EMPLOYMENT LAW & CORPORATIONS

Representing clients in workplace discrimination and retaliation claims as well as assisting corporations form and succeed.

 

The United States Congress enacted the first federal employment law in 1888. Now, more than 180 federal laws mandate how employers may and may not treat their employees. In addition, every state in the union has its own employment laws that employers must comply with.
Federal employment laws cover every phase of the employee-employer relationship: applying, hiring, training, working, paying, promoting, disciplining, and terminating the employer-employee relationship. How do employers, especially small to medium-sized companies, keep up with the ever-changing landscape of employment law? How do employers ensure that their employment decisions will not get them into hot water with the federal or state government?
Any qualified employment attorney will tell you that preventative advice and counseling is the best way for employers to keep from accidentally violating federal or state employment laws. Our attorneys work closely with employers and human resource professionals to help them understand the basics of employment law and keep their businesses in compliance with both federal and state regulations.
Our law firm advises businesses of all types and sizes on the following matters:
• Employment agreements, including confidentiality agreements and non-compete clauses
• Employee handbooks to disseminate company rules, policies and regulations
• Employment discrimination, including disability discrimination
• Wage and hour laws
• Discrimination, Sexual harassment, and Retaliation Claims

Discrimination and Retaliation Claims 

Massachusetts Law outlaws treating people unfairly based on the persons membership in a “protected class,” such as your race, national origin, religion, disability, age, sexual orientation, or gender identity. The Massachusetts Commission Against Discrimination (MCAD) is the independent state agency that enforces the anti-discrimination laws of the Commonwealth of Massachusetts through training, mediation, investigation, prosecution and adjudication. Workers can file a Complaint if they believe they were treated differently or unfairly based on their identity as a member of a protected class. Complaints filed at the MCAD are investigated by an MCAD staff member to determine if there are sufficient facts to find that the treatment alleged constitutes unlawful discrimination. The MCAD conducts its investigation as a neutral entity. If it is more probable than not that there was an unlawful practice, the Complaint may move forward to prosecution and adjudication.
Massachusetts employment discrimination laws apply to employers with six or more employees, and any employer of a domestic worker regardless of the employer’s size. Employers are prohibited from discriminating against employees based on race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record (inquiries only), handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, active military personnel, and genetics. In addition, employers have an affirmative responsibility to provide parental leave to biological and adoptive parents.
The act of challenging conduct an employee views to be unlawful is known as “engaging in protected activity.” Importantly, the employee need not be right that the conduct challenged was actually unlawful in order to be entitled to anti-retaliation protection. For example, an employee who complains about sexual harassment and is subsequently fired, could ultimately succeed on a retaliation claim even if she fails on her sexual harassment claim.
Anti-retaliation provisions are not only triggered to retaliatory terminations or demotions. Instead, the Supreme Court of the United States and the Massachusetts Supreme Judicial Court have held that retaliatory actions include those that are “materially adverse to a reasonable employee or job applicant . . . to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.
Employees are still entitled to anti-retaliation protections even if they are wrong in thinking the challenged conduct is unlawful. In fact, they just have to raise their allegation in good faith. For example, an employee who complains about sexual harassment and is fired can win on a retaliation claim even if she was wrong about the conduct amounting to sexual harassment.
Timing is one of the key factors when determining if an action is retaliatory. In fact, numerous courts have held that temporal proximity between protected activity and an adverse employment action is sufficient to create an inference that unlawful retaliation has occurred.
There are numerous state and federal statutes that exist which make workplace retaliation unlawful.
Title VII and the Massachusetts Fair Employment Act/chapter 151B prohibit employers from retaliating against employees who challenge, oppose, or report conduct they believe amounts to unlawful workplace harassment or discrimination. This includes sexual harassment, as well as harassment or discrimination based upon someone’s gender, race, religion, sexual orientation, or national origin.
The Americans with Disabilities Act and the Massachusetts Fair Employment Act/chapter 151B prohibit employers from retaliating against employees who challenge, oppose, or report conduct they believe amounts to unlawful harassment or discrimination because of someone’s disability. Those same laws prohibit employers from retaliating against employees who request an accommodation related to their disability.
The Age Discrimination in Employment Act and the Massachusetts Fair Employment Act/ chapter 151b prohibit employers from retaliating against employees who challenge, oppose, or report conduct they believe amounts to unlawful age discrimination or harassment.
The Family Medical Leave Act prohibits employers from interfering with, restraining, or denying an employee’s right to take medical leave.
The Sarbanes-Oxley Act prohibits an employer from discharging, demoting, suspending, threatening, harassing, or in any manner discriminating against an employee who challenges conduct they believe violates any rule or regulation of the Securities and Exchange Commission or any other law relating to fraud against shareholders.
The False Claims Acts prohibits employers from retaliating against employees who disclose an employer’s false or fraudulent federal claims, also known as qui tam actions.
The Fair Labor Standards Act and the Massachusetts Wage Act prohibit employers from retaliating against employees who challenge or oppose practices they believe amount to unlawful wage practices, including employees who question the calculation of commissions, bonuses, tipped employees who question the distribution of tips, employees who claim they are wrongfully not being paid overtime, and employees who claim they are working without pay.
Massachusetts common law prohibits employers from retaliating against employees who perform an important public deed.
Employees who believe they have suffered unlawful retaliation are entitled to considerable remedies if they can successfully prove their claims. These remedies include compensation for emotional distress, punitive damages, compensation for lost wages, reinstatement, compensation for incurred attorneys’ fees, and reimbursement for certain incurred expenses.

Establishing Company Policies

There is no law that states that companies must have employee handbooks. However, employee handbooks are a good idea, once a company has more than one or two employees. Definitive and universal employment rules give employees guidance and assurance that all employees will be treated under the same set of policies. Employee handbooks also provide companies with important legal protection – if an employee challenges an employer’s actions in court, the company can point to its employee handbook as evidence of how the company operates with respect to its employees.
It is critically important to use caution when establishing company policies, whether they are formal written regulations or informal rules and common practices that are “just known” by employees. Companies should carefully review all employee handbooks to make sure policies and procedures comply with applicable employment laws and to avoid potential legal issues with personnel. Otherwise, the employee handbook could potentially serve as evidence against the company in a lawsuit filed by an employee claiming the company engaged in an illegal employment practice.
Topics to include in an employee handbook include:
• Introduction, with mission statement and business history
• Working hours and attendance, including hours for full-time and part-time employees and overtime policies and procedures
• Pay, clearly stating how wages and salaries are set and how raises and bonuses are determined
• Employee benefits
• Alcohol and drug abuse policies, including testing and help with substance abuse
• Illegal harassment, describing what behaviors are prohibited and what actions employees should take if they have evidence of illegal harassment
• Discipline and prohibited employee conduct, clearly describing conduct that may result in discipline or termination and stating that the company reserves the right to discipline or terminate for reasons not stated in the handbook
• Discipline policy, but the employee handbook should state that the company reserves the right to use a different type of discipline than the one described in the handbook, if the need arises
• Safety issues, stating safety rules and the procedure for reporting dangerous conditions and injuries
• Use of personal email, telephones, etc. on company time and the use of company email and phones for personal reasons
• How the company will handle any situations not covered by the employee handbook
• Description of at-will employment, clearly stating that the employee handbook is not a contract of employment or a guarantee of continued employment
Our law firm routinely works with employers before and after an employment handbook has been developed to ensure that all policies and procedures are in compliance with current federal and state regulations and to avoid expensive legal disputes with employees.

Sexual Harassment

All employees are entitled to a workplace that is free from sexual harassment and they are protected by federal, state and local laws. If you have been the victim of sexual harassment at work, our experienced employment law attorneys can help you obtain just compensation.
What is sexual harassment?
There are two types of sexual harassment. The first is referred to as “quid pro quo” or ” this for that” harassment. This form of sexual harassment occurs when an employer or a supervisor demands sexual favors in exchange for a job, raise, promotion, or other employment benefit. Quid pro quo harassment can also involve an employee being disciplined or fired for refusing sexual advances, or an employer giving a negative performance evaluation to an employee who rejects such an advance.
The second type of sexual harassment occurs when an employee is exposed to a hostile work environment. This involves a pattern of unwanted sexual behavior, comments or visual displays that creates an offensive or distressing atmosphere. In order for an employee to prove a hostile work environment, he or she must demonstrate that the harassing behavior was so severe or pervasive that it altered the terms or conditions of employment.
The employee must also show that he or she has complained about the behavior to his or her direct supervisor and that managers have failed to take action to stop the harassment from occurring. Because an employee’s record of complaint is key to proving a charge of hostile work environment harassment, it is important for employers to establish, publish, and distribute a clearly worded complaint procedure for employees to follow. It is similarly important for employers to keep records showing they take action in response to any complaints of sexual harassment.
Damages for Sexual Harassment
If you have been the victim of workplace harassment our experienced attorneys can help you recover damages such as lost wages, lost benefits, compensatory damages, and reinstatement. Depending on the circumstances of your case, you may also be entitled to compensation for emotional pain and suffering, punitive damages, attorney’s fee and costs. Call our firm today to discuss your matter in confidence.

The Family Medical Leave Act

The Family Medical Leave Act (FMLA) and its state-law counterparts require qualifying employers to provide qualified employees with up to 12 weeks of job-protected leave every year. The law also requires the company to maintain the employee’s group health benefits during such leave. The leave may be used for the employee’s own serious medical condition, to care for a family member with a serious medical condition, for maternity or paternity leave – or any combination of the above. The FMLA does not require companies to provide paid leave, but employees are usually allowed to apply any accrued paid time off toward their FMLA leave periods.
The FMLA applies to all public elementary and secondary schools, all public agencies and all companies with 50 or more employees in a 75-mile radius. Employees qualify for FMLA leave if they have worked for the company for at least 12 months or have worked at least 1,250 hours over the past 12 months.
In addition to providing job-protected leave, the FMLA also makes it illegal to discriminate or retaliate against an employee who has taken FMLA leave. The FMLA and its regulations are complex and at times confusing. Our firm can help your business stay in compliance and avoid costly penalties.

Wage and Hour Laws

The Fair Labor Standards Act (FLSA) sets basic minimum wage and overtime pay standards. Employers are required to pay overtime wages to certain employees after 40 hours of work in a week. In some states, overtime must be paid after 10 hours in a day, regardless of how many hours are worked during the week. Overtime rates must be at least one and a half times the regular rate of pay. The FLSA does not require companies to provide holiday pay, sick pay, paid or unpaid vacation time, or severance pay.
Generally, federal law does not require companies to provide meal or rest periods. However, if a company does provide a short break (usually 5 to 20 minutes), then the FLSA requires the company to count that time as compensable work hours. Under the FLSA, companies must treat any required “pre” and “post” work activities as compensable time. Examples include preparing tools or work surfaces, cleaning tools or work surfaces, and meeting at a central location for transportation to a job site.
Under the terminology used by the FLSA, “nonexempt” employees are entitled to overtime pay, whereas “exempt” employees are not. In 2016, however, the U.S. Department of Labor implemented sweeping changes to overtime rules regarding so called “white collar” exemptions under the FSLA for executive, administrative, professional and highly-compensated employees.
As of December 1, 2016, employees earning an annual salary less than $47, 476 ($913 a week) are entitled to overtime pay if they work more than 40 hours a week. This more than doubles the current threshold of $23,660. The exemption amount will be increased every three years beginning January 1, 2020 (based on the 40th percentile of weekly earnings of full-time salaried employees in the lowest region of the country). Lastly, the exemption threshold for highly-compensated employees will be raised from $100,000 to $134,004. This amount will also be adjusted every three years (based on the 90th percentile of full time workers in the lowest-wage region).
An employer must be careful to properly classify employees as exempt or nonexempt; if employees are incorrectly classified, they may be eligible to receive back overtime pay and other compensation by pursuing a lawsuit under the FLSA. Employers are encouraged to seek qualified legal advice if they have questions about whether an employee should be classified as exempt or nonexempt.

Employment Agreements

It has become more common for employers to require new employees to sign employment agreements when they are hired. These agreements are used primarily to protect company secrets and to discourage “employee poaching” by competitors. Generally, there are three types of employment agreements to serve these purposes: confidentiality agreements, non-compete agreements, and work-product agreements.
Confidentiality agreements are used to prevent a job applicant or an employee from sharing information about the company that he or she learns during a job interview or during the course of employment. The confidentiality agreement (often called a nondisclosure agreement) should specify the information that the applicant or employee may not disseminate or share. The agreement should also clearly state the period of time the agreement is valid and the period of confidentiality.
In a non-compete agreement, the employee signs a contract agreeing to not work for a competitor company or to start a competing business for a certain time period after his or her employment ends. Non-compete agreements must clearly state the period of time the employee must refrain from competition and must also clearly define the types of businesses that are considered competitors, both in terms of industry and geographic location.
Work product agreements protect a company’s intellectual property by stating that anything the employee creates during his or her employment remains the property of the company, rather than of the individual employee. The contract should clearly define the type of product to be protected by the agreement. A typical work product agreement states that work product includes “any and all discoveries, inventions, ideas, concepts, research, trademarks, service marks, slogans, logos and information, processes, products, techniques, methods and improvements” that the employee develops independently or in cooperation with other employees or companies.
Our firm can help your company establish proper documents that will protect the outcome of the investments you make in your staff.

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