Massachusetts General Law c. 149 § 148B sets forth three criteria that must be satisfied in order to properly classify a worker as an independent contractor (the “Three Prong Test”). Notably, all three of these criteria must be satisfied before a worker can be classified as an independent contractor, as opposed to an employee. The criteria applied under Massachusetts law as follows:

(1) the individual is free from control and direction in connection with the performance of the service;

(2) the service is performed outside the usual course of the business of the employer; and

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. [Read more…]

The High Cost of Unpaid Internships

by Andrew Kepple

For many years, internships have provided students with an effective way to gain real-world work experience.  However, there are numerous pitfalls connected with hiring unpaid interns.  Recently, there has been an increase in litigation by unpaid interns against employers for failing to pay minimum wage in violation of the Fair Labor Standards Act (FLSA) and state minimum wage laws.  These lawsuits are significant because violations of minimum wage laws often results in substantial penalties.

Only certain individuals working in the private sector may do so without receiving compensation.  Under federal law, six criteria are considered when determining whether an intern will be allowed to work without pay.  The six factors include whether the internship is similar to training the intern would receive in an educational environment, whether the intern will displace regular employees, and whether the employer receives a direct benefit from the intern’s work.  A more detailed explanation of these factors can be found in the United States Department of Labor’s Wage And Hour Division Fact Sheet #71 .

If you have questions about hiring an unpaid intern for your business, or about any other employment law issues, please contact Attorney Michael P. Doherty, Andrew M. Kepple or one of our other employment attorneys at 508 541-3000.

Legal Protection for “Whistleblower” Employees in Massachusetts

The term “whistleblower” usually refers to an employee who reports an employer’s wrongdoing to a government agency or law enforcement organization.  In some cases, employers may attempt to take retaliatory action by discharging, suspending, or demoting a whistleblower.  However, there are a variety of state and federal laws which protect whistleblowing employees from employer retaliation.

At the state level, Massachusetts G.L. c. 149 § 185 protects public employees who engage in whistleblowing activity.  Section 185 states that a public employer may not retaliate against an employee who discloses (or threatens to disclose) practices which the employee reasonably believes are in violation of certain laws, rules, or regulations.  Employees who are subject to wrongful retaliation may be awarded reinstatement of employment, benefits, attorneys’ fees, and up to three times the amount of wages that were lost due to the retaliation.

[Read more…]

What’s in your Employee Handbook?

By Craig A. Ciechanowski, Esq.

A recent Federal District Court decision has sent a strong reminder to employers that crucial employment policies need to be standalone policies and not simply included in an employee handbook which the employer reserves the right to change.

In Domenichetti v. The Salter School, LLC, a former employee brought a claim for retaliation she claimed to have suffered after requesting maternity leave under the Family and Medical Leave Act.  The employer sought to enforce an arbitration provision included in its employee handbook to block the suit.  The Court refused to enforce the provision, finding that the employer retained the unilateral right to modify the handbook without notice.

Crucial employment policies should be in standalone, separate, mutually binding agreements, which the employee must acknowledge, sign and return to the employer.

For questions about any business matters, contact Craig A. Ciechanowski, Esq. at cac@dcdclaw.com or one of the business attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Employers and New Form I-9

By law, all employers (public and private), must obtain from each employee a completed Form 1-9 no later than the first day of employment.  The employer is required to physically examine documentation provided by the employee which establishes the employee’s identity and employment authorization.  The employer must complete the employer’s portion of Form 1-9 no later than the third day after employment commences.

A new Form I-9 has been issued by the United States Citizenship and Immigration Services be used by May 7, 2013.  A copy of the new form could be found at www.uscis.gov.  The new form need only be used for new employees; if the employer has a properly completed Form I-9 on file, a new form is not required.

For questions about any business matters, contact Craig A. Ciechanowski, Esq. or one of the business attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

The Intersection of Employment, Business and Divorce

The Massachusetts Appeals Court recently upheld a Probate Court ruling in a divorce case involving a family owned business.  During their marriage, the husband and wife owned and ran the business together.  In their divorce, both the husband and wife sought sole ownership of the business.  The judge awarded the business to the husband and, on the husband’s request, entered an order prohibiting the wife from operating a competing business.  This is the first occasion in Massachusetts where such an order has been entered in a divorce case.  Non-competition agreements have long been the source of litigation and concern for employers and employees.  The imposition of a non-competition prohibition in the divorce context will only add to concerns regarding the scope, fairness and enforceability of non-competition provisions.  This case also demonstrates the overlap between employment, business and family law issues that often arise when a person who owns a business obtains a divorce.  Conversely, this case demonstrates the importance of business owners seeking to protect their business before marrying with prenuptial agreements.

At Doherty, Ciechanowski, Dugan & Cannon we have family law, employment law and business law attorneys who can help you with all of these issues.  For more information, please contact one of our attorneys.

Criminal Offender Record Information (“CORI”) reform law in effect

As discussed in our prior blog posts from November 2010 and our subsequent update, all the provisions of the two year old Criminal Offender Record Information (“CORI”) reform law have all been put into effect as of May 4, 2012.

Below is a “to-do list” for employers as they amend their policies and practices to comply with the new law:

•    Employers that access records through CORI must obtain acknowledgement forms from their applicants and retain the forms for at least one year.

•    Employers must limit the dissemination of information obtained from CORI to employees on a “need to know basis.”

•    If information obtain from CORI is disseminated outside of the employer’s organization, the employer must keep a secondary dissemination log.

•    Employers that conduct at least five criminal background checks a year must maintain a written policy about the use of criminal background information.

•    If an employer hires a third party to conduct background checks, it still must provide notice and due process under the CORI reform law if they decide not to hire an applicant because of his or her criminal background.

•    If an employer chooses not to hire an applicant because of a criminal background history, the employer must give a copy of the criminal history record to the applicant.

Employers need to be careful as they request criminal background information about potential employees from CORI and from applicants themselves.  A cautious employer must be sure to implement policies that strictly follow the mandates of the CORI reform law.

The dangers of misclassifying employees as independent contractors under Massachusetts law

The failure to properly classify workers as employees in Massachusetts can cause employers to incur tax penalties, increase their insurance liability, receive civil and criminal fines and become subject to litigation.

One potential area of liability for misclassification is of wages.  Classification as an employee affords a worker various protections including minimum wage and overtime pay.  Massachusetts courts have awarded a misclassified worker the wages he would have earned as an employee regardless of the fact that he was actually paid more as an independent contractor than as an employee. [Read more…]

Changing Terms of Employment Agreement Voids NonCompete

A recent Massachusetts Superior Court case reinforced the importance of an employer honoring its contractual obligations with employees if it hopes to enforce a noncompete agreement.  The facts involved a company that sold its assets to a new owner.  The new owner changed the employee’s compensation structure by reducing the employee’s salary and instituting a new compensation structure by which the employee could possibly earn as much or more money under a bonus structure.  The Court agreed with former employee that the new employer could not enforce the noncompete agreement, which the employee had signed before the company was sold, finding that the new owner’s change to the employee’s salary was “a material change” in the employment relationship which voided the preexisting noncompete agreement.

This case underscores the importance of a purchaser of a business understanding that if it wishes to maintain noncompete agreements with the employees of the company it purchased, it cannot make a material change to the employment relationship or should negotiate new noncompete agreements with the employees.  All employers should understand that if they make other changes in the employment relationship, a review of existing noncompete agreements should be conducted and new noncompete agreements should be considered.  For example, when an employee receives a promotion, a new noncompete agreement should be considered.  If you have questions regarding noncompetition agreements or any other matter, please do not hesitate to contact one of our employment or business lawyers.

MA Employeers Now Have Additional Restrictions Concerning an Applicant’s Criminal History

This is an update on our article published November 2010 regarding; Criminal Offender Record Information Administrative Procedure Reforms

In May, Massachusetts employers will have to follow certain steps when asking an applicant about her criminal history.

Last August, Gov. Patrick signed into law additional protections to persons with a history of criminal charges or convictions.

As of November 4, 2011, a potential employer cannot ask about criminal history on an initial application unless “(i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction for 1 or more types of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.” MGL c. 151B § 4(9.5). The provision is commonly known as “Ban the Box.”

On May 4, 2012, most employers will have additional restrictions concerning an applicant’s criminal history as the interview process continues. These employers will have to certify that it is requesting the history for an authorized purpose and that it has permission from the applicant to make the request. MGL c. 6 § 172(30)(c). The new law also requires most employers in possession of a criminal offender record to provide the record to the applicant prior to questioning the applicant about his criminal history. MGL c. 6 § 172(30)(c).

[Read more…]

Transgendered Persons and Non-discrimination in Massachusetts

What It Means to the Business Owner

In late 2011, Massachusetts passed “An Act relative to gender identity” (“the Act”). The Act, which will take effect on July 1, 2012, defines “gender identity” and adds it as a protected characteristic under various parts of the law. Once enacted, the law prohibits discrimination on the basis of gender identity in schools and in hiring, and classifies a crime based upon a person’s gender identity as a hate crime. Discrimination on the basis of gender identity will also be subject to investigation by the Massachusetts Commission Against Discrimination.

Under the Act, “gender identity” means a person’s chosen gender-related identity, as shown by their medical history, consistent assertion of that gender identity, or “any other evidence that the gender-related identity is sincerely held.” This language is fairly broad and does not provide a bright-line test for when a person has the protection of the law and when they do not.

[Read more…]

NLRB Again Postpones Effective Date of Rule Requiring Employers to Post Notice of Employee Rights

On August 25, 2011, we posted an article regarding the new National Labor Relations Board (“NLRB”) rule requiring employers to post notice regarding employee’s rights.  The new rules were originally scheduled to take effect on November 14, 2011, but were postponed to January 31, 2012.  The NLRB postponed the enforcement of the final rule for a second time until April 30, 2012.

Additional information regarding this new rule can be found in the article titled Employee Rights Under the NLRA.  If you have questions about Massachusetts business law or employment law, or think your business could benefit from advice about implementing this new posting rule, please contact Massachusetts employment lawyer, Attorney Michael Doherty.

How to Maintain and Share Access to Employee’s Personnel Records

Massachusetts General Laws Chapter 149 § 52C (the “Act”), creates an affirmative obligation for employers to provide notice to employees whenever certain negative information or documents are placed into an employee’s “personnel record.”

Employer Notification Obligation

The Act specifically provides that:

[a]n employer shall notify an employee within 10 days of the employer placing in the employee’s personnel record any information to the extent that the information is, has been used, or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.

This represents a dramatic change from the previously existing law, and may require employers to alter how personnel issues are documented.  Pursuant to the Act, every time a document meeting this broad but unclear definition of negative is placed into an employee’s file, the employer is required to notify the employee.

[Read more…]