Welcome to the Blog of Denise Murphy, Massachusetts Lawyer for Employment Defense
Terminating employment presents significant risks for employers, both legally and practically. Unlike other business decisions which may give rise to litigation, terminating employment affects individuals on a very personal level. It is impossible to ascertain just how an individual will react. How employers manage termination, therefore, is a consideration which requires planning, patience, and professionalism.
As a primary rule, employers should adhere to the basic principles of employment law defense. Document! Document! Document! In the event of litigation, it is an immeasurable benefit to have contemporaneous documentation about the reasons why the decision was made to terminate the individual. Of course, in the real world, many employers don’t have the time or the resources to undertake the effort to document infractions. They should, nevertheless, attempt to provide sufficient documentation to establish the basis for the decision.
When terminating an employee, treat the employee with respect. Conduct the termination in a private setting and remain professional at all times. Be truthful and firmly compassionate.
And, as in all employee interactions, conduct the discussion in the presence of a witness. In the event that the employee becomes angry or violent, immediately leave the area and, if necessary, contact the police.
For a more detailed discussion of the practical guide to terminating employees, read the article “When firing a staffer, the big concern is safety–both physical and legal,” published in the February issue of Law Firm administrator. The article begins on page four of the .pdf file.
If you need assistance with proper employee termination procedures, or with other employment matters on behalf of your company, please do not hesitate to contact me.
As a result of legislation signed into law by Governor Deval Patrick on August 6, 2010, the Commonwealth’s Criminal Offender Record Information (“CORI”) system has undergone sweeping changes which dramatically impact employers doing business in the Commonwealth of Massachusetts. Effective November 4, 2010, the ability of most employers to inquiry about a candidate’s criminal background on an employment application will be limited.
The prohibition against inquiries on initial applications exempts from compliance certain employers, i.e., school systems and financial services companies, who are prohibited by state or federal law from hiring individuals convicted of certain types of crimes. Notably, this restriction does not prohibit criminal history inquiries points beyond the initial application process, such as during an actual interview. For example, employers could seek this information during subsequent interviews.
Effective in February of 2012, there will be further changes to an employer’s ability to inquire into a candidate’s criminal background which will ease an employer’s ability to make appropriate background inquiries. The Commonwealth will establish a new CORI database which employers can, for a fee, access to obtain information regarding an applicant’s convictions and pending charges. However, before an employer can use this information to either eliminate the candidate or question the candidate about this information, the employer will be required to provide the applicant with a copy of that CORI information. If the employer uses the information provided by the CORI database to make a hiring decision within ninety (90) days of receipt of the information, that employer will receive an additional benefit. The employer will be protected from liability from certain types of adverse claims, such as negligent hiring or failure to hire claims.
There are also new limitations on the information which employers may access from the CORI database. Records for most felony convictions will not be available from the database after ten (10) years and misdemeanor information will be restricted after five (5) years. Certain sex crimes, murder convictions, and various other crimes will remain available from the CORI database.
Any employer which conducts five or more criminal background checks per year must establish a written CORI policy which:
- Notifies the candidate of a potential adverse employment decision based upon the CORI information;
- Provides the candidate with a copy of the CORI information in the employer’s possession, together with a copy of the employer’s written CORI policy; and
- Provides the candidate with information regarding the process to correct criminal information.
The employer must retain the criminal record information for seven (7) years after the adverse decision or termination of employment, after which it is required to discard that information.
The practical implication of these changes to the CORI system is that employers must undertake immediate action to conform their employment applications to eliminate any initial inquiry into criminal background. And, in addition, employers who conduct five (5) or more criminal background checks on employees much establish a written CORI policy which complies with the law’s requirements.
Please contact me directly at (617) 330-7123, or at firstname.lastname@example.org, if you have any questions or need assistance with compliance.
Imbedded among the provisions of what the Legislature declared an “emergency law” entitled “An Act Relative To Economic Development Reorganization” are major changes to the requirements of the Massachusetts Personnel Records Act, Mass. Gen. L. Ch 149, Sec 148, subsection 52C.
Under this new law, which became effective August 5, 2010, an employer must now:
1) Notify an employee within 10 days, if the employer places any information in the employee’s personnel file which either has been or will be used to negatively impact the employee’s employment with that employer. Specifically, if any of this information could be used to evaluate an employee’s performance and subject that employee to disciplinary action, adversely impact that employee’s opportunity for promotion, transfer, or additional compensation, the employer must now comply with this new law and give notice of the filing of this information into the employee’s personnel file.
2) If an employee requests, in writing, the opportunity to review his or her personnel record, the employer must provide that employee with an opportunity to review that record within 5 days of receipt of the written request. NOTE: The new law also provides that the review of the record shall take place at the employer’s place of business, during normal business hours.
3) If an employee provides a written request for a copy of his or her file, that request, as well, must be honored within 5 days of the written request for a copy of that record.
An employee may only request a review of his or her personnel file on 2 occasions within a calendar year, unless that employee has received a notification of the placement of negative information in that employee’s personnel file. This notice and the opportunity to review the file are not considered part of the 2 maximum reviews per calendar year.
These changes are significant and will tremendously impact the work of human resources professionals and management, and how they approach employee relations and personnel records.
If you have any questions about this new law, please contact me directly at email@example.com or (617) 330-7123.
The recent shooting with multiple fatalities at a beer distributorship in Connecticut serves as a grim reminder to employers and human resource professionals everywhere that one should always be aware of the potential of danger when administering disciplinary measures to employees. There are very simple and practical rules for employers and human resources professionals to undertake when imposing disciplinary actions which should increase safety and minimize risk.
1) Never meet alone with an employee. Always have a witness.
2) Position the meeting so that the employee is farthest away from an exit and you and your witness are closest to that exit. That way, if the employee becomes violent or threatens violence, you have a moment or two to make your escape.
3) Carry your cell phone with you and be prepared to contact the police if you are threatened or if violence erupts.
4) Treat the employee with dignity and respect. Do not belittle or demean the employee, regardless of the reason for the disciplinary measure. Be firm, but respectful. In most instances, employees will not agree with you about the reason for the discipline. That’s ok. You can explain that that they have the right to disagree with you, but that the decision is final.
5) In the event that you are terminating the employee, if practical, do so in a private setting to allow the employee some privacy (but see Rule 1). Terminations are always emotional and difficult for everyone involved. It’s understandable that the employee may get upset and emotional. A private setting will afford them an opportunity to deal with their emotions without the prospect of public humiliation. Of course, if the employee become angry or threatening, end the discussion and leave.
6) Inform the employee that he or she may not return to the premises for any reason without your express permission and notify receptionists and other personnel that the employee is no longer with the company. If, after that notice is provided to both the departing employee and to necessary personnel, the employee does return to the premises, do not hesitate to call 911 and report that an unauthorized ex-employee has returned to the workplace. It is better to be cautious than injured.
These guidelines provide no guarantee of safety of course. No one can predict human behavior. However, they do provide a reminder that one has to be practical and consider the safety of everyone when disciplining employees.
For further information regarding methods of handling workplace discipline, please contact me directly at firstname.lastname@example.org or at (617) 330-7123
Massachusetts has enacted new anti-harassment and anti-abuse laws which will affect on the workplace. The law, which becomes effective on May 10, 2010, creates a procedure for anyone to obtain a protective order for harassment if they are the victims of three acts of intimidation, abuse, or property damage, or are they are the victims of a forceful or threatening act which causes another to involuntarily engage in sexual relations or other related crimes. The law uses definitions of “abuse” and “harassment” which are so broad that there will be significant workplace implications.
These procedures allow courts to issue Harassment Prevention Orders (“HPO’s”) against anyone who engages in these types of behaviors. Unlike the more restrictive state and federal anti-harassment laws which prohibit harassment based upon protected class status, HPO’s are not subject to administrative filing prerequisites, nor are they limited to claims based upon protected class status. HPO’s can be filed in superior court, the Boston Municipal court, or the respective divisions of any juvenile or district court in which the plaintiff resides. And, they may be filed on an emergency basis without any notice to the defendant (ex parte).
The statute defines “abuse” as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” Under the HPO, if a person engages in “3 or more acts of willful and malicious conduct with the intent to cause fear, intimidation, abuse or property damage toward a specific person, and does, in fact, cause fear, intimidation, abuse or property damage to that person, the victim may obtain injunctive relief from the court, prohibiting the harasser from any contact with the victim. As a practical matter, this means that an employee who engages in this type of behavior at work can be prevented from returning to work until and unless the issue is resolved to a court’s satisfaction.
We are all aware of workplace situations in which co-workers, bosses, and even clients and customers, engage in inappropriate and unprofessional conduct at work. They yell, they scream, and they throw things around when things don’t go their way. So called “workplace bullies” are not the norm, but they do exist and create significant morale and productivity issues at work. Now, with the implementation of this new law, the possibility exists that these unrestrained individuals face far more significant consequences than disciplinary actions from their employer. While HPO’s are civil in nature, they are enforced criminally if violated.
What Should a Massachusetts Employer Do?
As a result of the new Massachusetts law, employers should undertake measures to reduce the likelihood of abuse or harassment within the workplace. Prevention of abusive behaviors and harassment should be the first goal. If reported, an immediate and appropriate response is critical. I suggest that every employer provide training, guidelines, and effective reporting procedures.
For further information regarding the implications of this new law in the workplace, please contact me directly at email@example.com or at (617) 330-7123.
Massachusetts employment defense lawyer Denise Murphy was recently a guest on Money Matters Radio for the Scottie McCall show. The station is WBNW, 1120 AM, and the appearance was on April 23, 2010.
Denise talked about recent changes to Massachusetts data privacy laws, things every employer should know about discrimination and harassment, and other topics of current interest to Massachusetts employers.
Click on the link below to hear the show! (It begins after a few moments of commercial messages.)
Denise on the Radio
Money Matters Radio is a lively talk station with three local transmitters. Tune in, or follow them from their website at www.moneymattersradio.net.
The Massachusetts Supreme Judicial Court has eliminated one of the few remaining defenses available to employers for violations of the Commonwealth’s strict liability law governing independent contractors. In Somers v. Converged Access, Inc., (August 21, 2009 SJC Docket-10347), the court found that the employer has misclassified the plaintiff as an independent contractor. The court rejected the employer’s defense that the plaintiff suffered no damages because the employer paid the plaintiff more as independent contractor than it would have paid him, had it hired him as an employee.
The plaintiff twice filed an application for employment with CAI, neither of which resulted in employment. CAI did, however, offer him a temporary position, testing CAI’s software products first for a sixty day period and then for a 90 day extension, as an independent contractor. As an independent contractor, Somers was not entitled to any benefits the company offered to its employees, including vacation pay, participation in insurance plans, or retirement benefits. When the company informed him that it would not renew his contract again and then did not consider his application for an open position, Somers filed suit, alleging, among other claims, misclassification as an independent contractor in violation of the Massachusetts wage and hour and independent contractor laws.
In its defense, the company argued, and the lower court agreed, that because the $65 per hour wage it paid Somers was substantially more than it would have paid him as an employee, he did not suffer any damages. The SJC, however, made it quite clear that this position offered no defense to Somers’ claims. In essence, the SJC reason that, because CAI misclassified him as an independent contractor, the money it paid to him for that period was his salary. It rejected CAI’s claims that it should be allowed an “offset” for the salary it would have paid had it hired him as an employee against the larger sum it paid him as an independent contractor. The court reasoned that there are no offset provisions in Mass Gen. L ch 149, section 148 (the Wage and Hour Act) of Mass. Gen. l Ch. 149, section 148B (the Independent Contractor Law).
Under Massachusetts’ Wage and Hours laws, a successful plaintiff may recover an award of treble damages, plus costs and reasonable attorney’s fees from the employer. The court remanded the case to the trial court for determination the extent of the damages due to the plaintiff.
This case serves as yet another reminder to employers of the facts that they must properly classify their employees and that an independent contractor is a rarity in Massachusetts employment relationships. Mistakes of this type are extremely costly to employers who do not follow the law.
Click here for the full opinon.
If you have any questions or concerns about this area of the law, please feel free to contact me.
In a recent 5-4 opinion, the United States Supreme Court made it more difficult for employees to prove age discrimination in employment cases. Prior to the ruling in Gross v. FBL Financial Services, Inc. (2009), many jurisdictions applied the two step analysis used in discrimination claims under Title VII (the federal anti-discrimination law which prohibits discrimination based on gender, race, ethnic origin, or religion,) to determine if age discrimination occurred. Under that approach, plaintiffs could prevail if they could demonstrate that age formed part of the employer’s motivation for the adverse employment action, the so called (mixed motive cases), despite evidence of a legitimate, non-discriminatory motive
In 1991, Congress amended Title VII to allow recovery for cases where discriminatory animus formed part of the employment decision in race, religion, ethnic origin, and gender cases. If a plaintiff could demonstrate that the employer, with a legitimate, non-discriminatory reason for the action, also had some type of discriminatory animus, that plaintiff could recover under the “mixed motive” theory. Since that time, federal courts grappled with the issue of whether the mixed motive approach could also be applied to age discrimination cases because Congress, at the time it amended Title VII, did not specifically include age in the group of protected classes under which the mixed motive approach could be utilized
The Gross court resolved the issue and said that the two step, mixed motive analysis does not apply to age discrimination cases. Plaintiff’s must now demonstrate that age was the sole motivating factor in employment discrimination cases. As a result, it will much more difficult for plaintiff’s to prevail in a age discrimination case.
The practical result of this ruling is that many plaintiffs’ attorneys will most likely bring age discrimination suits in state courts, rather than federal courts, where possible. That will be especially true in states which have liberal state anti-discrimination laws.
Now is the Time to Act as the April 1st Filing Date is Rapidly Approaching
Despite the economic downturn, companies are still in need of specialized talent. We are aware that employers will continue to require the services of highly skilled foreign nationals to accomplish their business goals and objectives. The timing is dictated largely by the academic calendar, but also by the realities of the H-1B visa. The H-1B visa is the most desired visa for professionals as well as the most common method for many companies to hire foreign nationals.
Therefore, our law office is accepting H1B cap-subject cases for Fiscal Year 2010. Many foreign nationals and their employers have asked when they should start working on H1B cap cases. The sooner the better as the cap filings must be filed as early as April 1, 2009 for an October 1, 2009 start date. It is vital to file on the first day of visa availability. For the past two years, the filings have outweighed the available H1B cap numbers, and a random lottery determined which cases would be eligible. The same pattern is likely to continue.
In order to have a case filed with U.S. Citizenship and Immigration Services (USCIS) on April 1st, please act now. We will make every effort to accommodate any last minute hiring decisions; we encourage your company to examine such hiring decisions as soon as possible as this April 1 deadline is fast approaching.
Those who are ready to start H1B cases, or who may want to have a consultation about the process and H1B issues, please contact me at the above.
For help with your immigration and employment matters, please call our office today. My partner, Michele Vakili, can be reached directly at (617) 330-7119. And for other employment issues, please feel to contact me directly at 617-330-7123.
The Massachusetts Appeals Court has affirmed the principle of absolute privilege in connection with complaints of discrimination claims made to the human resources department and to the administrative agencies. Accordingly, the manager against whom the complaints were made could not countersue for libel, slander, malicious interference with advantagous business relations, or wrongful procurement of breach of employment agreement.
The underlying case was brought by a bartender, who had worked in a Marriott hotel in Cambridge, Massachusetts. After several months of working under a particular supervisor, she resigned. At the urging of a new manager at the hotel, she reapplied for the position. At her second interview for the position, she was interviewed only by her earlier supervisor, not, as she expected, by the supervisor and the manager. After the interview, she withdrew her application, and immediately complained that she had been harassed by the supervisor, and that he had behaved inappropriately.
The bartender followed up the verbal complaint with a written complaint to the general manager, to human resources, and to the legal department. She detailed her complaints against the supervisor for his harassment, and other complaints, and stated she would bring claims at the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination if her harassment claims were not promptly settled.
No settlement offer was forthcoming, so the bartender filed with the EEOC. The case was promptly settled with Marriott.
Almost a year later, the supervisor brought suit against the bartender and Marriott, claiming wrongful termination against Marriott as well as the defamation and tort claims against the bartender. The bartender’s summary judgment motion was denied, and the supervisor’s was allowed. The bartender appealed and the trial court was reversed.
The Massachusetts Appeals Court held that the letter to Marriott, in which the bartender threatened suit but offered settlement, was absolutely privileged since they related to the institution of a good faith judicial proceeding. The letter was, in fact, followed by the claim at the EEOC, based upon the same allegations. The court wrote, “Because her statements were made entirely in the confines of a protected forum, she is entitled to the defense of absolute privilege on [the defamation claims].” The exact same analysis applied to the claims of interference with employment relations.
The Lessons of This Case
Employers must understand that workers have the right to make good faith complaints. The duty on the employer is to undertake appropriate investigation and, where appropriate, corrective action.
The case is Visnick v. Caulfield, 73 Mass. App. Ct. 809 (2009)