May 18, 2012

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...]

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.

[Read more...]

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.