Employment Law Articles

Wage Laws A Minefield for Unwary Employers

Understanding a Variety of Massachusetts Laws that Regulate Wages is Essential
for Employers, who Face Steep Penalties for even Unintentional Violations

By Jack K. Merrill, Esq.

One employer managed to turn $60,000 in wages it owed into a $500,000 judgment. Another paid $130,000 to avoid the much bigger risk it faced from a $40,000 claim. A third paid $950,000 to settle a class action suit that threatened to put it out of business entirely.

What links these employers is a misunderstanding of state law. None fully appreciated the expo-sure they faced under the Massa-chusetts Wage Act, and each care-lessly ignored its terms. Whether the error is failing to pay for all hours of work to the fraction, misclassifying workers as contractors, or withhold-ing earned wages, the result is the same – employers who break the law face triple damages, 12% in-terest, and attorneys’ fees for both their own lawyers and those em-ployed by their opponents.

A threat of suit under the Wage Act is a powerful weapon in the hands of a capable employee’s attorney. All he or she needs to bring tremendous and dispropor-tionate pressure to bear on an em-ployer is a viable claim for wages owed. Those who don’t buckle face huge damages risks. They are often forced to pay far more than they might owe to their workers in order to avoid the catastrophe that awaits if they opt to fight what proves to be a losing battle. [Read more…]

New Equal Pay Law: Employers Beware

The Massachusetts Equal Pay Act, a Toothless Lion for Decades, was Rewritten in July and may now become an Effective Weapon against Gender Pay Discrepancies

By Jack K. Merrill, Esq.

It was a long time coming, but promises of gender pay fairness in Massachusetts now have a chance of being fulfilled. A rewritten Equal Pay Act seeks to erase enforcement roadblocks set up by courts as it gives employers time to head off pay discrimination lawsuits.

The legislature hopes that the new law will eliminate gender pay gaps without a rush to the courthouse. As it redefines the proof standard for pay bias, the law gives employers nearly two years to evaluate pay scales and make “reasonable progress” to eliminate gender discrepancies. Those who do so may have an absolute defense to lawsuits. Those who don’t will face individual or class action claims.

Like most wage lawsuits, pay discrimination claims will be costly. Employers who lose will pay double the amount of wage shortfalls that result from gender pay differentials. They’ll also be required to pay employee legal fees and lawsuit costs in addition to their own. These expenses will be high in any equal pay case. In class actions, they’ll likely be exorbitant.

The key change that makes the revised Act worrisome for employers is the definition of the term “comparable,” the foundation on which pay differences between men and women are determined. Courts now require women to prove their job duties ‘have important common qualities’ with those of male counterparts. That requirement, a very difficult one to satisfy, is being replaced, and women – or men, of course – will soon win equal pay claims by proving only that their jobs require the same levels of skill, effort and responsibility as the jobs to which they are compared. [Read more…]

Broad Changes To Massachusetts Employment Laws Take Effect In 2015

By Jack K. Merrill, Esq.

In 2015, new laws and court decisions again brought big changes to employer/employee relationships. The net effect will likely be to increase the burden on Massachusetts businesses.

The biggest change should be familiar to all – the law requiring that all employees earn sick leave and that many of them be paid for using it. Massachusetts also amended its maternity leave statute to formally cover men on the same terms as women. Meanwhile, the state’s minimum wage rate continued its rise. Offsetting these changes to some degree are court interpretations of the independent contractor law that limits its applicability in two industries.

Here’s a summary of some but not all employment law developments from 2015.

Sick Leave

The statute that took effect on July 1, 2015 requires all employers to provide sick leave benefits to their employees. Accrual must occur at a rate of no less than one hour for every 30 worked, and, for employers of 11 or more workers, the time off must be paid. The statute places substantial limits on employer authority to challenge sick leave use, which need not be medically supported until it exceeds three consecutive work days. Since all employers must implement written policies, it’s more important than ever that all have employee manuals, regardless (almost) of company size. [Read more…]

Employee Handbooks: Critical For Managers

Complying with Employment Laws and Communicating Work Rules to Employees is Demanding, and Trying to do so without Written Policies Brings Substantial Risk

By Jack Merrill, Esq.

Keeping up with employment laws is tough on employers. New ones get enacted and old ones change. Complying with them all is essential, since breaking even one can cause major damage.

Still, many companies neglect a simple tool that protects them and makes communicating with employees far easier: employee handbooks. Putting one together is easier than it seems and can normally be contracted out. Once done, an effective and regularly updated employee manual can help ensure that costly violations of wage and other employment laws are avoided.

Handbooks generally cover all rules and policies that apply to workers. Work weeks, pay days, dress codes, and other routine matters should be covered. Doing so effectively ensures that employees know company rules and either comply with them or face consequences, which themselves should be spelled out in the handbook. Any manager can see the benefits of such communication. [Read more…]

Sick Leave Law Ready to Launch

As of July 1, all Massachusetts Employers must Provide Sick Leave Benefits to all Employees. Regulations by the Attorney General Offer Guidance, Warnings.

By Jack K. Merrill, Esq.

All employers should be aware by now that the new voter initiated sick leave law takes effect July 1, 2015. Under its regulatory authority, the state’s Attorney General has now issued final rules that govern the law’s implementation and warn about penalties for transgressing it.

The sick leave law may bring headaches to employers, who must award and track sick time in new and potentially tedious ways. Most will be forced to adjust existing sick leave policies to comply with the law, and all must reduce them to writing and post employee alerts in the workplace. Because penalties for violating the new law can be severe, employers who have yet to implement it need to move quickly and do so.

The law was voted into effect last November. It requires that every Massachusetts employee receive one hour of sick leave for every 30 hours of work. The time off must be paid by employers of 11 or more and can be used for personal or family illnesses, to attend medical appointments, or to address domestic violence issues. [Read more…]

2014 Statutes Increase Employer Obligations

By Jack K. Merrill, Esq.

In prior years, employment law changes came primarily from courts and could reasonably be characterized as adjustments. In 2014, however, Massachusetts enacted several new laws that will have major effects on employers.

The changes will bring increases to the minimum wage rate, mandatory sick leave benefits, and new rights for domestic workers. When the permanent creation of the Council on the Underground Economy and the early 2015 paternity leave law are considered, the landscape for employers looks substantially different.

Here’s an overview of each of the 2014 statutory changes.

Minimum Wages

Massachusetts was not the only state to raise the minimum wage rate last year, and the Commonwealth’s approach will be long-lasting. The phased increase will ultimately bring the minimum hourly rate to $11 on January 1, 2017. The rate went to $9 on the first of this year and will increase to $10 on January 1, 2016. Tipped employees also got increases, to $3/hour in 2015, $3.35 next year and $3.75 in 2017. In addition to these minimums, tipped employees must receive enough in tips to bring their total hourly earnings to the applicable minimum rate. Any shortfall must be made up by employers. [Read more…]

New Sick Leave Law Covers All Employers

The Statute Approved by Voters in November Requires
Employers to Provide Sick Leave Benefits by July 1, 2015

By Jack K. Merrill, Esq.

Though the process was unusual, the result is the same for employers – new obligations to workers. The sick leave initiative approved by voters on November 4 mandates benefits to all employees in Massachusetts and sets standards to comply with.

While most employers already offer sick leave benefits, the new law changes the playing field in important ways. Prescribed sick leave and job protections will be mandatory when it takes effect next July 1, and guidelines for leave use must be met. Regardless of current policies, all employers need to review their practices for statutory compliance. Most will be forced to make adjustments.

Part of the reason for this is uncertainty whether current policies will satisfy the law’s requirements. Part relates to specific conditions under which leave must be made available. And part derives from the grant of authority to the Attorney General’s office to make new rules.

The best approach, then, may be for employers to scrap their current policies and implement new ones designed to meet the specifics of the voter initiative. Doing so is easy enough, though adjustments might be necessary once the Attorney General implements its anticipated regulations. For now, employers should ensure that their sick leave policies include the following elements. [Read more…]

Changes on Horizon for Noncompetition Agreements?

As he Prepares to Leave Office, Gov. Deval Patrick Hopes his Second Proposal to Restrict the Use of Restrictive Covenants will One Day become Law

By Jack K. Merrill, Esq.

If the governor gets his way, his legacy will include restrictions on noncompetition agreements that, he hopes, will give an economic boost to the Commonwealth by removing impediments to growth. The question is whether Deval Patrick’s current proposal will fare any better than the first one he filed, which died without a vote this summer.

Mr. Patrick’s current bill is, he says, adjusted by lessons he learned during a legislative go-round that followed a noncompetition bill he filed earlier this year. Then, the governor proposed a ban on the agreements. Now, he’s hoping to simply enact what he sees as a balanced approach that would allow restrictive covenants when certain conditions are met.

Buried within the proposal – which is unlikely to be enacted during Mr. Patrick’s final term as governor because the legislature is not formally in session – is the underlying question, “why?” The governor’s answer is that non-competes impede economic growth by restricting employee movement. But while it’s easy to see how banning them might affect this perceived problem, it’s less clear whether procedural limits on them will do so.

To be sure, the governor’s current plan will not eliminate non-competes in Massachusetts. Indeed, it appears unlikely that it will even curtail their use. While Mr. Patrick would ban restrictive covenants for some employees – anyone who is not exempt from overtime laws – those affected by the exemption will likely be lower-level workers who are not often the subject of enforcement actions anyway. For others, non-competes will be allowed, just as they are today, if employers comply with a few simple rules. [Read more…]

Minimum Wage Increases Are on the Way

The Legislature made Quick Work of Conflicting Bills to Increase the Massachusetts Minimum Wage, which will Rise Annually and Reach $11 per hour by 2017

By Jack K. Merrill, Esq.

For the first time since January 2008, the Massachusetts minimum wage is rising. This time, legislation signed in June by Gov. Deval Patrick will hike the rate more substantially than in the past, from the current $8 per hour to $11 as of January 1, 2017.

The new baseline appears to be part of a nationwide trend to increase minimum wages. More than 30 states have considered rate increases in 2014, and Massachusetts is among 10 to enact them so far. When the $11 threshold is reached, the state’s minimum wage may be the highest among all states, though Washington D.C., which also raised its rate in 2014, will be at $11.50/hour by mid- 2016.

A minimum wage rate increase movement has developed amid protests by low wage earners across the country. In Boston, fast food workers led 2013 demonstrations that sought a rate increase to $15 per hour. While politics continues to prevent the federal government from moving its rate from $7.25/hour, state governments do not face the same problem. In Massachusetts, the minimum rate must remain at least 50 cents higher than the federal rate under the recently passed bill.

The Massachusetts increase begins to take effect on January 1, 2015, when the minimum rate increases to $9/hour. The rate will go to $10 on January 1, 2016, then to $11 a year later. In addition, the minimum hourly rate for tipped employees will increase from the current $2.63 to $3.75 by 2017. That class of employees, who are common in restaurants and other service businesses, must receive enough tips to bring their wages to the applicable minimum rate. Any deficiency must be made up by their employers. [Read more…]

Massachusetts Employment Law Review, 2013

The Year’s Most Important Employment Decisions in Massachusetts Resulted in a Broad Expansion in Application of the Wage Act, Adoption of the Principle of Associational Discrimination, and a Nugget for Employers: Power to Enforce Class Action Waivers

By Jack K. Merrill, Esq.

2013 brought a slew of important employment law decisions in Massachusetts that largely favor the employee’s side of legal arguments. While employers continue to hold broad power to deal with workers, they will face  broader application of wage and other rules going forward.

The most significant decisions concern the Wage Act, which mandates the timely payment of earnings to employees. Cases under the Act and other wage laws, such as ones governing overtime pay and tips, are among the most common of all employment lawsuits. Plaintiffs and their lawyers commonly use the Act’s triple damages and legal fee provisions to wrestle big settlements from employers, even when they think they did nothing wrong. [Read more…]