Miscellaneous Employment

While employee reviews have obvious benefits from a Human Resources standpoint, implementing a policy that ensures employee reviews are well-crafted and accurate today, can go a long way toward insulating the company from potential liability tomorrow. Courts have consistently held that discharged or transferred employees can use performance reviews to show that they were treated differently based upon their membership in a protected class. In such “disparate treatment” cases, a performance review may establish or contradict that: 1) the employee was qualified for a position; and 2) someone outside of the protected class with similar qualifications was treated more favorably.

When deciding whether an employee was “similarly situated” to someone who may have been treated more favorably, a court will consider “whether a prudent person, looking objectively at the plaintiff and her comparator would think them roughly equivalent, and similarly qualified for the position.”

Employee reviews may be used as a tool to create evidence of work experience, or lack thereof. For example, if Employee A completed six significant projects in 2018, but Protected Employee B, who held a similar position, only completed three significant projects, employee reviews documenting the work experience of Employees A and B may be … Keep reading

The Act to Establish Pay Equity, amending G.L. c.149, §105A (MA Pay Equity Law), goes into effect July 1, 2018. All employers, regardless of number of employees, whose employees perform all or the greater part of their work in Massachusetts, are required to comply with the MA Pay Equity Law.

One of the law’s notable aspects is that a potential employer cannot ask a job candidate what his/her prior salary history is. Many employers regularly ask job candidates what they make as a way of gauging whether they can meet the compensation expectations of a job candidate or, in some cases, trying to determine the least amount of pay to offer. In this day of networking, management-level employees may also receive job inquiries from potential candidates, and it is not uncommon for managers to ask, “How much are you making now?” as a threshold question, to determine whether the inquiry is worth passing on. Unfortunately, if such benign questions are asked, the candidate may bring a legal claim for violating the MA Pay Equity Law.

With such a low threshold to assert a legal claim, what should you do? First, make sure all employees know that, under no … Keep reading

Effective April 1, 2018, for employers with six or more employees, Massachusetts’ prohibitions on discrimination in the workplace have been expanded to prohibit discrimination on the basis of pregnancy and pregnancy-related conditions. The Pregnant Workers’ Fairness Act specifically makes it unlawful to discriminate against an employee based on lactation or the need to express breast milk for a nursing child. Further, if an employee requests an accommodation for pregnancy or a pregnancy-related condition, an employer will be required to engage in a timely, good faith, “interactive process” to determine an effective, reasonable accommodation that enables the employee to be able to perform the essential functions of her position, just as an employer is required to do for an employee with a disability.

Reasonable accommodations under the new law include:

  • more frequent or longer paid or unpaid breaks;
  • time off to attend to a pregnancy complication or recover from childbirth;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; and
  • a modified work schedule.

Although employers are allowed to seek medical verification for certain types of accommodations, medical Keep reading

As I have written before, the Massachusetts Weekly Payment of Wages Act obligates employers to pay all earned wages to employees in a timely fashion. The Wage Act also specifies that the “president and treasurer of a corporation and any officers or agents having the management of such corporation” are personally liable for violations. In Segal v. Genitrix, LLC, et al., the Massachusetts Supreme Judicial Court, interpreting the phrase “agent having the management of the corporation” for the first time since it was added to the Wage Act in 1935, ruled that, as long as board members and investors acted in their ordinary capacities, they were not such agents and could not personally be liable for violations.

In Segal, the former president and chief executive officer of Genitrix, asserted that two former board members of the company, H. Fisk Johnson III and Stephen Rose, should be individually liable for wages that Segal claimed he was owed for services he performed for the company. Neither Johnson nor Rose was the president, treasurer, or any other officer of Genitrix. The Appeals Court, relying on Cook v. Patient Edu, ruled that Segal might have viable claims against Johnson and … Keep reading

In a recent decision, the Massachusetts Supreme Judicial Court has made it clear that employers cannot take action against employees who lawfully use medical marijuana, as doing so is tantamount to denying a request for a reasonable accommodation under the Commonwealth’s disability discrimination laws.

In Barbuto v. Advantage Sales and Marketing, LLC, the SJC reversed the dismissal of an employee’s handicap discrimination claim, alleging that her employer terminated her because of her lawful medical use of marijuana, and failed to engage in an interactive process to discuss a reasonable accommodation of her handicap. The employee had failed her employer’s drug test because of her use of marijuana, which was prescribed to treat her Crohn’s disease.

Interestingly, the SJC rejected the employer’s defense that the use of medical marijuana in the workplace is not a facially unreasonable accommodation simply because such use still is a crime under federal law. To the contrary, the SJC ruled that, under Massachusetts law, no person shall be denied “any right or privilege” on the basis of her medical marijuana use, even if such use may constitute a federal crime.

Thus, for an employee who has a qualified handicap under the disability discrimination laws, … Keep reading

Just a few weeks ago, the Massachusetts legislature enacted a statute to close a loophole in the law in order to make “upskirting” a crime. While the law appeared to have universal support, one man apparently does not think the law goes far enough.

Angus MacPhool of Leicester, Massachusetts works as a general laborer at a farm owned by Ewan MacDonald, Sr. One day while MacPhool was climbing a ladder to bale hay from a loft in the barn, 5 year-old Ewan MacDonald, Jr., who was playing in the barn with his father’s smartphone, apparently took a picture of MacPhool. MacDonald, Jr., who plainly is quite the child prodigy, then apparently uploaded the photo to the Internet and inserted the phrase “hee-hee” in various places. While this might not seem like a big deal, MacPhool wears a kilt and is a “True Scotsman.”

After MacPhool learned of the photo, he was able to trace the uplink back to the elder MacDonald’s smartphone and brought suit against MacDonald. In his complaint, MacPhool alleged:

12.   Defendant Ewan MacDonald, Sr. (“Old MacDonald”), had a farm, and on that farm he had a barn.
13.   Old MacDonald had a … Keep reading

Employees Misclassified as Independent Contractors Pose Significant Risks

Many are familiar with Juliet’s tribute to Romeo: “What’s in a name? that which we call a rose By any other name would smell as sweet.”  In the context of employees and independent contractors, however, Juliet is quite wrong.  As I discussed in a prior post, it can be perilous to misclassify workers as independent contractors, and, under the Massachusetts independent contractor law, workers are deemed employees unless all three of the following criteria, commonly known as the “ABC” Test, exist:

  1. the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
  2. the service is performed outside the usual course of the business of the employer; and
  3. the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Further, misclassifying an employee as an independent contractor could trigger violations of other laws, with the Massachusetts Weekly Payment of Wages Act (“Wage Act”) (and its mandatory treble damages and attorneys’ fees) being the most treacherous. 

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In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records.  Here in Part 3 and the last part of this series, I address the process of the handling of the documents.

 Step 5:  Handling Documents with CORI

Criminal records information obtained from any source is confidential, and employers must take precautions to insure that such information is protected from disclosure.  Because of the highly confidential nature of criminal records, the number of individuals who are authorized to request, access, receive and review such  information must be limited, and there are strict procedures for handling, storing and destroying criminal records information.  The new regulations provide for controls by:

  • Requiring the designation of a CORI Representative for an employer;
  • Requiring a Secondary Dissemination Log to track all distribution of CORI;
  • Limiting employer registration for CORI to one year increments; and
  • Limiting the validity of employee or applicant Acknowledgement Forms to 12 months from the execution date or the end of employment, whichever is sooner.
Keep reading

In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012.  This post addresses the next two steps in this process.

These blog posts also address when an employer conducts its own CORI checks.  However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks.  If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.

Step 3:  Notifying Employee/Applicant of CORI

Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.

If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:

  • notify the individual in writing of the potential adverse employment action;
  • provide a copy of the CORI, identifying
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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