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...]

Wage And Hour Audits

Employers are Effectively Powerless to Prevent State or Federal Authorities from Accessing Employee Work Schedules, Pay Histories and other Records, and Unprepared Companies are Vulnerable to Hefty Back Pay Orders and Penalties

By Jack K. Merrill, Esq.

It could be triggered in a variety of ways. A disgruntled employee complains. The government is concerned with industry practices. A stray remark reaches the wrong ears.  However a wage and hour audit starts, it forces employers to open their books and exposes them to potentially large back pay orders and fines.

Audits aimed at enforcing a plethora of wage and hour rules are common. They pose huge risks for unprepared employers, who may be hit with damage orders in the tens of thousands or higher. Defending against damage orders requested made by state and federal investigators is difficult and, in many cases, simply not practical. The best defense against an audit, then, is compliance with all wage laws.

Auditors cannot, after all, find fault with employers who properly pay their workers and maintain their records. Ensuring that wage laws are followed can thus immunize a business from audit risks. Doing so should be part of every company’s regular business practices.

To illustrate this point, a review of governmental authority and a look at the experiences of others are helpful. Here’s an overview of how audits work and where they may lead. [Read more...]

Massachusetts Child Support Guidelines – Effective August 1, 2013

Massachusetts has revised the Child Support Guidelines with the new guidelines taking effect on August 1, 2013. The guidelines adjust the formula for child support and provides judges with more use of their discretion and takes into account the parenting plan.

Read the new Massachusetts Child Support Guidelines.

Divorce and the Business Owner: Protecting the Business

Some marriages may last for decades, others just a few years. No matter how long a marriage lasts, divorce can have a profound effect on a business, unless the business owner took steps ahead of time to minimize the impact of divorce.

One of the best ways to minimize the impact is with a prenuptial agreement. In the event of divorce, a prenuptial agreement can prove invaluable in protecting a business and its assets. Massachusetts considers a variety of factors when deciding how to divide a marital estate, and a prenuptial agreement can help protect a business that would not otherwise be protected. In order to ensure that a prenuptial agreement will be upheld, it is important to consider the following factors:

  • Both parties should enter into the agreement willingly.  Neither party should feel pressured to accept the terms of the agreement.
  • Full financial disclosure must take place on both sides.  This includes an exchange of financial information including assets, liabilities, salary, etc.
  • Both parties should have their own attorneys, or be given the opportunity to seek independent legal advice.
  • The terms of the agreement must be fair and reasonable at the time of execution and at the time enforcement is sought. [Read more...]

How Do Divorce Modifications Work In Massachusetts?

At the time of your divorce, you likely address issues regarding child support, custody, health insurance, college education costs, and division of property. However, not all agreements and judgments contemplate the future, or others go through changes that warrant alterations to an original agreement or judgment. This is why some people need to return to court to modify prior agreements or judgments. It is important to learn how these modifications work.

Change of Circumstances

One of the most important things to know is that you must have a material change of circumstances to return to court regarding a modification. This change of circumstances can equal a major move, a job change that affects the current custody arrangement or a change in income which affects a support order. Talk to a qualified attorney first to determine if your circumstances warrant a modification to avoid unnecessary time in court.

What Can Be Modified?

The Separation Agreement dictates what provisions may be modified in the future.  These provisions are known as merging.  The most common provisions of an agreement that merge are child related issues, health insurance, and possibly alimony.  Provisions that do not merge are called surviving provisions.  Surviving provisions are not modifiable, even due to a change in circumstances.  The most common surviving provision in an Agreement is the property division. [Read more...]

Discrimination At Job Interviews

To Avoid Discrimination Lawsuits, Employers Should Be Familiar
With the Types of Questions They Can and Cannot Ask Their Job Applicants

By Jack Merrill
Most employers know it is illegal to discriminate against workers based on age, gender, race, disability or other characteristics. What some don’t realize is that asking the wrong questions on job applications and in interviews can also lead to charges of illegal discrimination.

Trouble in this area is easy to find. Even innocent questions are sometimes off limits. Asking the wrong ones can lead to discrimination lawsuits, even when the hiring decisions at issue are based on legitimate qualifications.

“What is your maiden name?” “What languages do you speak?” “Do you have children?” “Can you send a photograph with your job application?”

These questions and many others elicit information that employers cannot seek from applicants. Though an interviewer may not be thinking about discriminating when asking them, the questions suggest otherwise. They can, then, lead to an MCAD or other suit in which an employer will be forced to justify its hiring decision against a claim that it was discriminatory. [Read more...]

Employers Must Abide Data Security Laws

The Massachusetts Data Security Law is in effect. Its Broad Protections of Private Data Reach Employers of Virtually all Sizes and Types.

By Jack Merrill     

Massachusetts’ cutting edge data security law is in effect at last, and its reach is nothing if not broad. Though aimed at protecting private information in the wake of major security leaks, the new law applies to everyone who stores personal data of any sort, no matter how small the stockpile of information may be.

After several delays, Chapter 93H of the general laws took effect on March 1, 2010. It requires that all personal information about Massachusetts residents be protected through written security protocols, encryption of data, and notice procedures. Given the potentially stiff penalties for violations, all employers should already have new policies and security systems in place. Those that don’t should correct that oversight promptly.

The law’s purpose is to protect personal data that is stored in either paper or electronic form. It applies whenever a person’s first and last name (or first initial and last name) along with either a social security, driver’s license, or financial account/credit card number are in a company’s possession. Since virtually every employer stores this type of information about its workers, at the least, all must comply with the law. [Read more...]

Protection Against The Competition

Small Businesses that Enjoy a Competitive Edge from Unique Products, Marketing Approaches, or Customer Relationships should Carefully Protect their Key Assets

By Jack Merrill
Starting a successful business isn’t easy. It may require financial risk, long hours at the office, and maybe a bit of luck. The last thing a small business owner needs is to be damaged by the disclosure of its trade secrets to the competition.

Protecting the information that helps make a business successful, then, should be a central part of every business plan. Employees, after all, become former employees, sometimes with an aim of starting a competing enterprise. Through this route, by accidental disclosures, or as the result of careless use of secrets, key inside information can be revealed. The damage such disclosure can cause to profitability can be substantial. At times, it may even threaten a company’s survival.

Preventing a crisis like that requires careful planning. By first identifying critical inside trade information, then taking steps to control its dissemination, small companies can minimize their exposure in this area. The process should include several steps.

Getting Organized

The starting point for key asset security is strong organization. Businesses must understand the types of information they need to safeguard and be certain they know precisely how and by whom the data is stored and used. Common items meriting protection are customer lists; purchase and sales histories; pricing material; product plans; and marketing strategies. Good organization means that only those who need trade data to perform their duties will have access to it. It should include rules for data use and mechanisms for tracking who touches it, when, and for what purposes. Whether, for when, and in whose hands key assets leave a business’s offices should be mapped out.
Confidentiality Agreements [Read more...]

Notable Developments in Employment Law

Notable Developments in Employment Law Include Rules on the Waiver of Wage Act Claims, Support for Individual Liability for LLC Managers, and a Reminder of the Substantial Damages that can Flow from Acts of Gender or other Discrimination.

By Jak Merrill
Massachusetts courts were again busy in the employment arena in 2012. They issued rules on the waiver of Wage Act claims by employees and reinforced the idea that LLC managers can be personally liable for failing to properly pay their workers. At the MCAD, there issued yet another reminder of the huge potential price to be paid for acts of sex or other discrimination.

The trend in the employment arena continues to favor workers. At the Commission Against Discrimination, whose mission is to seek out discriminatory conduct, as well as in the courts, warnings for employers continue to issue. It’s now more important than ever for companies to understand the myriad laws that may impact their relationships with employees. Even the 2011 bright spot – a superior court judge’s conclusion that LLC managers are not personally liable for Wage Act violations – was undermined. Today, that issue seems to be going employees’ way, too.

What follows is a summary of some important employment law decisions from 2012.

Waivers of Wage Claims
Ensuring that a departing employee waives claims for unpaid wages now requires specific release language. The state’s highest court ruled late in 2012 that, when it comes to the state’s Wage Act, a waiver won’t be enforceable unless “plainly worded and understandable to the average individual.” The decision calls into question past releases that were general in nature and did not “specifically refer to the rights and claims under the Wage Act that the employee is waiving.” The Act requires employers to pay all wages within specific time limits and covers commissions and unused vacation time. Violators can be punished by triple damages and legal fees. [Read more...]

We’re getting divorced and grandparents want visitation too.

Additional Information:

My husband and I are getting divorced after an 8 year marriage. We’ve agreed to try to keep a sense of normalcy for our 3 young children, so they will live most of the time with me in our home in Sherborn but we haven’t yet come to an agreement about when they will stay with their dad and both sets of grandparents want to see the kids too. Is this something that can get written into the divorce agreement?

ATTORNEY ANSWER:

Yes, although it isn’t typical to provide for grandparent visitation in a Separation Agreement, if you can agree on it then you can include it.  Visitation scheduled can be as detailed and specific as necessary.  [Read more...]