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Author: Ann Cascanett

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Is Your Employment Agreement With Your Nanny Illegal?

If you employ a person or are a person that performs domestic jobs within a household such as housekeeping, cleaning, childcare, cooking, home management, elder care, or other services of a domestic nature, you are likely affected by the passing of the Domestic Workers’ Bill of Rights. This newly passed law applies to domestic workers regardless of their immigration status and is enforced by the Attorney General’s office.

This law does not apply to the following individuals: (1) individuals that, on average, provide childcare for 16 hours or less per week or those who provide more but on a casual, irregular or intermittent basis (i.e. school vacation, etc.; (2) personal care attendants (PCAs); and (3) staffing agencies, employment agencies, or placement agencies.  This law went into effect on April 1, 2015. A brief overview follows.

First and foremost, an employer must provide a domestic worker with a notice of all state and federal laws that apply to domestic workers.  If you do not have a written employment agreement with your employee you should enter into one immediately.  The new law requires employers to maintain payroll records and other documentation regarding the time worked, overtime, breaks, other time off, other types of compensation, reimbursement, etc.  You must also provide and retain documentation regarding personal days, sick days, vacation days, transportation, health insurance, pay raises, severance, termination, etc.  Please consult an employment attorney to assist you in ensuring that you are complying with the numerous requirements of this law.  Remember, much of this statute is strict liability.  In other words, it does not matter if the violation is accidental or the result of an error or mistake especially in regard to maintaining records.

The law further requires that domestic workers earn at least the minimum wage of $9.00 per hour, which will increase to $10.00 per hour next year.  Domestic workers also must be given specific periods of rest time depending on how many hours they work.  Whether rest time will be paid or not should be part of the employment agreement, which needs to be in writing. Domestic workers are also entitled to overtime pay for work over 40 hours per week.  The only deductions an employer is permitted to take are those permitted by law (i.e. taxes, health insurance, etc.)  The employer can take additional deductions such as meals and beverages if it is agreed upon by the employee and is in writing.  Although, the amount and circumstances permitting the deductions have limitations and restrictions.  Lodging can only be deducted under certain circumstances.

The following issues, in particular, are not ones that most employers of domestic workers would be aware of or accustomed to.  For instance, an employer may now be responsible for unemployment insurance, workers compensation insurance, sick time, paid leave, parental leave, and other leave.  Employers of domestic workers must also provide their employees with reasonable access to a phone and internet. An employer must also protect the privacy of his/her domestic worker(s).  As an employer you cannot discriminate or retaliate against an employee for complaining or making complaints to agencies or authorities regarding discrimination and labor laws.  Lastly, if you employ a domestic worker that resides in your home or for whom you provide lodging and you terminate said employee without cause, said employee is entitled to written notice, 30 days of lodging, and/or severance pay.

Please contact us at info@cascanettlaw.com to ensure your employment agreement covers all aspects of the domestic worker law, that you are maintaining proper documentation and records, and to obtain all necessary information to prevent your unintentional violation of this law.  If you are a domestic worker and feel that your rights have been violated, contact us at info@cascanettlaw.com to understand your rights.

The ABC’s of Divorce

It is a rough day when you realize that your marriage is over.  There are so many questions and even when the parties are in agreement about the divorce, no one really knows where to begin.  Here are the basics that everyone getting divorced should know.

Figure Out What You Can Agree On

The first step is to determine whether you and your spouse will be able to reach an agreement to resolve issues of division of assets, custody, visitation, child support, and alimony.  If both parties are willing to work together, you should consider mediation to help work out the details before emotions escalate the situation resulting in a lack of cooperation among the parties which may not be in the best interest of any children.  Even parties with the best intentions run into issues when trying to disentangle their lives from one another.  A mediator can assist the parties in reaching a fair and equitable agreement in regard to assets and a parenting plan that is best for children. This is also, generally, the least expensive avenue to pursue in obtaining a divorce.  If the parties can agree on the terms of the divorce then you will file an uncontested “1A” divorce.  If the parties cannot agree on the terms of the divorce then you will file a contested “1B” divorce.

The Importance of Civility Among Divorcing Parents

If the divorcing couple are parents it is important to remember that the more amicable the divorce is the easier and less tumultuous it is for not only yourselves but more importantly for your children.  It is always in the best of interest of children for parents to be able to work together.  Divorcing parents with minor children are required to attend a Parenting Education Program by a Court approved educator.  This certificate of attendance will need to be filed with the Court after the Complaint is filed. The Court will not place your divorce on the calendar for hearing without the Certificate being filed by each parent.  Both parents must take the course and the course is attended separately.  The purpose of the course is to educate parents on how to communicate during and after the divorce to maintain a civility between the parties and to understand the impact of divorce on children.  Thus, I always recommend that clients take this program as soon as possible. The clerk’s office at your local Probate and Family Court will have a list of approved programs.

What Documentation Will I need?

The Probate and Family Court requires disclosure of the following information by documentation within 45 days after service of the Complaint.  (See Rule 410- Mandatory Self Disclosure)

  1. Federal and state income tax returns and schedules for the past 3 years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to w-2s, 1099’s, 1098’s, K-1, Schedule C and Schedule E.
  2. Four (4) most recent paystubs from each employer.
  3. Documentation for the cost and information of available health insurance.
  4. Statements for the last 3 years of all bank accounts of each party or held for the benefit of many minor child.
  5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties’ minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
  6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint.
  7. Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint.

 

Filing the Complaint

Once a Complaint for Divorce is filed neither party can change, hide, sell, or transfer assets.  The Court will not look kindly upon the party that attempts to hide and deprive assets that are to be divided.  Remember, in Massachusetts all assets are “on the table” including property, gifts, assets, inheritances, pensions, etc. that were received, earned or obtained prior to and during marriage and occasionally those that are anticipated.

Who Has Custody?

It is also important to remember that until the Court orders otherwise, both parents share physical and legal custody of their minor children.  If the parties can work together to reach an agreement, it is advisable to consult with a mediator and/or attorney to assist in the preparation of a separation agreement based upon the wishes of the parties.  Even if you think you can resolve all of the issues on your own, it is advisable to consult with a divorce attorney to ensure you have covered all the issues that are likely to arise so you are not brought back into court to modify agreements based upon future changes.  It is also advisable to consult a divorce attorney so that assets are divided equitably, as this part of a divorce cannot be modified at a later time even if there is a substantial change in circumstances.  Modifications are generally limited to issues of custody, visitation, and child support.

If divorce is inevitable contact us at info@cascanettlaw.com so we can help you through this process.  We will assist you in obtaining a divorce with dignity and respect.

What Does “Equitable Division of Assets” Mean?

In Massachusetts, upon divorce, the Court will equitably divide the parties’ assets, regardless of the source, if they cannot reach their own agreement.  However, equitable division of assets does not mean 50/50. It means a fair division of the assets based upon the following factors:

  • length of marriage
  • conduct of the parties during marriage
  • health
  • age
  • occupation
  • vocational skills
  • station
  • amount and sources of income
  • employability
  • estate
  • debts
  • needs of the parties, individually
  • each parties ability to acquire capital assets and income in the future
  • amount and duration of alimony
  • needs of dependent children
  • action of the parties regarding their respective estates during the marriage
  • contributions to the family unit as a homemaker.

 

It is imperative to remember that the Family Court has broad discretion on these issues and an Appeals court would only overturn a decision when it is PLAINLY WRONG. In Massachusetts, all assets are on the table.  That is all assets, inheritances, gifts, real estate, pensions, 401Ks, etc. that were received before and during the marriage. This applies regardless of whether the party kept it separate from marital property and assets that were received or obtained together during the course of the marriage.  It is also important to remember that the division of assets is a ONE-TIME event.  It cannot be modified such as alimony or child support later on when there is a substantial change in a parties’ situation or circumstance.

As you will not get a second bite at the apple it is imperative that you consult with a divorce attorney and disclose all information regarding each parties’ assets as early as possible.  The division of the parties’ assets will likely impact each parties’ quality of life and lifestyle following the divorce.  For questions or assistance regarding divorce, division of assets and other related issues contact us at info@cascanettlaw.com

A Non-Custodial Parent’s Guide to Child Support

A non-custodial parent is a parent whose children do not live with him/her the majority of the time. In other words, your children live with the other parent or some other guardian more often than they live with you. In Massachusetts, both parents are financially responsible for their children’s support. As a result, the non-custodial parent usually must pay child support for their children, which is used for housing, education, food, clothing, child care costs, medical needs, etc.

Child support is generally determined by the combined income available to both parents. To get an idea as to what your child support payment would be you can access the child support guideline worksheet that can be found at http://www.mass.gov/courts/forms. Simply input child support guidelines worksheet in the word search box. It is easier to input the income information into the document than to complete it on your own, as it will automatically calculate the amount of support you will likely be responsible to pay.

A Court can order you to pay more or less than the child support you would be responsible for according to the Child Support Guidelines. However, if the Court is going to diverge from the guidelines it must file a form entitled Child Support Findings for Deviation from Guidelines. This will include the reasons for the deviations.

If there is a Court Order for child support or an agreement for child support that a Court has accepted (a Judgment) it can only be changed by the Court. You are responsible for the ordered amount of child support until it is changed by the Court. Once a Court Order for child support is in place, your payments will be made through the Department of Revenue (DOR). Most courts have an office on the premises. Make sure to keep the DOR apprised of changes in address, employment, income, etc. In order to change your child support payment there must be a change in circumstance. An example of a changed circumstance would be an increase or decrease in one parent’s income. Another likely cause for change is a change of one parent’s income due to unemployment, disability or other acceptable reason. Sometimes, the DOR can assist you in assessing whether you are likely entitled to a change in child support or with assistance in seeking a modification.

If you have questions about child custody, child support, or need assistance with modifying your child support, contact a family lawyer at info@cascanettlaw.com.

How to Handle Sexual Harassment in the Workplace as an Employer

In Massachusetts, employers with six or more employees are legally required to adopt a written policy against sexual harassment. Massachusetts requires more than the federal statute thus the focus of this article is on state standards, which meet the minimum federal requirements. The state statute requires the following information to be covered in the policy:

• a statement that sexual harassment in the workplace is unlawful;

• a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment, or for cooperating in an investigation of a complaint of sexual harassment;

• a description and examples of sexual harassment

• a statement of the potential consequences for employees who are found to have committed sexual harassment;

• a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and

• the identity of the appropriate state and federal employment discrimination enforcement agencies and instructions as to how to contact such agencies.

It is further advised that there is a policy that prohibits sexual content via voicemail, e-mail, graphics, downloaded material or websites in the workplace. These policies must be presented to employees prior or simultaneous to the time the employee begins working. The employee should sign an acknowledgment that it received the policy upon hiring or starting work and again annually. The policy should also be posted in the workplace.

A proper sexual harassment policy will have a formal complaint procedure. There should be designated persons to receive complaints. An employer should never discourage the filing of a complaint or require a complainant to first file a complaint with the MCAD or EEOC. Furthermore, an employer should never require the complainant to confront the alleged perpetrator. An employee should also never discourage a complainant from filing a complaint with the MCAD or EEOC or from cooperating with an internal investigation or one by the MCAD or EEOC.

A complaint should always be followed by a fair and confidential investigation, even if the employee requests no investigation should occur. There should also be interim measures during the investigative process to separate the complainant from the alleged harasser during the investigation period.

Any determination should be written that detail the investigation and explain the conclusions reached. If there is a determination that sexual harassment has occurred the employer should take immediate action. The action should prevent any further harassment and ensure it does not resume, and that no retaliation has occurred. Immediate action requires prompt and proper disciplinary action against the offender and, if appropriate, training of said employee. Lastly, the complainant should be restored any lost benefit or opportunity as a result of the harassment.

Contact an employment attorney for assistance reviewing, updating or creating a sexual harassment policy that provides a thorough procedure for complaints, investigation, determination and remediation. An employment attorney can also assist you with training and educating your employees. For a consultation regarding your sexual harassment policy contact us at info@cascanettlaw.com.

How Can I Make Sure My Child’s School Protects Against Bullying?

To know whether your child’s school has an adequate bullying prevention policy in place, you must first ensure that you are maintaining a dialogue with your child. No parent should rely on a school to ensure their child is not being bullied. Most children, especially those that are being bullied, don’t like to talk about it. You can start the dialogue by asking some simple questions such as:

  • Do you ever see anyone get bullied at school?
  • What happens when you see someone getting bullied? (Do other students or adults step in? Does it get reported?)
  • What does your school teach you to do when you are bullied or see someone bullied?
  • Have you ever been bullied?

The Importance of Parental Involvement

Asking your child questions about bullying at their school can help you assess how active their school is regarding bullying.  A school that has a multifaceted and effective bullying program in place will allow your child to respond to these questions… except for the last question, as children generally don’t like to admit when they are being bullied.  This is why it is important, as a parent, to remain involved in your child’s day to day life at school by asking questions (i.e. Tell me something good that happened? Tell me something you didn’t like? What was the best part of your day?  What was the worst? What was the funniest thing that happened? Etc.)

When to Review the Student Handbook

If your child can tell you about the school’s bullying program than your child’s school likely has a good bullying prevention program.  If your child cannot then you should look to your school’s student handbook for its policy regarding bullying. The student handbook should have a policy regarding bullying in place.  Most schools also have a code of conduct that addresses proper behavior and defines bullying, which, in turn, assists in the prevention of bullying.  Schools that are the most effective at preventing, handling and stopping bullying have a multi-faceted approach that have community wide involvement. If your child cannot discuss the school’s bullying program then your child’s school can be doing more to address bullying.  To prevent bullying a school requires the assistance of its teachers and staff as well as its students and parents.  Become active in your child’s school and contact your school’s PTO/PTA/PTG and request bullying being placed on the agenda for the next meeting.

If Your Child is Being Bullied…

If your child is being bullied, stay on top of it.  Make sure your child’s school is also following up. A “let’s wait and see” approach is never acceptable. If you feel the school is not responding to the needs of your child contact the teacher, the principal, the superintendent and the school board, so your message is heard loud and clear.  This also takes the issue out of the hands of the school’s teacher and/or administrator if they are not actively working to protect your child. Contact the PTO/PTA/PTG and other students’ parents to see if they will assist too.

It is never advised to confront the bully directly, as this may cause the bully to retaliate further against your child.  It is also never advised to confront the bully’s parent(s) directly either. It is best to go through the school or a neutral party such as a teacher, coach, counselor, administrator, etc. as often bullies do not have good parental oversight and/or involvement at home.

If you and your child are not getting the support you need to prevent or stop bullying at school, contact an education lawyer at info@cascanettlaw.com for further assistance.

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