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SUPREME COURT PROTECTS LGBTQ+ EMPLOYEES FROM DISCRIMINATION

Supreme Court Protects LGBTQ+ Employees From Discrimination
The Supreme Court of the United States issued a decision on Monday, June 15, 2020 making it illegal for employers to discriminate against employees on the basis of gender identity and sexual orientation.

The case expands workplace rights for employees who are members of the LGBTQ+ community. The case, which consisted of three separate cases consolidated into one, reached the Supreme Court after frustrations over the lack of workplace protections for LGBTQ+ individuals. In one case, an employee of Clayton County, Georgia was fired from his job after his employer found out that he played in a gay recreational softball league. In another case, a skydiving instructor was fired after telling a client of his that he was gay. In the third case, a funeral director was fired after disclosing to her employer that she was transgender and was intent on living her life as a woman.

The decision expands on the language in Title VII of the Civil Rights Act of 1964, making it illegal under federal law for employers to discriminate against employees on the basis of sexual orientation or gender identity. LGBTQ+ persons are now included in the “sex” category of Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch wrote in the opinion that inherent discrimination exists when firing an employee based on sexual orientation or gender identity because, in that circumstance, the employer is discriminating on the bases of actions and traits that wouldn’t typically be questioned in someone of another gender or sexuality.[1] Justice Gorsuch expanded further, writing: “Sex plays a necessary and undisguisable role in the decision [to fire an employee], exactly what Title VII forbids.”[2] The court left unclear […]

Legal Obligations of Businesses Relative to the COVID-19 Pandemic

Legal Obligations of Businesses Relative to the COVID-19 Pandemic

As of March 16, 2020 the Commonwealth of Massachusetts has cancelled public and private schools for three (3) weeks, various colleges and universities have moved entirely online and required students to move out, and gatherings of 25 or more individuals have been prohibited. There is a civic responsibility for business to take action to help ensure the safety of its employees.  While employee safety is paramount, businesses face several additional business and legal challenges as a result of the COVID-19 pandemic.  Some of the challenges that may be faced by businesses are outlined below, as well as measures that may be taken to address these challenges.
Gather Information and Stay Informed
Businesses should identify and follow authoritative sources of public health guidance on the COVID-19 pandemic in addition to officially recommended and mandated actions in their relevant jurisdictions.  Helpful resources include the Center for Disease Control and Prevention, The World Health Organization, and the Massachusetts Department of Public Health.

Businesses should utilize the above-named sources to serve as the basis for all organizational decisions relative to both health and legal-risk mitigation.  A decision made by a business relative to COVID-19 response that is in alignment with official recommendations from any of the above-named resources would be an important legal safeguard should a business’s infection-control methods be challenged.
Communicate with Employees
Businesses should be able to demonstrate that they have provided employees with accurate information on how to minimize the spread of COVID-19 for both legal and practical reasons.  Businesses may accomplish this by educating employees regarding COVID-19 symptoms, precautionary measures, and official sources of information that employees may rely on for current COVID-19 information.
Maintain a Sanitary and Disinfected Work Environment
Businesses should take reasonable precautions […]

Major Changes to Massachusetts Law on Non-Compete Agreements

Major Changes to Massachusetts Law on Non-Compete Agreements

Non-Compete Agreements are contracts entered into by both employer and employee regarding post-employment activities. The Agreement is used to limit an employee in their future employment options. These limitations may include whether you can leave your current position and immediately work in a competing field or by prohibiting you from taking other employees/customers with you when you leave, all for an agreed upon amount of time.

In October 2018, the newly enacted reform to the Massachusetts Non—Compete law took effect, extending wide benefits to those employees subject to a non-compete, while eliminating non-competes for certain types of employees. First, the law only affects those contracts that were entered into AFTER October 1, 2018 and only affects non-competition agreements and not other forms of restrictive covenants. Additionally, a non-compete that is in effect DURING employment is likewise not affected.

There were several major changes to the law which will affect both business and employees equally. The new law includes the elimination of non-competes for non-exempt hourly employees, thus establishing that qualified salaried employees are the only employees that may be subject to a non-compete. Additionally, a non-compete for a salaried employee cannot extend longer than one year (with a few exceptions) and will not be enforceable if the employee is terminated without cause or is laid off. A new employee must be presented with a non-compete agreement at least ten (10) days prior to their start date or when a formal offer is presented and must be signed by both the employer and employee and contain a clause providing the employee with the right to have counsel review. The last major change and perhaps the most substantial is the inclusion of a “garden leave” provision in […]

By |November 14th, 2019|Employment law|0 Comments|

Minimum Wage Increase/ Retail Sunday Pay

In addition to Paid Family and Medical Leave, the act signed by Governor Baker on June 28, 2018, the act also increases the minimum wage in Massachusetts and eliminates the Premium Pay for retail establishments on Sundays.

By the year 2023 the basic Massachusetts minimum wage will be $15.00 an hour and the tipped minimum wage will be $6.75 per hour, a dramatic increase from the current amounts of $11.00 an hour and $4.35 per hours. These amounts will not increase over night but will rather gradually increase beginning in January 2020.

January 1, 2020 = $12.75 per hour; $4.95 per hour (tipped);
January 1, 2021 = $13.50 per hour; $5.55 per hour (tipped);
January 1, 2022 = $14.25 per hour; $6.15 per hour (tipped); and
January 1, 2023 = $15.00 per hours; $6.75 per hour (tipped)

As a form of compromise for the increase in minimum wage and paid family medical leave, the act also will affect employees of retail establishments by gradually eliminating the “time and half” payment of wages on Sundays.

January 1, 2019 = 1.4 x the employee’s regular rate of pay;
January 1, 2020 = 1.3 times the employee’s regular rate of pay;
January 1, 2021 = 1.2 times the employee’s regular rate of pay;
January 1, 2022 = 1.1 times the employee’s regular rate of pay; and
January 1, 2023 = Employees regular rate of pay

The new changes to law will not affect an employee’s ability to refuse to work on Sundays as previously allowed. The prohibitions against discrimination and retaliation regarding an employee’s right to refuse to work on Sundays will remain in full force and effect.

Authored by Eric B. Langfield, Esq.

Paid Family and Medical Leave

On June 28, 2018, Massachusetts Governor Charlie Baker signed a new comprehensive law that will require that employees in Massachusetts receive paid family and medical leave. Previously, Massachusetts employees were only afforded unpaid leave for family and medical issues, usually stemming from either the MPLA, the Massachusetts Parental Leave Act (formerly the MMLA, Massachusetts Maternity Leave Act) or from the Federal FMLA, Family Medical Leave Act.

The new act will allow for employees to receive a portion of their pay for up to twelve (12) weeks of paid leave to care for an ill family member or for the birth (or adoption) of a child. The act will also allow for up to twenty (20) weeks of paid leave to care for their own serious medical issues. The benefit amount will be determined based upon a percentage of the employee’s weekly income, but will not exceed $850.00 per week.

While the law has been signed into law the formalities of the new act have yet to implemented. On March 31, 2019 the first set of proposed regulations will be published which will allow for more guidance on how the new law will affect employers. On or about July 1, 2019, the Commonwealth will begin collecting a new payroll tax of 0.63% to help pay for this very generous benefit. Employees will be able to utilize this new benefit beginning January 1, 2021.

In addition to creating paid family and medical leave, the act also places a strong retaliation provision for employers who unfairly retaliate against an employee for engaging in this new program.

By |April 24th, 2019|Employment law|0 Comments|

#MeToo Movement in Massachusetts

#MeToo Movement in Massachusetts
In October 2017 the nation was hit with a movement that was drastically overdue, the #MeToo movement. The movement was a viral sensation in which victims of sexual harassment came forward in droves to proclaim that they too have been victims, many of whom shared their stories in hopes that it would bring attention to sexual harassment and would likewise encourage others who have not reported their sexual harassment to come forward.

One of the most important aspects to the #MeToo movement is letting victims of sexual harassment to know that they are not alone. Too often victims feel as though they will be ostracized and retaliated against for coming forward. The #MeToo movement has brought this issue to the forefront of discrimination and has empowered victims to no longer remain silent.

In Massachusetts, M.G.L. c. 151B operates to make sexual harassment in the workplace unlawful. In general, there are two main areas of sexual harassment, Quid Pro Quo (this for that), and hostile work environment sexual harassment. Quid Pro Quo consists of a person with authority over another using that authority to force the victim into committing sexual acts that they otherwise would not have performed. For example, conditioning a raise or promotion upon the acceptance of sexual advances. Hostile work environment sexual harassment exists when unwanted comments, action and sexual advances exist and cause an interference with one’s ability to perform their job. Both are unlawful and can subject the perpetrators and their employers to various forms of damages.

If you believe that you have been a victim of unlawful sexual harassment it is important that you make a complaint right away. In addition to providing your employer with important information that […]

Non-Competition and Non-Solicitation Agreements

Non-Compete (or Non-Competition) Agreements and Non-Solicit (or Non-Solicitation) Agreements, are contracts entered into by an employee and employer regarding future activities once the employment relationship has ended. These Agreements will be used to limit your future employment for a set period of time, whether it be in a selected field that directly competes with your former employer or by prohibiting your ability to leave and take employees or customers with you.

Generally, these agreements are governed by the state in which the contract is entered into, unless the agreement specifically dictates another state (choice of law provision). Massachusetts currently possesses no general non-compete agreement laws. However, it can be said that Massachusetts courts generally disfavor non-compete agreements and will err on the side of caution in favor of employees when disputes arise due to the fact that employer has a stronger bargaining position when entering into an agreement and the courts do not want to deprive an employee’s ability to earn a living.

When deciding whether a non-compete or non-solicit agreement are enforceable, the courts will look to determine the extent that they are necessary to protect the employer’s legitimate interests while not interfering with ordinary competition and only if “reasonably limited in time and space, and consistent with public interest.” As such, a covenant not to compete and other restrictive covenants must not be more restrictive than necessary to achieve its purpose.

If you are asked to enter into a Non-Compete Agreement or other restrictive covenant before you enter into your employment relationship, it is often a wise investment to have this agreement reviewed by a trained professional so that you understand the agreement you are making and its potential impact on your future employment. Likewise, […]

By |November 2nd, 2018|Employment law|0 Comments|

Big Changes Ahead for Overtime Exempt Employees

Big Changes Ahead for Overtime Exempt (Salaried) Employees

The Fair Labor Standards Act (FLSA) was a revolutionary act established during the “New Deal” phase of President Franklin D. Roosevelt’s presidency. The act established, for the first time, minimum wage requirements, overtime laws and created the standard work week for all Americans. Over time additional requirements have been added creating the current federal standards for employment pay in the United States.

Most recently, President Obama directed the Department of Labor to update some of these regulations. Included in this directive was a request to increase the compensation for executive, administrative, and professional (“EAP”) employees, often called overtime exempt or salaried employees. Prior to this directive, the last increase to the minimum requirement for the base salary of these EAP employees occurred in 2004 and required that EAP employees be paid a minimum of $455.00 per week or $23,660.00 annually.

As one could imagine, this regulatory scheme was quite beneficial to employers, as those employees who satisfy the “duties test” (the test designed to indicate whether an employee constituted an executive, administrative, or professional employee) were exempt from being paid overtime for all hours worked in excess of forty (40) hours so long as they were provided with compensation equal to or greater than $23,660.00 annually. This is no longer the case however; as the Department of Labor’s new regulations will substantially increase this amount to more than double the current level.

The final rule promulgated by the Department of Labor calls for the following changes to the current FSLA:

1. Sets the new standard salary compensation at the 40th percentile of the salary of full-time employees in the lowest wage census region. Currently the lowest wage census region is the […]

Retaliated Against for Making an OSHA Complaint?

Retaliated Against for Making an OSHA Complaint?
Have you ever been placed in an uncomfortable position by your employer due to their unlawful safety practices? Perhaps you made a complaint to your supervisor, the owner of company, or Occupational Safety and Health Act (OSHA) office regarding these concerns. If your complaint contributed to, or was a motivating factor for your employer to take adverse employment actions against you, then you are protected from these retaliatory actions as you are deemed to be a “whistleblower.”

Common forms of retaliation include but are not limited: demotion; denying overtime or promotions; denying benefits; reduction in pay or hours; reassignment to a less desirable position; suspension; and termination. An employee has a very narrow window to submit a complaint for whistleblower retaliation (30 days) as such; if you have been subject to an adverse employment action by your employer it is important that you seek help and legal advice as soon as possible.

Filing a retaliation claim against an employer who retaliated against you for engaging in a protected activity is the first step to restoring your employment and being compensated for your lost wages. If you’re unsure of whether or not your complaint qualifies you for protection below is a list of the 10 most frequently cited workplace violations for 2015:

Fall Protection
Hazard Communication
Scaffolding
Respiratory Protection
Lockout/ Tagout
Powered Industrial Trucks
Ladders
Electrical – Wiring Methods
Machine Guarding;
Electrical – General Requirements

If you or someone you know has been a victim of retaliation for being a whistleblower, contact our office in Raynham, Quincy, or Plymouth, MA at (508) 880-6677 for a free consultation regarding your possible rights and remedies.

Authored by Attorney Eric Langfield, an associate at Cohen Cleary, […]

Should I sign a severance agreement?

Should I sign a severance agreement?
“All good things must come to an end”
Geoffrey Chaucer wrote that “all good things must come to an end.” Even the most harmonious employment relationships will reach an inevitable conclusion whether due to retirement, relocation, business decisions or a mutual agreement to part ways. In some of these situations the employer may offer an employee a severance agreement or package.

A severance agreement is a legally enforceable contract between an employee and an employer.  This agreement usually grants the employee certain benefits, whether it is pay for a specific period of time, the continuation of health benefits or other terms that can be negotiated. Employers, however, do not often give severance agreements out of the kindness of their hearts but rather do so to protect the employer from any claims that the employee may have against the employer. The agreement may also contain non-compete and/or non-solicitation provisions that can have a profound impact after the employment relationship has ended.

If you receive a severance offer, it is inadvisable to think that the employer is magnanimous and to sign the document without the legal guidance to ensure that you fully understand the terms and conditions contained within that document. A severance will often give the employee continued salary for a short specified period in exchange for the signing of a release that forever releases the employer from claims that may have occurred during the employee’s employment. The questions that often arise in these situations are whether the employer is offering a good deal? Is the severance adequate for the rights that the employee is giving up? What are the rights that the employee is giving up? What are the employee’s obligations after […]

By |February 22nd, 2016|Employment law|1 Comment|
Cohen Cleary, P.C.

Cohen Cleary, P.C.