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 dmurphy@rubinrudman.com, 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 dmurphy@rubinrudman.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 dmurphy@rubinrudman.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.
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.
-Denise Murphy
If you are like many employers in Massachusetts and around the country, you are facing pressures from administrative agencies, changing laws and regulations, and the constant threat of claims of discrimination, harassment, and mistreatment from employees.
You need help!
The best defense is not a good offense–it is a good defense! If you manage your employees correctly from the first step, you will prevent exposure to risks which can easily be avoided. And if claims arise, you will be prepared to fully defend yourself.
Contact me today. My direct line is 617-330-7123
