Hiring

5 Steps for Employer Use of Criminal Records: Part 1

Massachusetts enacted broad reforms to its Criminal Offender Record Information (“CORI”) laws in August 2010.  These reforms emphasize existing non-discrimination requirements and provide new requirements for accessing records through the on-line system (“iCORI”), as well as using and maintaining criminal records. 

The first part of the CORI reform laws became effective in November 2010, requiring employers to refrain from asking employees and job applicants to provide their criminal record history.  The second part became effective May 4, 2012, requiring employers to follow certain procedures for obtaining and handling criminal records information when screening existing employees and applicants, and providing employees/applicants with certain due process rights before an employer can make an adverse employment decision based on such records. 

The CORI system is complicated, and employers can easily and unknowingly run afoul of its mandates and prohibitions.  To help you avoid exposure to these risks, I have broken down the CORI process into five steps.  The first two steps are detailed in this post and the remaining steps will be explored in separate posts in the coming weeks.

Step 1: Registering and Preparing for CORI Access

Employers must register with the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) to … Keep reading

As summer internship season approaches, employers should carefully institute internship programs which comply with the requirements of the Fair Labor Standards Act (FLSA)

The Test.

In the case of “for-profit” companies, unpaid internships must meet the strict criteria of the FLSA.  Specifically, as stated in U.S. Department of Labor’s (DOL) FLSA Fact Sheet #71 unpaid interns must:

  1. Receive training similar to that provided in an educational environment
  2. Be for the benefit of the intern, and not the employer
  3. Not displace regular paid employees
  4. Be closely supervised by existing staff
  5. Not be used for the immediate advantage of the employer (and in some cases, may impede the employer’s operations)
  6. Not necessarily be entitled to a job after the end of the internship
  7. Understand that the intern is not entitled to wages for time spent in the internship

Keep reading

With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation.   What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law. 

The Massachusetts transgender rights law defines “gender identity” as:

[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

This law allows employees to establish a workplace gender identity by providing their employer with evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or “any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity.”

Notwithstanding this new law, the Massachusetts Commission Against Discrimination has already found that transgender employees are protected under the Commonwealth’s existing sex and disability discrimination laws.  Thus, we have long counseled Massachusetts employers to treat transgendered employees as a protected class, and we do not anticipate that this legislation will change that fundamental advice. … Keep reading

Most employment claims can be avoided by simply being aware of what the law requires.  Here are three recurring issues which plaintiffs’ class action attorneys and government agencies are targeting across the country and which can be easily avoided by taking action now.

1.  Misclassification of Workers as Independent Contractors

The Internal Revenue Service (IRS) and US Department of Labor (US DOL) have been increasingly cracking down on independent contractor misclassification.  Last year, Massachusetts, along with several other states, signed a Memorandum of Understanding (MOU) with the IRS and  DOL, formally agreeing to cooperate in investigating independent contractor misclassifications.  If a violation occurs, the government agency investigating the matter is obligated to report it to the other state and federal agencies which may be affected by the misclassification, potentially opening up the company to an audit by the IRS or the US DOL.

Massachusetts has one of the toughest tests to be met in order to classify someone as an independent contractor, and the penalties for misclassifying vary with the legal requirement which was not met as a result of the misclassification.  For example, if a worker was not paid accrued wages or vacation time upon termination, the … Keep reading