February 23, 2012

Employment Law Blog

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...]

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...]

NLRB Postpones Effective Date

NLRB 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 scheduled to take effect on November 14, 2011.  We are pleased to report that on October 5, 2011, the NLRB postponed the enforcement of the final rule until January 31, 2012.

Additional information regarding this new rule can be found in the original article.  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 the business and employment law attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Employee Rights Under the NLRA

New National Labor Relations Board Rule Requires Employers to Post Notice Regarding Employee Rights Under the NLRA

On August 25, 2011, the National Labor Relations Board (“NLRB”) published a final rule which requires most private employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”).  Employers covered by the new rule must post the notice in a conspicuous place and provide basic NLRB contact information.

In addition to these basic provisions, the notice also informs employees of their rights to:

  • Organize a union and negotiate wages, work hours, benefits, and other similar benefits;
  • Discuss wages, and working conditions with co-workers or a union;
  • Join or form a union;
  • Bargain collectively;
  • Strike or picket under certain circumstances;
  • Raise work related complaints directly with the employer, a government agency, or a union; and
  • Elect not to join a union.

This posting requirement applies to almost all employers covered by the NLRA, which excludes agricultural, railroad and airline employers.  The posting requirements also do not apply to the United States Postal Service.  Certain limited exceptions exist for small businesses that do not meet certain minimum revenue guidelines, but these exclusions are very narrow and generally only apply to employer with less than fifty thousand ($50,000.00) dollars a year in revenue.

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Are Non-Competition Agreements Enforceable in Massachusetts?

In appropriate circumstances, Massachusetts courts will enforce non-competition agreements and prevent employees from competing with their former employers. Non-competition agreements can be part of an employment contract signed at the start of employment, or executed as a separate contract at a later date.  A non-competition agreement is a promise by an employee not to compete against their employer for a specified period of time, and in a certain geographic location, after the employment relationship ends.  Typically, Massachusetts courts will enforce a non-competition provided the employer can show:  (1) the agreement is necessary to protect the legitimate business interests of the employer; (2) is supported by consideration, meaning both parties received something for executing the agreement; (3) is reasonably limited in all circumstances, including time and space, and; (4) is otherwise consistent with public policy.  However, all cases are particular to their facts and the nature of the employer’s business.  Courts will not enforce arbitrary agreements or if the employer has not taken other reasonable steps to protect itself. [Read more...]

Does my business need Massachusetts workers’ compensation insurance?

Under Massachusetts employment law, every employer is required to carry workers’ compensation insurance for its employees. Proper workers’ compensation insurance will provide coverage for most employee related injuries and illnesses sustained during the course of employment. According to Massachusetts Workers’ Compensation law, an employee is defined as “every person in the service of another under any contract of hire, express or implied, oral or written.” Limited exceptions exist for certain specialized professions and most notably for independent contractors. However, recent changes to the law have made it very difficult for employers to classify an individual as an independent contractor, and the advice of an experienced Massachusetts employment law attorney should be sought before making this classification.

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In Massachusetts what rights do I have when I am terminated or fired?

In Massachusetts, terminated or fired employees have a number of very important legal rights. Massachusetts employment law entitles a fired or terminated employee to compensation for wages you have already earned, vacation time, and any compensation or severance pay you are entitled.  In addition,Massachusetts employment law also entitles a fired or terminated employee to continue their health insurance, and unemployment benefits if you qualify.  If an employer fails to comply with these requirements they can be subject to strict sanctions and fines.

If you are an employee who was recently termination or fired, or are a business owner in Massachusetts who has recently terminated or fired an employee, please contact Massachusetts employment lawyer Michael P. Doherty for an initial consultation.

Does my employer need to have a good reason or cause for firing me?

Generally, Massachusetts employment law defines most employment relationships as “at will,” which means your employer does not need a good reason or cause to terminate or fire you.  However, according to Massachusetts employment law an employer cannot fire or terminate an employee for an illegal reason.  Illegal reasons to terminate or fire an employee include: discrimination due to sex, nationality, disability, religion, or race, retaliation, and whistle-blowing.

If you have an employment contract, under Massachusetts employment law, the contract will determine the reasons you can be terminated or fired.  However,Massachusetts employment law still protects a contracted employee from being terminated or fired for an illegal reason.

If you are an employee and believe you were fired or terminated for an illegal reason, or are a business owner who is concerned an employee may claim they were fired or terminated for an illegal reason, please contact employment lawyer Michael P. Doherty at Doherty, Ciechanowski, Dugan, & Cannon for an initial consultation.

New EEOC Regulations Substantially Expand Disability Impairments

May 15, 2011 | by Attorney Michael Doherty

The Equal Employment Opportunity Commission (“EEOC”) has recently released new regulations that provide guidance for interpreting which impairments qualify as a “disability” under the Americans with Disabilities Act Amendments Act (the “Act”).  Most importantly, the EEOC’s regulations create a new category of disabilities that will “virtually always” qualify as a disability.  According to the new regulations, the following impairments will “virtually always” be recognized as a disability:

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Attorneys in Franklin Massachusetts and Medfield MA lawyers

The Massachusetts attorneys of Doherty, Ciechanowski, Dugan & Cannon provide legal services to Massachusetts businesses, families, and individuals in the practice areas of business law, criminal defense, divorce and family law, employment law, estate planning, personal injury, real estate, and litigation matters.

Our attorneys represent clients throughout Massachusetts and in every county of Massachusetts including Norfolk County, Suffolk County, Worcester County, Bristol County, Middlesex County, Plymouth County, Hamden County, Essex County and Barnstable County. Our attorneys represent clients in Massachusetts’ largest communities including the cities of Boston, Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy.

Our law offices are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whittensville, and Worcester.