Employment Law

Employment at will is an employment relationship for an indefinite duration, without a contract, that either the employer or employee can terminate at any time. Therefore, an employee at will can generally be fired for any or no reason at all. The exceptions to this rule are that an employer cannot terminate an employee for discriminatory reasons or for reasons that are against public policy. The vast majority of private-sector employees are employees at will.

Yes.  The only statutory limitation on an employer’s obligation to provide a reasonable accommodation is that no such change or modification is required if it would cause undue hardship to the employer.

Undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

Employment discrimination is any adverse action that is taken against an employee because of the employee’s race, color, national origin, ancestry age, gender, disability, sexual orientation, or religious creed.  Employment discrimination can also be the failure of an employer to provide a reasonable accommodation to a disabled person.

A modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

A modification or adjustment to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

A modification or adjustment that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

Yes.  M.G.L. c. 149, § 52C, states that an employee shall be given a copy of his or her personnel records within five business days of submission of a written request for such copy to their employer.

A personnel record is defined to include the following written information or documents: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee.

The workweek includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace,” and the time spent in these activities must be paid. A frequent wage-related claim involves allegations of work performed but not reported as or considered compensable working time (i.e., “off-the-clock” work). The time spent doing the things employees must do each day to get ready to work and get ready to leave, such as set up time, time putting on and removing safety equipment and the like, must be paid. Whenever the employer knows or has reason to believe that an employee is performing work, the employer must compensate the employee for that work. In addition, if an employer provides nonexempt employees breaks of less than thirty minutes, the employees generally must be paid for that time, and if an employer provides a meal break of thirty minutes or more, that time may be unpaid provided the employee is “completely relieved from duty.”

The Massachusetts wage statute does not define the term “earned.” Generally, courts have determined that the word “earned” reflects that the work has been actually performed. With respect to commissions, they are earned when they are “definitely determined” and “due and payable.” Commissions meet these criteria if all contingencies that must occur for the employee to receive the commissions have occurred and the amount due can be precisely ascertained.

Generally, Massachusetts employers must pay hourly employees on a weekly or biweekly basis.

Employers are prohibited from working any nonexempt employee more than 40 hours in a workweek without paying the employee extra compensation for the overtime hours worked. The required overtime premium rate is one-and-one-half times the employee’s “regular rate” of compensation. There is no absolute limitation on the number of hours an employee may work in a workweek (with the exception of child laborers).

Certain employees are deemed “exempt” from the overtime and minimum wage provisions of state and federal wage laws. In addition to specific occupations and industries that fall within the exemptions, there are general exclusions for bona fide “executive,” “administrative,” or “professional” employees and for persons employed in the capacity of “outside salesman.”
 

The question of whether a person is an “employee” is determined on a case-by-case basis. The key issue is the employer’s right to direct and control the individual’s work. Employers cannot avoid wage and hour laws simply by classifying employees as independent contractors.

When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.

Yes.

An employer may require service employees, wait staff, and service bartenders to pool their tips, provided that the funds are distributed only to other service employees, wait staff, or service bartenders. Total proceeds of a tip or service charge imposed by an employer must be remitted only to service employees, wait staff or service bartenders in proportion to the service provided by those employees. Under no circumstances may management employees or owners receive any portion of their employees’ tips.

The Massachusetts Wage Act governs the enforcement of employees’ right to receive any and all unpaid wages they have earned. It is a strict liability statute, and the law provides mandatory triple damages and attorneys’ fees.

Massachusetts employees (including part-time employees) who work for employers having 11 or more employees can earn and use up to 40 hours of paid sick time per calendar year. Employees (including part-time employees) who work for employers having 10 or fewer employees can earn and use up to 40 hours of unpaid sick time per calendar year. In determining the number of employees who are employed by an employer for compensation, all employees performing work for compensation on a full-time, part-time or temporary basis shall be counted.

An employee can use earned sick time if required to miss work in order to: (1) care for the employee’s child, spouse, parent or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or (2) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or (3) attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of a spouse; or (4) address the psychological, physical or legal effects of domestic violence.

Employers can require certification of the need for sick time if an employee used sick time for more than 24 consecutively scheduled work hours. Employers cannot delay the taking of or payment for earned sick time because they have not received the certification. Employees have to make a good faith effort to notify the employer in advance if the need for earned sick time is foreseeable.

Employees can carry over up to 40 hours of unused sick time to the next calendar year but cannot use more than 40 hours in a calendar year.

Employers are not be required to pay out unused earned sick time upon the separation of the employee from the employer.

Yes, it is unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided, including, but not limited to, by using the taking of earned sick time as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for the use of earned sick time. It is also unlawful for any employer to take any adverse action against an employee because the employee opposes practices that the employee believes to be in violation of the law or because the employee supports the exercise of rights of another employee under the law.

A domestic worker is any individual, whether an independent contractor or an employee, who provides any service of a domestic nature within a household, including housekeeping, cleaning, childcare, cooking, home management, or caring for the elderly or ill.

The law does not apply to casual babysitters, those who work, on average, less than 16 hours per week, or personal care attendants.

The employer must provide you with a notice of all applicable state and federal laws that apply to the employment of domestic workers.

If a domestic worker works for an employer for 16 hours or more a week, the employer must also provide the following information (and keep a record for three years):

• The rate of pay, including overtime and additional compensation for added duties or multilingual skills
• Working hours, including meal breaks and other time off
• Any applicable provisions for days of rest, sick days, vacation days, personal days, holidays, transportation, health insurance, severance, yearly raises. This information must include whether or not vacation days, personal days, holidays, severance, transportation costs and health insurance costs are paid or reimbursed.
• Any fees or other costs, including costs for meals and lodging
• The responsibilities, including regularity associated with the job
• The process for raising and addressing grievances and additional compensation if new duties are added
• The possibility of eligibility to collect workers’ compensation if injured on the job
• If applicable, the circumstances under which your employer will enter your designated living space on the employer’s premises
• What the employer deems as cause for termination
• The requirement to provide you with notice of employment termination
• Any other benefits the employer provides