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.
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.
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.
Can an employee demand reasonable accomodation for his Rastafarian hair and beard in the face of his employer’s personal grooming policy which bans facial hair and long locks? The answer, of course, is it depends. But in the recent case of Brown v. F.L. Roberts & Co., Inc., the Massachusetts Supreme Judicial Court held that the employer failed to demonstrate that any exception to its grooming policy would present an undue business hardship to justify its failure to make a reasonable accomodation to its employee’s religion.
The employee also failed to sustain his burden to demonstrate that his assignment by the employer to the lower bay of its Jiffy Lube oil-changing franchise was not a reasonable accomodation as a matter of law.
The case is an excellent overview of the Massachusetts religious discimination law, G.L. c. 151B, § 4(1A). That statute provides, in part, “It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate or [forgo] the practice of, his creed or religion as required by that creed or religion . . . and the employer shall make reasonable accommodation to the religious need of such individual. . . . ‘Reasonable Accommodation’, as used in this subsection shall mean such accommodation . . . as shall not cause undue hardship in the conduct of the employer’s business.”
The purpose of the statute is to prohibit discrimination against individuals for sincerely held religious beliefs. But the statute also balances the needs of employers by providing hardship provisions. The religious beliefs of an individual, even when most sincerely held, cannot excessively interfere with the employer’s business affairs.
In the case at hand, Jiffy Lube hired a consultant to advise on ways to improve business. One recommendation was to implement a personal grooming policy that required employees to be cleanly shaven and to have neatly trimmed hair. The plaintiff, however, had adhered to his Rastafarian beliefs for over a decade, and those beliefs included a prohibition against shaving or cutting of hair. The employee requested an exception for his religious beliefs. The employer apparently responded that he did not have the time to consider religious beliefs.
The plaintiff, who previously had responsibility for customer contact, was assigned to the lower bay (read “grease pit”) of the oil change facility, where he had no customer contact. The lower bay was also colder, and the plaintiff was always the last to get to breaks and lunch.
Importantly, the court held that the Massachusetts statutory scheme under G.L. c. 151B afforded more protections to employees than the Federal provisions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The court distinguished the case from Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 138 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005), which upheld the employer’s ban on facial piercings despite the employee’s claim of religious discrimination.
The defendant could not make a blanket assertion that an exception to the hair ban would create an undue hardship on the business. The court clearly state, “an exemption from a grooming policy cannot constitute an undue hardship as a matter of law.” At a minimum, the employer was required to engage in a discussion with the employee regarding a reasonable accomodation, and to provide a reasonable accomodation unless it could demonstrate an undue hardship. On the record, the employer’s claim of undue hardship failed.
The plaintiff was unable to convince the court that his assignment to the lower bay could not be considered a reasonable accomodation. The question, the court concluded, was a factual one reserved for the jury to consider when the case was sent back to the Superior Court.
What Should An Employer Do? The Brown case demonstrates once again that Massachusetts anti-discrimination laws will be given broader reading than their Federal counterparts. Claims of discrimination can be best avoided by appropriate proactive measures when the risk arises. Claims by employees about religious beliefs or concerns about discrimination for gender, race, ethnicity, age, sexual orientation, pregnancy, marital status and veterans status must be taken extremely seriously. If you do not have strong anti-discrimination policies in place, you should consult your attorney promptly to implement them. The law requires employers to have strong written anti-discrimination policies in place. Consultation with an attorney when questions of discrimination claims arise may help prevent them from developing into expensive claims for damages.
In an important case decided today, the Massachusetts Supreme Court has announced that the Massachusetts Equal Rights Act does allow a plaintiff who works for an employer with fewer than six employees to sue for pregnancy discrimination. The case clearly opens the door for additional pregnancy discrimination claims against Massachusetts employers.
However, preganancy discrimination claims against smaller employers still cannot be brought in the Massachusetts Commission Against Discrimination, which has jurisdiction only over employers with six or more employees. Claims against smaller employers will proceed directly to court.
Prior to this ruling, it was unclear under Massachusetts law whether employers who did not fall within the jurisdictional limitations of the Massachusetts General Laws chapter 151B (requiring 6 or more employees) could be sued for pregnancy discrimination. The SJC made it clear that these employers are not exempt from pregnancy discrimination claims.
Small employers will benefit from the fact that defending the claim will at least be less expensive than the two step process under G.L. c. 151B.
Larger employers are still required to defend pregnancy discrimination claims at the MCAD, where the claimant has the option of maintaining the claim for part of its handling, or all of its determination, as well as the option of removing the case to court. The employer does not have the option of removal.
The MCAD process is very expensive (and distracting) for any employer and the financial and business burden would have greatly impacted employers with fewer than 6 employees. From an economical and business perspective, MERA provides these employers with the right to defend claims just once, rather than duplicating their costs through the MCAD investigation process and then, if removed by the plaintiff, incur those costs and distractions once again in court.
For these smaller employers, one forum is more than enough for them to bear.
The case is THURDIN vs. SEI BOSTON, LLC.
If you would like to discuss the impact of this case on your business, please call me.
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.
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
