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.
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 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.
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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
