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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.

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 to Handle Sexual Harassment in the Workplace as an Employee

Since every situation and person is different, you should act in a manner that makes you feel the most comfortable, supported, and safe.

If you believe you are being sexually harassed, you should always consult your employee handbook or policy and follow the procedure.  You should also put your complaint in writing and take notes on the details of the harassment.  The details should include information such as the date, time, and place of the incident.  Your notes should also include any witnesses and what was said and/or done during the incident. If the harassment was via a digital format, you should save a digital copy as well as a physical copy, if possible.

If you feel comfortable and safe confronting your harasser you should:

  1. Explain what behavior you feel is harassment, but be specific.
  2. Tell the harasser that the attention you are receiving and/or that their behavior is bothering you and making you uncomfortable.
  3. Then ask him/her/them to stop.
  4. You should also make a detailed note of this contact.
  5. Even though you have attempted to deal with this matter directly, you should still tell a supervisor, manager, human resource personnel, or another coworker of the steps you have taken in addition to the issue for your complaint.
  6. You can also contact an EEOC or MCAD counselor to discuss your rights even if you do not wish to file a complaint.
  7. You should continue to do a good job at work and keep copies of any reviews, evaluations, notes, memos or emails indicating you are doing a good job.

 

If you do not feel comfortable or safe confronting your harasser you should:

  1. Report it to a designated person as indicated in your employee handbook or policy. You should also tell a co-worker.
  2. Make a detailed note of your reporting the complaint.
  3. You can also contact an EEOC or MCAD counselor to discuss your rights even if you do not wish to file a complaint.
  4. Should you wish to file a formal complaint as a result of the harassment you have 180 days (approx. 6 months) to file with the EEOC or 300 days to file with the MCAD.
  5. Don’t be afraid to seek support from family and friends as this is a difficult situation to deal with.
  6. Continue to do a good job at work and keep copies of any reviews, evaluations, notes, memos or emails indicating you are doing a good job.

 

If you are being harassed at work and believe your rights have been violated you should consult an employment and/or civil rights lawyer.  The state and federal agencies that handle discrimination (the MCAD and the EEOC) also contain valuable information on their websites.  For a consultation regarding your right to be free from harassment contact us at info@cascanettlaw.com.

An Overview of Wage & Hour Laws

In Massachusetts, wage and hour laws are governed by the Federal Labor Standards Act (FLSA) and state labor laws, which are generally found in Mass. General Laws chs. 149-151. It is important for employers to adhere to wage and hour laws, as the penalties can be significant, even if the violation was not intentional. Penalties can include fines, double or triple awards, in addition to awards of costs and attorneys fees. Employees need to know their rights and that there are laws that protect their right to fair and prompt payment of wages.

What are the current minimum wages?

The current federal minimum wage is $7.25/hr but in Massachusetts the minimum hourly wage is $9.00/hr. Overtime pay is required for all employees that work more than 40 hours within any given workweek. It does require that the employee actually work over 40 hours (paid time- including sick, vacation, holiday, etc. is not considered for overtime assessment). It also has no bearing on what day of the week or shift is worked within the work week. Nor does it matter, with a few limited exceptions, that the 40 hours are worked over a period of a few days.

What do wage & hour laws say about national holidays?

Retail stores cannot force employees to work on New Year’s Day, Memorial Day, the Fourth of July, Labor Day, Columbus Day, or Veterans Day. Employees who choose to work on one of these holidays must be paid time and one-half. Further any non-exempt retail employees must be paid time and a half for working on Sunday.

Exempt vs. Non-exempt Employees

There are specific tests to determine whether an employee is “exempt” from the overtime requirement. Generally, to be an exempt employee one must be a salaried employee and in an administrative, executive and/or professional position. Some computer personnel and outside sales individuals are also exempt. It is imperative to consult a Massachusetts employment lawyer to determine the classification of employees as there are significant penalties for the misclassification of employees, even if it is an “honest mistake” and unintentional.

The manner and time period in which employees are paid is also regulated. The requirements are different for hourly versus salaried employees. Hourly employees cannot be paid less frequently than bi-weekly. Salaried employees cannot be paid less frequently than on a monthly basis. Nonetheless, all employees must also receive a pay slip, check stub or envelope showing the name of the employer; the name of the employee; the day; month and year; the number of hours worked; the hourly rate; and the amounts of deductions or increases made for the particular pay period.

Employees who are fired or let go must be paid all wages owed on the day of discharge. Employees who quit, retire, or leave employment for other reasons must be paid in full on their next regular payday. Commissions must also be paid when the amount of such commissions has been definitely determined and has become due and payable under the company’s plan.

If you believe your employer has violated a wage and hour law you should consult an attorney regarding your rights.

Wrongful Termination in Massachusetts

Can Someone Get Fired for No Reason?

Many people that have been fired from a position do not understand why they were fired when they have been good employees.  What most people do not understand is that in the Commonwealth of Massachusetts, most employees are considered at-will.  Essentially, this means employers have the right to fire you or let you go even if you were a good employee.  Very few employees are hired pursuant to a contract.  One is usually a contract employee if you have a contract that dictates a period of employment and rate of pay for said period.

Can An At-Will Employee Sue for Wrongful Termination?

As a result, an at-will employee generally only has an ability to sue for wrongful termination if he/she is discriminated against.  In some instances, an employee may have a cause of action if the employer has violated its own policies of employment.  This is usually dictated by the handbook.

What to Do if You Feel Wrongfully Terminated

If you feel you have been wronged in your termination or separation from your employment, there are steps that you should take to protect your interests.  First, it is prudent to consult with an employment lawyer prior to signing any severance agreement or release of any kind, as you are likely waiving any right to sue upon signing it.  Your employment attorney can also make sure you are receiving the best severance possible.  Secondly, you should request a copy of your employment file and, if necessary, place a response in your file.  Lastly, you should make sure you obtain a copy of the employee handbook that existed at the time of your hire and the handbook in place at the time of termination.

Discrimination laws only allow individuals 300 days to file a claim, so time is of the essence in gathering your materials and consulting with an employment attorney.  Lastly, if you plan to file for unemployment benefits following your employment separation, it would be prudent to consult with an employment attorney, who can assist in an appeal of a denial of benefits in the event that your claim is denied.  One generally has only 10 days to request a hearing following the denial of benefits.

Enforceability & Liability of an Employee Handbook

How Often Should My Company Review its Employee Handbook?

It is imperative to regularly review and update one’s employee handbook to avoid liabilities.  More specifically, the individual needs of each workplace should be considered and assessed with the requirements of state and federal law.  Policies should be developed that reflect not only the size and philosophy of the company, but also the needs of its employees.  It’s prudent to have an employment lawyer review and regularly update one’s employee handbook in order to ensure it is enforceable and is written to shield the company from foreseeable liability, as it relates to its employees, past, present, and future. Without such review and implementation, employers can make themselves vulnerable to litigation for having outdated, erroneous, or absent policies that could protect them.

The specific language of the policies can create liabilities not intended by employers.  If policies become too specific and/or do not contain disclaiming language,  an implied contract can be created.  Implied contracts can overrides the liberal policies of being an at-will employment state.  Thus, opening up employers to liabilities and lawsuits it never intended.

What Topics Should My Employee Handbook Cover?

At a minimum an employee handbook should cover the following topics:

  1. 1. That employment is at-will (this should be addressed regularly throughout the handbook)
  2. 2. A Non-harassment statement (as required by Massachusetts statute)
  3. 3. A social media policy
  4. 4. A standards of conduct policy
  5. 5. A signature page(s) (indicating an employee has received and accepts the handbook with due consideration); and an anti-retaliation policy.
  6. 6. An arbitration clause should be considered in order to limit the expense and time of traditional litigation.

It is prudent that these issues be reviewed and drafted by an employment attorney to avoid the creation of any unintentional liabilities such as an implied or actual employment contract, which would severely limit a company’s ability to terminate an employee.

New Case Law In Massachusetts

Recent Massachusetts case law indicates that clauses which indicate that an employer may change and/or add to its employee handbook without notice to employees can cause certain clauses to be unenforceable, especially those governing arbitration clauses.  As such, it is likely that to create an enforceable handbook that limits a company’s liability, the handbook may need to be divided into specific sections, which will likely require separate signatures from the employee.  This is a departure from the traditional handbook which has one signature indicating review and receipt of the handbook.

For consultation to draft an employee handbook, or for assistance reviewing and updating an employee handbook, contact Cascanett Law.

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