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 Nuts and Bolts of Non-Compete Agreements

Whether you are an employer looking to protect your business interests from a discharged or separated employee or a separated employee looking to find new work after separation from your former employer each needs to understand the legal ramifications of the Non-Compete Agreement. In the last year Massachusetts state and federal courts1 have clarified what is necessary to form binding and enforceable Non-Compete Agreements. As a result, Non-Compete Agreements are becoming increasingly difficult to enforce if not drafted properly.

By way of background, Non-Compete Agreements are called restrictive covenants. Restrictive covenants are enforceable in Massachusetts when it: (1) protects an employer’s legitimate business interest; (2) is supported by consideration; (3) is reasonable in time and space; and (4) is consonant with the public interest.

The three most recent cases reinforce and clarify that a Non-Compete Agreement is only enforceable and binding upon an employee if there is true and actual consideration to enter into the agreement. Then, only if it is reasonable in its restrictions.

The element most employers and employees fail to recognize is the need for consideration. Consideration is what is offered to the employee in exchange for the employee agreeing to be limited in his or her choice of future employment. This is especially true when the employee has a change in position, title or compensation during the course of employment. Thus, a Non-Compete Agreement must change as the relationship between the employer and employee changes.

An employee, on the other hand, must decide whether the benefit he or she derives from entering into the Non-Compete Agreement is worth the geographical and time limitation he or she is agreeing to. Specifically, the employee needs to seriously analyze the hardships he or she may encounter, as a result of the Non-Compete Agreement, in his or her search for new employment. A Non-Compete Agreement should not be entered into lightly.

A Non-Compete Agreement is not necessarily enforceable simply because an employee signs one upon being hired. Thus, it may not be enforceable by an employer if there is not proper consideration. This is especially true over time as the relationship between the parties change. Therefore, an employer and employee should seek specific legal advice in preparing a Non-Compete or before accepting a Non-Compete Agreement.

1Interpros, Inc v. Athy, 2013 Mass.Super. LEXIS 48; 31 Mass.L.Rep. 144; 2013 WL 2181650 (Mass.Super. May 5, 2013); Rent-A-PC, Inc. v. March, 2013 U.S. Dist. LEXIS 74535 (May 28, 2013); and Advanced Micro Devices, Inc. v. Robert Feldstein, Civil Action No.: 13-40007-TSH (May 15, 2013).

This Article is intended to provide generally helpful information. It is not intended to provide legal advice or specific information for any or all circumstances. For more information regarding Non-Compete Agreements or assistance with enforcing, refuting, reviewing or drafting a Non-Compete Agreement please contact the law office of Ann E. Cascanett, LLC.

This article may be considered advertising under the rules of the Supreme Judicial Court of Massachusetts. This article is not to be considered a legal opinion or advice and it does not create an attorney-client relationship.

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