Employment Law Blog

The contemporary American workplace is susceptible to numerous federal, state, and local laws that impose strict obligations on businesses (e.g., wage and hour laws and regulations, nondiscrimination legislation, etc.). A lot of companies, especially smaller businesses, usually do not know the scope of those obligations and, therefore, frequently (albeit inadvertently) violate legislation. These violations can cause costly lawsuits, and also civil and criminal penalties. In my experience as being a defense attorney in addition to being a plaintiff’s lawyer, the most frequent employment law mistakes done by organizations are the next (in no particular order):- Misclassifying personnel as independent contractors. Normally, only workers who operate their unique separate companies are “independent contractors.” Few workers meet this test; actually, most personnel are considered “employees” for the law, which suggests they’re eligible for the total selection of workplace protections.

- Misclassifying non-exempt employees as exempt. Normally, all workers are eligible for minimum wage and overtime pay, unless these are “exempt” under state and federal law. The exemption rules (e.g., for executive, administrative, and professional employees) only apply in limited circumstances, however; consequently, many staff members who’re claimed by businesses to become “exempt” in reality have entitlement to minimum wage and/or overtime pay.

- Not complying with state wage payment law regulations. i.e. New York imposes several specific rules regarding how businesses be forced to pay their employees. These rules include providing new personnel with written notice of these rate of pay and regular pay date; prohibiting deductions from wages unless to the employee’s benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated employees with written notice of the last day’s work, their last day’s benefits, and their right to make an application for unemployment benefits.

- Not using a worker handbook. A worker handbook is a crucial tool for effective employer-employee relations. It notifies employees of the company’s values, policies, and procedures; promotes compliance with labor and employment laws and regulations; so it helps create an orderly, efficient, and transparent workplace.

- Not documenting employee job performance. A well-managed enterprise clearly communicates its employees’ duties and responsibilities (e.g., through written position descriptions), trains and supervises personnel to be sure they are meeting these requirements, and offers regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A deficiency of accurate, complete, contemporaneous documentation can result in liability in the case of a case by a worker.

- Not training supervisors regarding EEO legislation. Federal, state, and local equal employment opportunity (EEO) legislation prohibit businesses from taking adverse actions against employees (e.g., demotion, termination) for reasons not associated with an employee’s job performance, including those determined by an employee’s race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status ( to mention the most typical “protected characteristics”), plus retaliation for an employee’s good faith complaints of discrimination. It is imperative that supervisors learn the way to manage employees without violating (or appearing to violate) these laws.

- Not providing reasonable accommodations for disabled staff members. Most EEO law regulations prohibit businesses from taking adverse actions against workers depending on certain protected characteristics, but disability discrimination laws and regulations also impose an affirmative obligation on businesses to “reasonably accommodate” disabled employees in order to assist them to perform the fundamental functions of the jobs. Such accommodations can sometimes include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses have to give a disabled personnel with needed accommodations unless this would cause an “undue hardship” for the organization (e.g., very costly, too disruptive).

- Not obtaining releases from terminated workers. When terminating a worker, businesses need to get a release that waives the employee’s potential legal claims against the business. The simplest way to get a release is in exchange for an offer of severance (where appropriate). Generally speaking, businesses are not essential to pay for severance to workers (unless necessary for an employment contract or even a collective bargaining agreement). If they plan to do this (e.g., in association with layoffs), they need to require workers to sign a release in substitution for the payment.

- Not protecting confidential enterprise information. Every corporation is dependent upon certain vital, often confidential, specifics of its enterprise operations, including trade secrets, marketing and advertising practices, and customer and client lists. Access to this information must be tied to employees with a “need to know” and may be protected by appropriate non-disclosure, non-compete, and/or non-solicitation agreements (depending on the nature of the information as well as the employee’s position).

- Not consulting a certified employment law attorney. Perhaps the one most significant point to take away from this discussion is always that businesses must consult an experienced employment lawyer to ensure they are in compliance with all the increasingly numerous and complex law regulations that carpet work just like a minefield. Large organizations most often have attorneys and hr professionals working to aid them in this field. Small- and medium-size businesses often don’t. Their biggest mistake is attempting to navigate this minefield by themselves.

So you? Exactly what are your top ten mistakes made in employment law?

About me: Stacia Abner writes for labor law training courses , her personal blog where she writes about her experience as defense attorney to assist workers and companies take care of the elements of employment law.

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According to Debra Cassens Weiss of the ABA Journal, some courts are siding with employees when companies monitor their personal e-mail without adequate warning.Companies claim they have the right to all keystrokes on company property, allowing them to delve into employees’ personal e-mail sent from work. But some judges are now siding with employees who had a reasonable expectation that their personal e-mail wouldn’t be accessed, the Wall Street Journal reports.

Among the cases highlighted in the article:

• A New Jersey appeals court ruled that a home health-care company facing a discrimination suit by a former employee could not rely on e-mail the plaintiff sent to her lawyer on a work laptop. Corporate policies did not suggest that an employee had no expectation of privacy in personal e-mail, according to the appeals court. “We reject the employer’s claimed right to rummage through and retain the employee’s e-mails to her attorney,” the opinion said.

• A former vice president of sales for a data management company sued when she learned her boss had been reading her personal e-mail account. The boss claimed he feared the employee was revealing trade secrets. A jury ruled for the employee, and the case settled.

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In a landmark employment law case recently decided, Attorney Jeffrey Mazer, of the Mazer Law Group, LLC, an attorney who our firm works with very closely on all employment law related matters was victorious in a decision, where A Superior Court judge has ruled that if an employee brings in work to a company, and that company in the normal course of business pays some sort of referral or commission based fee, then that fee is considered a part of an employee’s overall compensation. As such, even if an employee were to be fired, quit, or is otherwise not with the company any lead from that former employee that results in a sale, settlement, or any other financial benefit must be paid to the former employee. Should the employee not receive their fair share of the fee or sale, the employee would be entitled to 3 times the normal compensation pursuant to the Massachusetts Wage an Hour Act.

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In order to establish a prima facie case of reprisal, a complainant must show that he or she engaged in activity protected by some state of Federal law. The employee must also demonstrate the employer or supervisor of the employer was aware of the prior protected activity, the employee was subjected to adverse actions or employment decisions, and that the adverse actions or employment decisions occurred within such a period of time that a causal connection between the protected activity and the adverse actions may be inferred. Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, aff’d 545 F. 2d 222 (1st Cir. 1976). The employee “must show by a preponderance of the evidence that: (1) [he] engaged in a protected activity as an employee, (2) [he] was subsequently discharged from employment, and (3) there was a causal connection between the protected activity and the discharge.” Hoeppner v. Crotched Mountain Rehabilitation Ctr. Inc., 31 F.3d 9, 14 (1st Cir.1994).

A claim concerning an employee complainting of illegal conduct or discrimination by his employer is one such protected activity. The employee must have a reasonable belief that the practice the employee is opposing violates Title VII or the Massachusetts General Laws. See Sias, 588 F.2d at 696; Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir.1990) (employee needs to show, in a case involving the opposition clause, that “he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring”).

When an employee is opposing practices made unlawful by Title VII outside of the context of any administrative or judicial proceeding, such activity is only protected if the employee has a good-faith or reasonable, even if mistaken, belief that there is a Title VII violation against him or her or against a third party.

Furthermore, the employee’s claim of retaliation may succeed even if the underlying claim of harassment fails. Bain v. Springfield 678 N.E.2d 155; Abramian v. President & Fellows of Harvard College, 432 Mass. 107. “Complaining to management or filing an internal complaint of harassment,” or “meeting with co-workers to discuss how to stop sexual harassment in the work place can trigger the protections of c.151B.” Ritchie v. Dept. of State of Police, 60 Mass.App.Ct.655, 665 (2004).

Listen to the Podcast of this post here.

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HRhero.com recently posted a very interesting article relative to the EEOC protecting the intelectually disabled.  Below find the article:

EEOC issued guidelines in late 2004 on the employment of the mentally challenged. They reaffirmed their position that ADA protections extend to those perceived as intellectually disabled. This is a sure sign that the EEOC, lawyers and interest groups representing intellectually disabled applicants and employees are gearing up to make an example of some employer.

Does your staff know how to manage the application and interview process when it comes to the intellectually disabled? Do they look for and suggest potential accommodations these employees might require? They better, if you want to remain free from legal pitfalls.

Many individuals who are intellectually disabled would like to work, and the ADA helps ensure that they’re legally protected in the workplace. But sometimes these workers have special needs that can conflict with your standard operating procedures.

If you employ — or are considering the employment of mentally challenged workers — you owe it to your organization to participate in the audio conference event EEOC Gears up To Protect the Intellectually Disabled: Are You Ready? You’ll learn how to find compassionate solutions to worker challenges while allowing your company to continue to operate efficiently. Most importantly, you’ll be armed to meet your legal obligation to accommodate the employee’s disability and avoid charges of discrimination.

In 90 fast-paced minutes, you’ll learn:

• The difference between “mental disabilities” and “intellectual disabilities”
• How to approach dealing with an unqualified disabled individual vs. one who requires a reasonable accommodation
• How to coping with the challenges of job functions for intellectually disabled employees
• Obtaining and using medical information: verifying the abilities of an employee with intellectual disabilities
• Disciplining the intellectually disabled employee
• What can you say? Protecting the privacy rights of intellectually disabled workers
  Because EEOC Gears up To Protect the Intellectually Disabled: Are You Ready? is an audio seminar on CD you enjoy:

  Fast, convenient learning without any out-of-office time lost.

  • No travel-related expenses or complications.
  • The perfect way to train as many employees as you like.

�

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The stigma of filing bankruptcy has stopped many debtors who rightfully and propably necessarily need to file bankruptcy. The truth of the matter is that filing bankruptcy is a right granted to all Americans by Congress and as such, is a protected right. As a protected right, it is illegal to discriminate against debtors as employees pursuant to both Massachusetts law, MGL 151B, and Federal Law (Civil Rights Act and Bankruptcy Code). More specifically, 11 U.S.C.A § 525(b) provides, “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt”.

There has been several cases directly on-point with the forgoing. In one case, a Police department rule rendering a city policeman subject to dismissal for the filing of a petition in bankruptcy was unconstitutional under U.S.C.A.Const. Art. 6, cl. 2, since the rule, while intended to insure a reliable and respectable police force, had the effect of prohibiting a policeman burdened with staggering debts from obtaining “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt”, an effect in direct contravention of the stated purpose of this title. Rutledge v. City of Shreveport, W.D.La.1975, 387 F.Supp. 1277.

Chapter 13 debtor, a former chief appraiser for a county tax appraisal district, was fired from her job in violation of the Bankruptcy Code’s antidiscrimination provision where it was apparent from the totality of the circumstances that appraisal district’s board of directors determined that debtor would be discharged because they were embarrassed that she had filed bankruptcy and that it had become public knowledge. In re McKibben, Bkrtcy.E.D.Tex.1999, 233 B.R. 378.

Pursuant to Federal and state law, it is also a violation of law to either refuse or fail to promote or hire an employee based upon their status as a bankruptcy filer. In one case, an employer’s failure to offer participation to debtor in commission advancement program after debtor had filed for bankruptcy, when all other account specialists were offered participation, violated antidiscrimination provision of Bankruptcy Code, where determining reason for failing to offer participation to debtor was fact of his bankruptcy. In re Vaughter, bkrtcy.W.D.Tex.1989, 109 B.R. 229.

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Laws protecting debtors from employment discrimination, more specifically, failure to hire, promote or termination after filing bankruptcy, have been deemed illegal discrimination pursuant to both Federal and state law.

No employer is allowed to terminate an employee or discriminate against said employee solely because they are bankrupt or a debtor. This includes an individual who is or was a debtor under the Bankruptcy Code, a debtor or bankrupt individual under the Bankruptcy Act, or one associated with such debtor or bankrupt individuals. 11 U.S.C.A. § 525(b)(1). This also includes an employee who is in the middle of a bankruptcy proceeding but it has yet to commence. 11 U.S.C.A. § 525(b)(2).An employee who has filed for bankruptcy can be discharged if their employer can show a real legitimate reason for their termination. Laracuente v. Chase Manhattan Bank, 891 F.2d 17 (1st Cir. 1989). This filing of bankruptcy must be the sole reason for the employer’s discrimination in order for the employee to recover. 11 U.S.C.A. § 525(b).

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There is no clearly established public policy requiring employers to refrain from demanding that their adult employees work long hours, nor is any public policy directly served by employee’s refusal to work long hours. Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997In DeRose v. Putnam Management Co., Inc., 398 Mass. 205, 496 N.E.2d 428 (1986), $25 million dollars in securities went missing and the FBI investigated. When a former employee eventually went on trial for the theft, the management ordered the Plaintiff to lie under oath. “You are going to be testifying, you better implicate him [McGrath] because you know he is guilty.” The plaintiff responded that he “didn’t know any such thing.” Nothing further was said. In his testimony, the plaintiff did not implicate.

Plaintiff was fired because he did not implicate a former employee at a criminal trail. The “seminal” case in this area is Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal.App.2d 184, 188-189, 344 P.2d 25 (1959) where an employee was fired for not testifying falsely. The Massachusetts SJC stated, “We too conclude that, even in cases where the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.”

Redress is available for at-will employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury). Falcon v. Leger, 816 N.E.2d 1010, (2004)

Public policy exception to at-will employment rule has been made available to employees discharged for performing important public deeds. Mistishen v. Falcone Piano Co., Inc., 630 N.E.2d 294 (1994)

Jurisdictions outside of Massachusetts have also held it illegal to terminate an employee for failure to comply with managements directive to violate a public policy.  More specifically, in Larkey, the court affirmed a jury verdict for the plaintiff, who claimed that, while he was employed as a truck driver, his employer wrongfully discharged him in retaliation for his refusal to violate Illinois law by driving his truck through the state with a load greater than the statutory maximum 73,280–pound weight limit. Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 93, Ind.App. 2 Dist. (1994). 

The court in Winkelman v. Beloit Memorial Hosp., 168 Wis. 2d 12, 483 N.W.2d 211 (1992), held that evidence supported a finding that the discharge of a nurse who refused to work on a ward for which she was not qualified violated the public policy that the sick be cared for only by those qualified to do so. 

In another case on point,  an employee refused to violate the Federal Clean Air Act by dispensing leaded gasoline into an automobile equipped to receive only unleaded gasoline. Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (1987)

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A central issue that many Plaintiff’s face in bringing claims for sexual harassment in the workplace is whether they were actually offended. More specifically, when a Plaintiff has engaged in conduct at work that may be construed as sexual in nature, whether it be sending sexually explicit emails, viewing pornography at work on their workstation or other similar conduct. The question that must be asked is whether such a person can assert a claim for sexual harassment and survive the Defendant’s challenge that such a person can not claim any sexual comments or activity is unwelcome.The complaining party must actually be offended by the conduct at issue. Ramsdell v Western Massachusetts Bus Lines, Inc., 415 Mass. 673, 677-678 (1993).To determine whether a claim of hostile environment harassment is made out there is an objective and subjective test. To be actionable the harassing conduct must be work-related. Muzzy, 434 Mass at 411 The conduct complained of must be sufficiently severe or pervasive to interfere unreasonably with the work performance of a reasonable person in the plaintiff’s situation. Winters v ADAP, Inc., 76 F.Supp.2d 89, 95 (D.Mass.1999)

In order to successfully demonstrate sexual harassment, a victim has the burden of proof. Massachusetts law recognizes two distinct categories of illegal conduct: quid pro quo harassment: where requests for sexual favors or acquiescence in sexual advances are made a condition of employment or as a basis of employment decisions; and hostile harassment, where an abusive work environment is created by verbal or physical conduct of a sexual nature which “unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

To determine whether conduct is “unwelcome,” it is permissible to examine the victim’s actions. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986). At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between the Plaintiff and the supervisor. While the question whether particular conduct was indeed unwelcome presented difficult problems of proof and turned largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry was whether the Plaintiff by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986).

The court in Henson v. Dundee, determined whether the conduct was unwelcomed by “the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Henson v. City of Dundee, 682 F.2d 897 (1982).

The mere fact that a female employee participates in some workplace conduct that is sexual does not, by itself, prove that the conduct is welcome and that she does not perceive her environment to be hostile, as would preclude a sexual harassment claim under Title VII or Massachusetts law; nor does it suggest that the employee enjoyed or appeared to enjoy the campaign of harassment against her. Horney v. Westfield Gage Co., D.Mass.2002, 211 F.Supp.2d 291, affirmed in part, reversed in part 77 Fed.Appx. 24, 2003 WL 22326558.

Evidence that sexually-charged and abusive language in female employee’s workplace, even if not gender-related, was used regularly by men toward women, together with evidence of sexual calendars, pictures, jokes, and posters in the workplace, presented a question for the jury regarding whether such conduct was gender-based, as required to establish sexual harassment under Title VII and Massachusetts law. Horney v. Westfield Gage Co.

In determining whether sexually harassing conduct violates Massachusetts law, courts may look to interpretations of Title VII, but are not bound by interpretations of Title VII in construing Massachusetts law prohibiting work environments pervaded by harassment or abuse. Mullenix v. Forsyth Dental Infirmary for Children, D.Mass.1996, 965 F.Supp. 120. To establish sexual harassment claim under Massachusetts law, there must be showing that work environment is subjectively offending to plaintiff; plaintiff must show that employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to plaintiff in way which affected her performance. Mullenix v. Forsyth Dental Infirmary for Children.

In determining whether the work environment is hostile, significant out-of-work harassment may be considered. Salvi v. Suffolk County Sheriff’s Dept. 855 N.E.2d 777, 67 Mass.App.Ct. 596(2006).

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