Massachusetts Enacts New Anti-Abuse and Anti-Harassment Laws; Massachusetts Workplaces will be Affected

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 dmurphy@rubinrudman.com or at (617) 330-7123.

Massachusetts Increases Fines for Wage and Hour Violations

An amendment to the Massachusetts Wage Act has businesses–and their lawyers–calling the changes unfair and punitive. What’s the change? Under the amendment passed in April 2008 by the legislature, which went to effect on July 13, 2008, the civil punishment for wage and hour violations is now treble damages, regardless of whether the violation was intentional or not.

Of course every business needs to pay their workers in accordance with the law, which means, among other things, overtime for weeks of over forty hours, with mandatory overtime on Sundays and certain holidays in retail establishments, and vacation and commissions policies that conform with the law. The law already provided for strict damages, including back wages, attorneys’ fees, and sometimes multiple damages for intentional violations. Egregious violations of the law may also lead to criminal penalties.

But multiple damage awards used to vary depending on the culpability of the business. Some violations might result from errors at a payroll processing company or misunderstandings of the law, and a company had the right to plead a good faith defense to charges of violations. The state and federal departments of labor were usually forgiving in such circumstances, giving employers a second chance to mend their ways.

Unfortunately, the law of the land means that every violation will now be treated as a triple damages case.

The lesson for businesses: Time to take a close look at your employment practices. Double check your controls to make sure the wage and hour laws are being followed to the letter! This means double check with payroll companies too.

Contact me if you need to review your compliance with the wage and hour laws.  This is a very important area for all employers, and it is wise to invest in prevention to avoid potentially serious fines down the road.