pam has written 383 posts for Law Office of Pamela A. Smith

Examples of LGBT employment discrimination

Some examples that the law views as unlawful sex discrimination include: Denying an employee a promotion because the employee is gay. Discriminating in terms, conditions, or privileges of employment, such as paying a lower salary to an employee because of sexual orientation. Harassing an employee because of his or her sexual orientation, for example, by derogatory […]

FMLA reinstatement rights and liquidated or double damages

It is illegal for an employer to interfere with an employee’s rights under the Family Medical Leave Act (FMLA). The FMLA prohibits an employer from interfering with an employee’s right to 12 weeks of leave. The FMLA also protects an employee’s right to reinstatement after the employee completes the legally protected leave. The employee is […]

Happy holidays!

As Christmas and the New Year get closer, now is a good time to say how grateful I am to regularly help people through challenging job situations. I am so happy that I can make a difference for my clients. It’s also a good opportunity to remind folks that work is not the most important […]

When can I use my sick leave under Massachusetts law?

Employers with 11 or more employees have to provide up to 40 hours of paid sick leave per calendar year. Smaller businesses must provide the same hours of leave, but it need not be paid leave. The law applies to all employees, whether full time, part time, temporary or seasonal. When can an employee use sick […]

Title IX prohibits discrimination in both educational programs and in employment decisions at educational institutions

The federal law known as Title IX prohibits discrimination in educational programs like the receipt of educational benefits.  The prohibition extends to discrimination in employment in a federally funded education program.  For example, if a female employee at a college faces discrimination like lower salary for work like that of her male colleagues, Title IX […]

Legal protection for employee religious beliefs, old and new, or atheist

Federal and Massachusetts law protect employees in all aspects of religious observance, practice, and belief. Religion is broadly defined to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism. It includes religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by […]

The corporate response to sexual harassment complaints is outdated, ineffective, and broken. Here are ways to fix it.

The process for handling sexual harassment complaints is broken. According to published reports and data from the U.S. Equal Employment Opportunity Commission, 95% of employees say sexual harassment goes unpunished. 40% of female employees experience unwanted sexual attention or sexual coercion at work. 60% of female employees report sexual harassment when the definition is broadened […]

Post-employment retaliation: Negative job reference by former employer can be evidence of illegal retaliation

According to a decision from the U.S. District Court in Massachusetts in March 2017, a plaintiff’s allegation that a former employer gave a negative employment reference is sufficient evidence to lay out a claim for illegal retaliation. In Soni v. Wespiser, the plaintiff was a female, board-certified neurosurgeon of Indian descent.  She resigned from a medical center […]

Rights under the Older Workers Benefit Protection Act (OWBPA): Even if you signed a release, an employer’s failure to meet specific requirements may allow you to seek additional severance for age discrimination.

The Older Workers Benefit Protection Act (OWBPA) is designed to protect the rights and benefits of workers 40 years old and up. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee does not not waive an age discrimination […]

Can I ask the employer to pay my COBRA premiums as part of a severance package?

Yes. An employer may provide funds for premiums under a severance plan. If the employer deducts the premiums from the severance pay and pays the insurer directly, the funds are excluded from wages and are nontaxable. If the employee receives the funds and can provide supporting documentation of the payment to the insurer, the funds […]

Who is entitled to overtime under Massachusetts law?

If you are a non-salaried employee, you must be paid time and a half for hours you work in excess of 40 hours per week. The employer can’t use payments of commissions, drawing accounts, bonuses, or other incentive pay based on sales or production to compute the regular hourly rate and the overtime rate of […]

Both the employer and an individual supervisor can be held liable for a violation of an employee’s FMLA rights

In Eichenholz v. Brink’s Inc., the US District Court of Massachusetts ruled that both the employer and the individual supervisor can be liable for violating an employee’s rights under the Family Medical Leave Act (FMLA). This decision is consistent with the majority of federal courts that have addressed the issue of supervisor liability under the FMLA. From […]

Emojis, emoticons, GIFs, Bitmojis, discrimination and sexual harassment

There is an “emerging law of emojis.” An emoji is an actual digital image or icon that is used to convey an emotion or intention in electronic communications like texts and emails. An emoticon is used when the sender groups a collection of standard keyboard characters, like :). Bitmojis, in which the sender uses a downloaded […]

An agreement between an employer and an employee to accept less than minimum wage is illegal

The current minimum wage in Massachusetts for non-agricultural workers and employees who do not receive tips is $11 per hour. For agricultural workers, the minimum hourly rate is $8. For tipped employees, the minimum hourly rate is $3.75. Massachusetts law says that an agreement between an employer and an employee to work for less than […]

An employer can’t rely on a noncompetition agreement to restrain employees from using their skills and general knowledge

An employee’s agreement not to compete with his or her employer is only enforced under Massachusetts law to the extent necessary to protect the employer’s legitimate business interests. Legitimate business interests include guarding against the release or use of trade secrets or other confidential information. Protection of the employer from ordinary competition is not a […]

For how long must an employer maintain employee personnel records?

The Massachusetts Personnel Records Act explains an employer’s statutory duty to maintain an employee’s personnel records. An employer of 20 or more employees must retain the complete personnel record of an employee from the first date of employment up until 3 years after the termination of employment. The employer’s duty to maintain personnel records is […]

Talk is cheap. Some times, the company’s sexual harassment policy is not worth the paper it’s written on.

Fox News just fired a prominent on air reporter for sending lewd text messages. He had a long history of crude behavior that was overlooked by management. When I tell folks that I represent clients who are the target of sexual harassment, they can be naively surprised and may say, “I can’t believe people still […]

Employee’s burden of proof in FMLA retaliation case

Elsewhere on this blog, I’ve discussed the protections the federal Family Medical Leave Act (FMLA) offers employees. The FMLA prohibits retaliation against an FMLA eligible employee who either asks to take FMLA or actually takes FMLA. An employee must do more than show that the employer used the FMLA protected leave was a negative factor […]

May an employer ask on a job application or in the interview whether a job applicant is disabled?

No. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. The employer may ask a job applicant whether he or she can perform particular job functions. These provisions are intended to prevent the employer from basing hiring and […]

FAQs: Rights and responsibilities of employer and employee under the Massachusetts Parental Leave Act

Who is eligible for parental leave under Massachusetts law?  It is not limited to birth mothers.  An employee is entitled to 8 weeks of parental leave so long as he or she: (1) has completed the initial probationary period (not to exceed 3 months); or (2) if there is no such probationary period, has been […]

Exhaustion of FMLA leave does not automatically foreclose additional leave. Massachusetts law is more flexible.

When convalescing from a disability related illness, employees can’t always pinpoint the exact date of their return to work. They may need additional time. Some employers mistakenly believe that they have no obligation to give an employee additional time off once the employee has exhausted all his or her leave under the federal Family Medical […]

Disability discrimination: An employee’s use of medical marijuana is allowed in Massachusetts, with some restrictions

Massachusetts voters approved a referendum allowing for the use of medical marijuana. The Supreme Judicial Court recently ruled that an employer who unilaterally fires an employee who is taking medical marijuana may face a claim for illegal disability discrimination. In Barbuto v. Advantage Sales and Marketing, the employee accepted a job doing promotional work.  She told the […]

Examples of questions asked during a company sexual harassment or discrimination investigation

Once an employer is put on notice of a sexual harassment or discrimination claim, it has a legal duty to conduct a prompt investigation and, if necessary, to take corrective action. The employer should conduct an investigation even if the employee changes his or her mind about coming forward. The employer can’t “un-hear” the report […]

Employee’s right to disciplinary records: Employer must produce all records, including supervisor notes, not just those in the HR file

The Massachusetts Personnel Records Act compels an employer to provide certain documents within five business days of an employee’s request for his personnel file. In addition to performance appraisals and job descriptions, the employer must produce any other documents relating to disciplinary action regarding the employee. The language is deliberately broad and mandatory. It allows employees […]

What kind of employer actions are required to reasonably accommodate job applicants and employees with disabilities?

Examples of reasonable accommodation include: Making existing facilities used by employees readily accessible to and usable by an individual with a disability. Restructuring a job. Modifying work schedules. Acquiring or modifying equipment that helps the employee do the essential functions of the job. Appropriately modifying examinations, training, or other programs. Reasonable accommodation may include reassigning […]

Restaurant employees, tips, tip pooling, and the Massachusetts Tip Act

Massachusetts law prohibits employers from retaining, requesting, or accepting any tip given to a wait staff employee or service bartender. Employers are barred from allowing employees who are not wait staff or bartenders from participating in a tip pool.  The Tip Act imposes stiff financial penalties for violations: restitution, mandatory triple damages, attorneys’ fees, and […]

Starting in 2018, new law in Massachusetts makes it illegal for an employer to prohibit employees from sharing wage information with co-workers

Some employers currently prohibit employees from talking with each other about their wages, bonuses, etc. Revisions to the state’s Equal Pay Act will make that policy illegal, effective in 2018.  The Equal Pay Act is designed to ensure the free flow of wage information within the workplace. It is intended to have a gradual, long-term […]

The intersection of pregnancy and disability discrimination, FMLA/maternity leave, and pregnancy related illnesses like post partum depression

It is a common misperception that the federal Family Medical Leave Act (FMLA) provides all the leave an employer is required to give employees. Massachusetts law requires a more flexible approach when the employee has a disability and the exact date of return is not yet determined. Independent of the FMLA, the employer must engage […]

Negotiating employment settlement agreements: The need to show both illegal conduct by the employer and actual, calculable damages like lost wages

You can’t effectively negotiate a severance agreement just by showing you lost your job. You have to provide credible evidence that the job action was illegal (e.g., discrimination, sexual harassment, retaliation for whistleblowing), and that you will experience serious financial loss as a result. You have to prove both legal liability and actual, calculable damages. Each […]

Five suggestions about what to do if you get a poor performance review

If you are worried that a poor performance evaluation puts your job at risk, consider the following suggestions as you weigh your options. Just complaining or becoming angry about the review will not get  you anywhere. First of all, you are not obligated to sign the review. On the other hand, signing the performance review […]

Trilogy of Wage Act cases bolsters employees’ rights to receive sales commissions, even after their employment terminates either voluntarily or involuntarily. Ignorance of Wage Act law is not a valid defense.

Beginning with a Massachusetts Supreme Judicial  Court decision in 2011 and through a recent US District Court decision in March of 2017, there is a compelling trilogy of cases that bolsters employees’ statutory right to receive sales commissions, even after their employment terminates either voluntarily or involuntarily. The Massachusetts Wage Act applies to employers who fail […]

If the employer delays enforcing a non-compete agreement, or doesn’t enforce it on everyone, can I relax?

The short answer is no. Non-competition agreements typically include a clause that says the company does not waive its legal rights if it does not immediately seek relief. The fact that the company does not come after you right away, or that it didn’t try to hold other former employees to the non-compete, is not […]

Layoffs: An employer who selectively cleans house cannot use convenient euphemisms like “downsizing” or “streamlining” to cover up illegal discrimination

An employer, consistent with its business judgment, can dismiss an employee during a reorganization or RIF (Reduction in Force). Trimming the fat from a company’s organizational chart may be a prudent practice. The flip side of the coin is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as “downsizing” or […]

Sexual orientation discrimination and harassment: Stereotypical comments about an employee’s masculinity/femininity, mannerisms, or attire are discriminatory, whether or not the employee is gay

Negative comments about an employee’s masculinity or femininity, or statements that an employee’s attire or mannerisms are “flamboyant,” are more than just offensive sexual connotations.  When these comments are frequent and pervasive, they support a claim for gender discrimination as well as sexual orientation discrimination and harassment, whether or not the employee is gay. In […]

Massachusetts whistleblower law protects government employees who tell a supervisor or a public agency about violations of law, or company actions that pose risks to public health, safety or the environment

Massachusetts has a whistleblower law that prohibits retaliation against a government employee who reports violations of law or risks to public health, safety or the environment.  Retaliatory action includes the discharge, suspension or demotion of an employee, or other materially adverse employment actions like a transfer or reduction in work hours. The Massachusetts whistleblower law […]

To call or not to call the company hotline or HR with a report of workplace harassment, misconduct or discrimination

Many companies have a hotline that an employee can call, either anonymously or not, to report concerns about misconduct, discrimination, harassment, financial irregularities, etc. There is no legal requirement that an employee must call one of these hotlines or notify Human Resources in order to pursue a legal claim. On the other hand, an experienced […]

Does an acquiring company have the right to enforce an employee non-compete agreement between the employee and the predecessor company that it acquired?

The answer largely depends on: (1) how the acquisition is structured; and (2) if the original agreement expanded the definition of “Company” to include the original company’s subsidiaries, affiliates and assigns.  A recent decision from the Business Litigation Session provided guidance for these two questions. Regarding the structure of the acquisition, the court held that the non-compete […]

Sarbanes-Oxley: Legal protection for employees of publicly traded companies who report financial misconduct, either internally or internally

To protect investors and preserve trust in financial statements made by publicly traded companies, federal law punishes employers who retaliate against employees who complain about financial misconduct. The law is known as the Sarbanes-Oxley Act (SOX). SOX protects more than just formal written complaints by employees to the government. It applies to employees who present […]

Employment disability discrimination: What does the law mean when it says the disability must substantially limit major life activities or bodily functions?

The law makes an important distinction between a disability that restricts a major life activity and a temporary impairment like a broken arm. An employee is covered by anti-discrimination laws if he or she is a qualified handicapped person who can do his/her job, either with or without a reasonable accommodation. To be a qualified […]

Cautionary reminder about non-compete agreements and the material change doctrine

The “material change” doctrine means that a noncompetition agreement is voided if there are material changes to an employee’s duties or compensation after the agreement is signed.  The change must be substantial rather than something basic like a change in job titles.  For example, courts ordinarily frown on enforcing non-competes when the company slashes the employee’s […]

New law will prohibit Massachusetts employers from asking applicants about their salary history

Beginning in 2018, Massachusetts becomes the first state to prohibit employers from asking job applicants about their salary history before making a job offer. The newly revised Equal Pay Act is designed to eradicate the pay disparity in jobs that are, for example, traditionally held by women versus those traditionally held by men. One reason […]

Federal law forbids an employer from using a sham “bonus” to avoid paying overtime.

Suppose an employer wants to control overtime costs by paying overtime hours as a “bonus” rather than time-and-a-half or double time.  A federal law known as the Fair Labor Standards Act prohibits an employer from using a sham “bonus” payment to artificially depress the hourly rate. The employee’s regular hourly rate must reflect all payments which are […]

To prove illegal retaliation, the employee must show that the retaliator knew that the employee’s absence was due to FMLA, rather than another possible reason

The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against an employee who takes protected time off under the Act.  However, it is imperative that the employee is able to show that the retaliator actually knew the employee was on FMLA leave, versus some other kind of leave. In Chase v. U.S.P.S., the evidence showed […]

Victim blaming: Saying an employee invited sexual harassment is not a sound legal defense

In Youngblood v. City of Boston Public Schools, a teacher claimed illegal retaliation after she complained that a male student sexually harassed her.  A Superior Court judge rejected the School Department’s motion to dismiss the case, pointing to comments by the principal that the teacher’s conduct probably invited the harassment by the student.  In other words, the […]

Employers are strictly liable for sexual harassment by either a direct or indirect supervisor

Employers are strictly liable for sexual harassment by a supervisor. In other words, the employer can’t defend itself by saying it did not know what the supervisor was doing. Strict liability extends to the actions of a person who is not the employee’s direct supervisor, but has some management authority over the employee. E.g., A […]

The “self help” doctrine: Employer can’t unilaterally fire an employee for gathering company documents to bolster her claim of bias

It is not unusual for a client to show me company documents in order to evaluate the merits of a claim. On more than one occasion, when I cite these documents in correspondence with defense counsel, they insist that the employee violated company policy by sharing these documents with an outside party. I, like other […]

Massachusetts passes its own equal pay law that broadens the definition of comparable work

You’ve probably heard that men are paid more than women are paid over their lifetimes. What does that mean? Are women paid less because they choose lower-paying jobs? Is it because more women work part time than men do? Or is it because women have more caregiving responsibilities? Why do women earn only 80% of […]

Just because not all of a co-worker’s sexually harassing comments were directed at the person who filed suit does not defeat a claim for a hostile work environment

In Sauer v. Beflog USA Group, the employe alleged that she was subject to crude, offensive conduct on a weekly basis over the course of six months. She felt intimidated, humiliated and unsafe at work. The employee complained that she experienced retaliation when the manager tried to get rid of her because she reported these incidents. The employer objected […]

It is illegal to fire an employee who complains about being paid “under the table”

Massachusetts has a general policy that at will employees can be fired for any reason so long as it is not illegal (like discrimination or sexual harassment) or in violation of public policy. The definition of public policy includes reporting something that is blatantly illegal. In a recent case, a Massachusetts judge denied an employer’s […]

One example of a problem with RIF’s (Reductions in Force): What if the employer did not actually eliminate the position? What if the employer just redistributed the work?

The fact that an employer retained in the same position an employee outside the plaintiff’s protected class may be persuasive evidence of illegal discrimination. For example, if the company lays off an older employee and keeps a younger employee, or fires a female employee and keeps a less qualified male employee, it can be held […]

Punitive damages awarded to an employee whose employer failed to fully investigate an employee’s claim of relentless sexual harassment

The Massachusetts Supreme Judicial Court recently affirmed a jury’s award of $500,000 in punitive damages to a woman who was the subject of relentless sexual harassment at work. The employee was fired due to her allegedly poor relationship with co-workers. At the termination meeting, the employee told the managers that she had been subjected to […]

Employer can’t just argue that a disabled employee is unqualified because he/she can’t do a newly assigned job. The employer must agree to an interactive dialogue that considers reasonable accommodations.

The Massachusetts Commission Against Discrimination (MCAD) ruled that an employer was liable for disability discrimination after it fired an employee who had a traumatic brain injury because, it claimed, the employee could not handle new tasks that he never previously performed. Even though the employee asked for reasonable accommodations to help him meet the goals […]

The Lilly Ledbetter Act and equal pay for women

The Lilly Ledbetter Act was passed after a US Supreme Court decision ruled that a female employee who did not learn about unequal pay treatment until after the 180 day statue of limitation could not proceed because her claim was time barred.  In response, Congress passed this Act to expand the statute of limitation by […]

An employer is liable for a worker who sexually harasses another employee, even if the harasser is not motivated by sexual interest in the victim.

An employer can’t avoid liability for sexual harassment by arguing that that the harasser was “just” a jerk and was not sexually attracted to the victim. In a recent federal court case out of Boston, the offending manager had not expressed any personal interest in the female employee.  However, there was ample evidence that the […]

Looking for a new job? Your old employer’s practice is only to confirm the dates of employment? Beef up your LinkedIn profile and get recommendations

While asking me questions about their legal rights and options, clients often worry about looking for a new job. They wonder what their old employer will say to a prospective new employer. I explain that many employers have adopted a business practice of only confirming the dates of employment and the job title held by […]

Important update: Judge grants injunction to stay new federal overtime rules scheduled for December 1, 2016

Today, a federal judge in Texas blocked a rule that would have extended overtime eligibility to an estimated four million Americans. The change was scheduled for December 1, 2016. The U.S. Labor Department’s overhaul to the overtime rule would have required employers to pay time-and-a-half to their employees who worked more than 40 hours in […]

Gay slurs against an employee are illegal even if the employee is not homosexual

Massachusetts law is clear that employees should not have to endure a hostile work environment because of their sexual orientation. Comments about a person’s sexual preference are improper. Protection from discrimination extends to employees who are taunted for being gay or called gay slurs even though they are not homosexual. The crux of the issue […]

Massachusetts employees must be given time off to vote

As Election Day nears, it is important to encourage voting. Massachusetts employees are legally entitled to take time off to vote. Massachusetts laws requires that employees who ask for time off to vote be granted a leave of absence to vote during the two hours after the polls open in their districts. Payment for voting […]

Recovering drug addicts are protected from job discrimination

The law against disability discrimination extends to employees who are recovering drug addicts. Addiction is considered a disability because it affects major life activities. An employer can no more discriminate against a recovering drug addict than it can discriminate against a person who was treated for cancer. The laws against disability discrimination are designed to […]

Forum selection clauses in noncompetition agreements

I’ve written elsewhere on this blog about Massachusetts law and noncompetition agreements. This post reminds employees to be wary of a clause that requires them to agree that any dispute is governed by the law of a state other than Massachusetts. This is called a “forum selection clause.” If you work in Massachusetts or live […]

Guaranteed paid sick days for employees of federal contractors begins in 2017

By Executive Order of President Barack Obama, companies that have contracts with the federal government must allow those workers to accrue up to seven sick days per year, beginning in 2017. Workers will receive one hour of paid leave for every 30 they work, capped at 56 hours annually. The workers must be notified each […]

Title IX protects school employees as well as female students and athletes

The federal law known as Title IX prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.  The U.S. Department of Education gives grants of financial assistance to schools and colleges and to certain other entities, including vocational rehabilitation programs. Although Title IX is perhaps best known for its role […]

A supervisor’s favoritism of his/her girlfriend or boyfriend can support a claim for a hostile work environment

Courts have acknowledged that when supervisors give preferential treatment to their paramours, other employees can use this evidence to support a claim of a harassing work environment.  For example, if the supervisor gives his or her girlfriend or boyfriend better work assignments, salary, or benefits, this can be used as proof of a hostile work […]

Vacation pay FAQs for Massachusetts employees

Employers who choose to provide paid vacation to their employees must treat those payments like any other wages under the Massachusetts Wage Act.  Like wages, the vacation time promised to an employee is compensation for services which vests as soon as the employee’s services are rendered. Failure to pay earned vacation time triggers mandatory treble damages […]

Individual liability: I know an employee can sue the company for discrimination and retaliation. But can a plaintiff sue individual employees?

Yes.  Massachusetts law holds individual defendants liable for: (1) retaliating against an employee for opposing discrimination; (2) interfering with the employee’s right to be free from discrimination; and (3) aiding, abetting, inciting, coercing or compelling another person to engage in discrimination or illegal retaliation. The fact that an individual defendant is not the plaintiff’s direct […]

Even if the employee doesn’t volunteer that he or she has a need for leave under the FMLA, what duty does the employer have?

Once an employer becomes aware that an employee’s need for leave is for a reason that qualifies under the FMLA, the employer must notify the employee that he or she is eligible for FMLA.  The employe does not need to specifically request time off under the FMLA. It is sufficient if the employer knows or […]

If my job title is manager and I am paid a salary, can I still get paid overtime?

Perhaps. Job titles alone do not determine overtime status. The fact that an employee is paid on a salary basis is not sufficient ground to exempt that employee from overtime pay. Workers in “managerial” roles should examine their day-to-day duties to see if they are spending a majority of their time managing others or usually […]

Sarbanes-Oxley, revenue recognition, and whistleblower protection

Employees of publicly traded companies who complain about fraudulent revenue recognition are protected from retaliation under the federal Sarbanes-Oxley Act. Revenue recognition is a fundamental business requirement that a company shall not recognize revenue until it is realized, or realizable, and earned by the company. Sales-based performance incentives, management pressure to meet revenue growth goals, […]

Must an employer pay overtime for weekend or night work?

The mere fact that an employee is asked to work weekends or nights does not, by itself, trigger overtime pay.  The Fair Labor Standards Act (FLSA) does not require extra pay for weekend or night work. However, the FLSA does require that hourly paid employees receive not less than time and one-half the employee’s regular rate […]

What I usually say when a client asks, “What would you do if you were in my shoes?”

At some point during my representation of a client when I outline their options, the client will ask, “What would you do if you were in my shoes?”  I respect how hard the decision making process is during a tumultuous time in the client’s work history.  The client may be struggling with how to respond […]

Hourly employees must be paid for “off-the-clock work”

Employers must pay hourly employees for all time worked.  Failure to do so can trigger multiple damages and a mandatory award of attorney’s fees.  If you suspect your employer is not paying you for all the work you do, or if you are an employer who is unsure about this issue, contact an employment lawyer. The […]

COBRA eligibility and employer notification duties: Employers are legally required to notify exiting employees of their COBRA health care coverage. Failure to do so triggers fines and penalties.

COBRA applies only to private-sector employers with 20 or more employees and a group health insurance plan. If your business employs fewer than 20 workers or does not offer its employees health care coverage under a group plan, you have no responsibilities as an employer under COBRA. Keep in mind, however, that COBRA counts part-time […]

Disability discrimination: It is illegal for an employer to avoid engaging in an interactive dialogue with an employee who asks for an accommodation of his/her disability

Employers are duty bound to engage in an interactive dialogue with a disabled employee to identify an appropriate, reasonable accommodation that will permit the employee to continue to do his/her job.  An employee’s request for reasonable accommodation necessarily triggers a corresponding obligation on the party of the employer to engage in a significant amount of […]

Can an employer require an employee to waive his or her workers compensation rights in a severance agreement?

No. An employer cannot ask an employee to waive his or her rights to workers’ compensation in a severance agreement. For example, consider an employee who negotiates a severance agreement in which the employee agrees to waive any claim for discrimination in exchange for a monetary payment from the employer.  The employer cannot include in […]

What you should know about confidentiality agreements and exceptions to their enforceability

Employers often ask employees to sign Confidentiality and Non-disclosure Agreements. If you signed such an agreement, you need to be careful that you don’t disclose confidential information when you leave that job.  Don’t share confidential information with a new employer for example.  These agreements include clauses that allow the former employer to seek injunctive relief […]

Offering retirement plans to get rid of older employees can indicate age discrimination

Offering a retirement package for the purpose of getting rid of older employees may constitute evidence of age discrimination. Likewise, employers also can’t develop recruitment programs for purpose of substituting persons who were retirement age. Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 146 (1st Cir. 2012). Offering a retirement packages in order to “flatten” […]

Does the employer have a duty to offer a reasonable accommodation to an employee with a disability who has not asked for one?

No. Because an employee’s disability and related need for accommodation are often not known to the employer until the employee requests an accommodation, the American with Disabilities Act’s (ADA) reasonable accommodation requirement usually does not apply unless triggered by a request from the employee. The employee’s request must be sufficiently direct and specific, giving notice […]

Supervisor who complains that employee’s FMLA leave is being used as a “vacation” is liable for illegal retaliation

In a recent case before the Massachusetts Supreme Judicial Court, a nurse took FMLA to deal with stress and anxiety. Her doctor encouraged her to take a short trip to take her mind off her stress. The nurse called her supervisor from New York City a week before her FMLA leave was scheduled to expire. […]

Advice for the nervous client during settlement negotiations

Let’s say you think you were fired for illegal reasons. The employer either offered you no severance or an amount that you don’t think reflects the value of the legal claims they are asking you to release. Negotiation, not immediate litigation, is a good approach, unless there is a looming statute of limitation deadline. With […]

Physician noncompetition agreements

A plaintiff that buys a medical practice cannot enforce noncompetition and nonsolicitation provisions against a doctor, even when those clauses are contained in an asset and purchase agreement. While Massachusetts courts recognize noncompetition agreements in many situations, the law specifically excludes physicians from such restrictions. The applicable Massachusetts law states, in relevant part, that any […]

Damages for violation of the Wage Act can include tripling of the unpaid wages plus tripling of the lost wages if the employee is fired for complaining about unpaid wages

  An employer who is found to have retaliated against an employee who complains about unpaid wages can recover both the unpaid wages and his lost wages from the date of the wrongful termination up until the date of trial. An award of back pay compensates plaintiffs for lost wages and benefits between the time […]

Because direct proof of discrimination is rarely available, employees can prove discrimination by relying on evidence that their employers gave a false reason for the job action.

The Massachusetts Supreme Judicial Court recently issued important guidance on this issue in Bulwer v. Mount Auburn Hospital.  The plaintiff was a black doctor from Belize who received several favorable evaluations and some unfavorable evaluations.  Some of the unfavorable evaluations had tinges of racial code words.  The Court overturned the lower court’s grant of summary judgment […]

Forensic examination of former employee’s laptop can trigger litigation.

Elsewhere on this blog, I’ve cautioned departing employees about downloading confidential, proprietary information from the company laptop to a private computer.  I’ve talked about cases where the employee finds himself the target of a lawsuit for violation of the federal Computer Fraud and Abuse Act. The Massachusetts Supreme Judicial Court has provided new guidance for this […]

Three necessary requirements for classifying a worker as an independent contractor instead of an employee

Massachusetts law states that an individual performing services for a company shall be considered an employee unless each of three specific requirements are met. If the employer fails to prove each of these requirements, the employer has misclassified the individual and faces serious financial consequences. The three essential elements are: (1) The individual is free […]

Injunction granted against former employee who, among other things, refused to surrender proprietary information after he left the company

The law recognizes that an employer has a right to protect its intellectual property. Therefore, it was not surprising to read a recent federal court decision granting an injunction that required a former employee to: (1) maintain the status quo on his electronic devices; (2) produce all such devices for data imaging; (3) compel him […]

Commissions, bonuses, incentive compensation, profit sharing, and the Massachusetts Wage Act

The Massachusetts Wage Act requires prompt payment of earned wages.  An employer’s failure to pay earned wages triggers mandatory triple damages.  The term “wages” means wages which the employee has “earned”, and not monies that are discretionary or contingent. Thus, bonuses which are discretionary are not considered wages under this law. Commissions that are based […]

Unless the commission was definitely determined at the time the plaintiff left the company, she cannot sue for violation of the Massachusetts Wage Act

The Massachusetts Wage Act requires an employer to timely pay earned wages, including commissions.  The commission must, according to the statute, be “definitely determined.”  For example, in Gallant v. Boston Executive Search Associations, Inc., the plaintiff was a recruiter for an executive search company.  The commission schedule was contingent on the period of time that the […]

Noncompetition agreement can be nullified by new employment agreement

Massachusetts courts will generally enforce noncompetition agreements that are reasonable in length and scope.  However, if the employer asks the employee to sign a new employment agreement that does not include a noncompetition agreement and does not refer to the pre-existing noncompete clause, then the employer has no right to enforce the earlier agreement.  Moschino […]

Disability discrimination – medical leave

In a recent federal court decision, an employer unsuccessfully moved for summary judgment against a former employee who alleged that he was terminated for taking two medical leaves of absence and temporarily shifting to a part time work schedule in order to manage his treatment for cancer. The day after the plaintiff returned from his […]

Examples of how an at will employee can file a claim under the public policy exception

Under Massachusetts law, the discharge of an at-will employee without cause is not, all by itself, a sufficient basis for imposing liability. The employee must show that the employer’s reason for the firing is a violation of public policy. Although an argument can be made for a rule of job security in such circumstances, the […]

Can I sue my out of state employer in Massachusetts?

Yes, if there is no forum selection clause in an employment agreement according to a recent decision out of the federal court in Boston.  The employer hired the employee, with the understanding that the employee would work out of his home in Massachusetts.  The employer provided the employee with office equipment and a business number […]

A poorly handled sexual harassment investigation can support an employee’s claim for illegal retaliation

Massachusetts law imposes a duty on employers to investigate sexual harassment complaints and take remedial action. When the employer negatively focuses its investigation on the complainant, she may have a retaliation claim. For example, an employer’s sexual harassment investigation that focuses almost exclusively on gathering unfavorable information about the complainant violates the employee’s right to be […]

Discrimination may be found when an employer replaces a terminated employee with someone at least 5 years younger

Under Massachusetts law, it is illegal for an employer to discriminate against an employee who is 40 years of age or older.  Massachusetts courts recognize that it is not the case that all persons over 40 are equally likely to be subject to age discrimination.  A company motivated to terminate an employee based on age […]

FYI re nonsolicitation agreements

If you are an employee who signed a nonsoliciation agreement with your employer, you have a duty to honor that contractual obligation. The contractual duty only goes so far though.  The law is that acting in one’s own financial interest is not sufficient to sustain a claim from a former employer for intentional interference with […]

An employee’s request to be exempt from mandatory overtime for an indefinite time because of a disability is not a reasonable accommodation that the employer must provide

The Americans with Disabilities Act (ADA) does not require an employer to accommodate a disability by foregoing an essential function of her job, or by reallocating essential functions to make other workers’ jobs more onerous.  In a recent federal court decision in Boston, the Court invoked this principle to grant summary judgment against an employee […]

Even if an employee is not technically eligible for FMLA, the employee can pursue a claim if the employer misled the employee into believing he or she was eligible for FMLA leave

In order to be eligible to take time off under the Family Medical Leave Act (FMLA), the employer must have 50 or more employees in a 75 mile radius of the worksite and the employee must have worked at least 1,250 hours in a 12 month period.  There are a number of federal court decisions […]

An employer cannot refuse to employ a job applicant who previously undertook protected legal activity while employed elsewhere

It is a well established legal principle that it is illegal to retaliate against an employee who engages in legally protected conduct, e.g, complaining about discrimination, sexual harassment, unpaid wages and commissions.  This principle extends to individuals who engaged in legally protected conduct at another employer.  In other words, Employer A cannot deny employment to […]

Employer can’t penalize a spouse who supports his/her spouse’s claim for sexual harassment

The Massachusetts Appeals Court recently ruled that a husband who is both a co-worker of his wife and a supporter of her claim for sexual harassment can proceed with a claim for illegal retaliation.  The husband notified the Human Resources Director that he planned to help his wife with her claim. The husband told the […]

An employer may not make a unilateral decision to instruct an employee who claims a disability to return to work without any prior communication with his doctor or with him.

The Massachusetts Commission Against Discrimination (MCAD) found in favor of an employer who, after suffering a work related injury, refused to return to light duty work because he had not yet received medical clearance.  He was capable of performing the essential functions of his job as a plumber, but only after he underwent physical therapy […]

No tipping policies may violate the Massachusetts Wage Act and trigger mandatory treble damages

What is the effect of a no-tipping policy?  Employers of wait staff do not need to permit customers to tip employees.   However, if the employer has not clearly communicated its policy to customers, tips left by customers where service is provided by wait staff belong to the employees.  The employer may not keep the […]

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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