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Boston Employment Law Q&A

Answers to Your Frequently Asked Questions

Every employment law case is unique, which is why you should consult an attorney for legal advice on your specific matter. That being said, employers and employees often have similar questions. Below are a few of the common questions our clients have asked in the past.

If you don’t see your question listed here, don’t hesitate to contact us at (978) 228-2262.

Questions about Sexual Harassment

How do you know if inappropriate behavior at work constitutes unlawful sexual harassment?

If your supervisor asks you to perform sexual favors in exchange for benefits at work or demands that you perform sexual acts with him or her to keep your job, this is sexual harassment. The legal term is ‘quid pro quo’ harassment. It is illegal to make a raise, a promotion, or keeping your job contingent upon sexual favors. There is a second type of sexual harassment called ‘hostile work environment.’ This means that people in your workplace, either supervisors or co-workers, are making comments that are of a sexual nature or playing pranks that are sexually degrading which happen so often that it makes it intimidating to go to work.

Must sexual harassment involve a man and a woman?

Absolutely not. In fact, there has been a dramatic increase in the past decade in the number of cases in which men allege sexual harassment by women, men allege sexual harassment by another man, and women allege sexual harassment by another woman.

Should I always report sexual harassment?

Yes, though it is prudent to speak with an attorney first. If an employee is being sexually harassed by a co-worker or a supervisor, the company may not be liable if the employee does not report the sexual harassment.

Will the supervisor or co-worker who is committing the sexual harassment be liable at trial?

In Massachusetts, a supervisor who is sexually harassing an employee can be sued personally. It may or may not be a good idea to actually sue the supervisor. Whether or not it is a good idea is a very fact-specific analysis, and it is prudent to speak with an attorney about whether it is a good idea or not in any particular case.

Questions about Wage & Hour Laws

Does the company have to pay my wages right after I stop working?

It depends. If the employee quits, the company is obligated to pay the employee based upon the company’s next regularly scheduled payroll cycle. If the company fires the employee, then all wages must be paid that very day.

Does the company have to pay me my unused vacation and sick time after being fired?

Unused, accrued vacation pay is considered a wage and must be paid to the employee. It is important to note that some companies have a ‘use it or lose it’ policy, which means that vacation time does not roll over from year to year. Companies must have a clear, written policy in this regard. In contrast, companies do not have to pay employees for their unused sick time.

Is it true that a company has to pay triple the amount of unpaid wages if the employee proves his or her case in court?

Judges have the discretion to award treble (triple) damages if the employee proves that the company willfully violated the Wage and Hour Act. If the company is regarded to have been negligent in violating the statute, the courts will likely award single damages, i.e., the amount owed. (Note: There is pending legislation being debated that may make treble damages mandatory.)

Questions Regarding Unemployment Benefits

Can I collect unemployment benefits if I am fired from my job?

The Department of Unemployment Assistance (DUA) is the state agency that determines whether an applicant is entitled to unemployment benefits. If the DUA determines that the company’s decision to terminate was not based upon the employee’s violation of a uniformly enforced company policy and/or was not based upon the employee’s deliberate misconduct in willful disregard of the employing unit’s best interest, then the DUA should approve the application for unemployment benefits.

If I quit my job, can I get unemployment benefits?

It is possible, though most people who quit or resign do not get unemployment benefits. The individual will have to demonstrate that there were compelling reasons that justified the resignation and that the employee took reasonable steps to resolve the workplace problem before taking the drastic step of quitting. By way of example, if an employee is being subjected to sexual harassment despite notifying management, or if the company relocation causes a dramatic increase in an employee’s commute, the DUA may approve the employee’s application for benefits.

Can I collect unemployment benefits if I get a severance package?

Probably. Nowadays, most companies require an employee to sign a release of claims as part of any severance package. In these situations, the employee can still collect unemployment benefits.

Questions about Discrimination Laws

If I want to file a complaint about discrimination, where do I go?

The Massachusetts Commission Against Discrimination (MCAD) is the state agency that handles all discrimination claims pursuant to Massachusetts General Laws, Chapter 151B. The Equal Employment Opportunity Commission (EEOC) is the federal agency that handles discrimination matters pursuant to the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Anyone considering filing a claim with the MCAD or EEOC should consider speaking with an attorney first.

Is there a time limit to bring in a claim for discrimination?

Yes, there is a 300-day limit, which is called the statute of limitations. Again, it is important to consider contacting an attorney as soon as possible.

Miscellaneous Employment Law Questions

How do I know if I am an employee or an independent contractor?

Job titles are often misleading. It is important to look at the work being performed. Some companies (intentionally or unintentionally) misclassify workers as independent contractors when in reality these workers are employees of the company. As a result, these workers are not entitled to the same benefits as employees and have to pay the ‘self-employment tax’ of 7.65 percent because the company is not making contributions, (i.e., FICA, FUDA). While the federal law uses a test called the ’20 factor test’, Massachusetts uses a much more stringent test that is set forth in the statute. Massachusetts companies should be cautious about identifying workers as independent contractors who have an ongoing relationship with the company.

Are non-compete agreements enforceable in Massachusetts?

A Massachusetts court will enforce a non-compete agreement only if it is necessary to protect trade secrets or goodwill. The agreement must also be reasonable in scope (i.e., time and geography) and if it furthers the public interest. Massachusetts companies cannot use these agreements to restrict general competition. Employees have numerous defenses to assert which can invalidate the non-compete obligations. These defenses are particular to each situation, so employees are advised to consult with an attorney prior to signing a non-compete or non-solicitation agreement and prior to taking steps that might violate one that is already in place

If there is a progressive discipline policy in my handbook, does the company have to comply with it?

Probably not. Most employee handbooks explicitly and clearly communicate that the handbook does not grant any contractual rights or protections to the employees. In fact, the handbook probably starts off with a disclaimer that explains that employees are ‘at will’ employees, which means that they can be fired with or without cause or notice. Some companies that use outdated or poorly drafted handbooks sometimes unintentionally open the door to claims. Business owners take note – it is better to have no handbook than a poorly drafted handbook.

If you are interested in hiring Davis & Davis, P.C., please contact us online or call us at (978) 228-2262 to schedule a consultation with a member of our legal team. We serve clients in Middlesex, Essex, and Suffolk counties.

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