Using Background Information in the Hiring Process
Employment Background Credit Checks As we discussed in our last article, it is not uncommon for employers to look into the background of applicants before deciding whether or not to extend an offer of employment. In addition to conducting criminal background checks, employers may also conduct credit checks and review school records. Below we have included some legal guidelines that employers and employees should be aware of when requesting and obtaining information about the credit history and school records of applicants. Credit Checks: In Massachusetts, a Consumer Reporting Agency may release applicant’s credit reports to employers. However, before requesting a credit report an employer must inform applicants in writing that a credit report will be requested. If information contained in the credit report is the reason for an applicant not to be hired the employer should provide the applicant with the following information: 1. The credit score used to make the adverse hiring decision. 2. Contact information for the Consumer Reporting Agency that issued the credit report. 3. Information about the applicant’s right to obtain one free copy of their credit report each calendar year. 4. Information about the applicant’s right to dispute any inaccurate information contained in the credit report. School Records: The Family Educational Rights & Privacy Act (FERPA) protects access to student records. Schools may disclose “directory information” such as names, basic contact information, and any awards the student may have received, but most student information is confidential. Employers may request that applicants provide a copy of their GPA, course history, or other school-related information, however, unless an employer has the applicant’s written consent they will not be able to access student records on their own. If you have specific questions about information that can be obtained or used in the hiring process, please contact an employment attorney for more information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Non-Compete Agreements – A New Era in Massachusetts
A new era for non-compete agreements in Massachusetts will begin on October 1, 2018. Non-compete agreements are defined as, “Agreement[s] between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended[.]” Massachusetts has long recognized and enforced non-compete agreements. In late July, the Massachusetts State Legislature passed a bill that changes the landscape of non-compete agreements in the private sector. While the new law continues to allow employers to utilize non-compete agreements, it will make the agreements more burdensome for employers to utilize. Under the new law, if an employer decides to use non-compete agreements, it must offer either: “Paid garden leave” for the length of the restricted period of employment; or “[O]ther mutually-agreed upon consideration.” Paid Garden Leave “Paid garden leave” amounts to at least 50% of the employee’s highest base salary during the two years prior to the employee’s resignation. For example, if an employee who signed a non-compete agreement after October 1, 2018 and who resigns from work made a highest base salary of $80,000 for the two years prior to leaving her position, the employer would be required to pay that employee $40,000 for the entire amount of time she is restricted from engaging in competing activities. Other Mutually-Agreed Upon Consideration The second option allows employers to provide something other than paid garden leave, so long as the consideration is agreed upon in the non-compete agreement. An example of this could be a lump sum payment made at the time the employee signs the non-compete agreement. Furthermore, the new law specifies that non-compete agreements must be reasonably tailored. Specifically, non-compete agreements (1) cannot contain a non-compete period that exceeds one year, (2) cannot be “broader than necessary” to protect specific business interests of the employer, including confidential information, trade secrets, etc., and (3) must be geographically reasonable in relation to the interests protected by the agreement. The law also addresses an employer’s obligations when it requests an employee to enter a non-compete agreement after employment has begun. Contrary to previous case law, continued employment is no longer considered sufficient consideration. The employer must provide “fair and reasonable” consideration in order for an agreement signed after employment has commenced to be enforceable. If you have questions about non-compete agreements or other employment related issues, please give us a call at (781) 930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Massachusetts Passes Law that Increases Workplace Protections for Pregnant Employees
On July 27, 2017, the Massachusetts legislature signed The Pregnant Workers Fairness Act (“PWFA”), which will take effect on April 1, 2018. The PWFA amends Massachusetts’ discrimination statute (MGL c. 151B) to prohibit employers who have six or more employees from discriminating against pregnant employees or employees experiencing a condition related to pregnancy. Prior to the PWFA, pregnancy was not considered a disability and pregnant employees were not a protected class in Massachusetts. Pregnancy related disabilities, such as pre-eclampsia or gestational diabetes, were treated the same as other disabilities and therefore triggered protections under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. However, conditions associated with pregnancy that did not rise to the level of a disability, such as shortness of breath or inability to lift a certain amount of weight, did not trigger legal protections. The broad language of the PWFA – “pregnancy or any condition related to the employee’s pregnancy” – means that employees who, for example, have shortness of breath, a sensitive stomach, back pain, or swollen feet, so long as it is related to their pregnancy, are arguably entitled to request and receive reasonable accommodations at work. The PWFA explicitly lists several reasonable accommodations that employers may have to provide, including but not limited to: Temporary transfer to a less strenuous or hazardous position Light duty Assistance with manual labor, or A modified work schedule. Because these accommodations are defined as “reasonable” within the PWFA, employers will be hard pressed to argue that providing these accommodations poses an undue hardship. Under the language of the PWFA, employers claiming undue hardship must show that the accommodation poses “significant difficulty or expense” to the employer. This long overdue law spells out in clear terms what employers are required to provide to pregnant employees or employees experiencing a condition related to pregnancy and hopefully will serve its purpose of normalizing pregnancy in the workplace. For more information, please contact us at 781-930-3127 Notice: JavaScript is required for this content.No Fields Found.
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Pregnant Women Are Protected from Discrimination at Work
In Massachusetts, pregnant women are considered members of a protected class under anti-discrimination laws. Because pregnancy is linked to sex, discrimination based on pregnancy is considered a form of sex discrimination in Massachusetts. This means that employers cannot refuse to hire, terminate or otherwise discriminate against an employee because of her pregnancy. Additionally, an employer cannot consider a woman’s pregnancy, or her need to take maternity leave, when making an employment decision. Pregnancy discrimination can take many forms. It may be that an employer treats a pregnant employee differently that non-pregnant employees, or engages in practices or institutes policies that only limit or impact pregnant employees and not others. A closer look at pregnancy discrimination In a recent case, Gonsalez v. Marin, a pregnant employee alleged that she was discriminated against as a result of her pregnancy. Under a disparate treatment approach to discrimination, the employee was able to successfully show that she was treated differently by her employer because of her pregnancy. The plaintiff in this case, Laura Vidals, was an employee at a piñata manufacturing factory. Six months after she began work there, Ms. Vidals became visibly pregnant, which was seen by her coworkers and employer. At this time, her employer significantly reduced the number of shifts Ms. Vidals was given per week. In order to prove that the reduction in shifts constituted pregnancy discrimination, Ms. Vidals was required to show that the change in her employment status was directly related to her pregnancy. In this case, Ms. Vidals was able to meet this burden based on several factors: Prior to her pregnancy, Ms. Vidals had not received any indication that her work product was poor; The shifts of other non-pregnant employees’ had not been reduced, A new full-time employee had been hired right when Ms. Vidals’ shifts were reduced; and The employer allegedly stated that he could not have a pregnant employee working in a factory because it would “cause problems.” Based on these facts, a judge was able to find that Ms. Vidals was, indeed, a victim of pregnancy discrimination. See Gonsalez v. Marin, Slip Op. (WestLaw 2514704), (E.D. NY 2014). If you are facing discrimination based upon pregnancy at work, please contact an employment attorney today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Massachusetts Maternity Leave Act
Although having a baby is an exciting time in many people’s lives, it is not uncommon for employees to struggle with how to tell an employer that they are expecting. Employees are often concerned with how they will be perceived if they ask for time off, and if their job will be waiting for them when they return. The Massachusetts Maternity Leave Act helps ease many of these fears by outlining employee’s rights when their families are growing. Under the Massachusetts Maternity Leave Act, eligible, full-time, female employees are entitled to up to 8 weeks of unpaid leave when they are giving birth or adopting a child. To be eligible, an employee must have completed the employer’s initial probationary period, or have worked for the employer for at least 3 consecutive months if no probationary period exists. The employer must also have 6 or more employees. How can you exercise your rights under the Massachusetts Maternity Act? An employee who is having a baby or adopting a child must give at least 2 weeks’ notice prior to the anticipated departure date and 2 weeks’ notice before returning to the workplace in order to be eligible. In addition to having the right to take up to 8 weeks leave, eligible employees also have the right to be restored to their previous position or be placed in a similar position to the one held prior to taking maternity leave. Similar positions are defined as those that have the same status, length of service credit, and seniority as the position the employer held prior to taking leave. Are Fathers Eligible for Paternity Leave under the Massachusetts Maternity Act? Although the Massachusetts Maternity Leave Act specifically states that eligible employees must be female, employers in Massachusetts have often been advised to extend leave under the MMLA to fathers as well. In fact, in June 2008, the Massachusetts Commission Against Discrimination released an official statement interpreting the Act to include fathers. To be eligible to take paternity leave a father must meet all of the eligibility requirements under the MMLA. If you have questions about maternity and paternity leave in Massachusetts, please contact an employment attorney. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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MA Court Upholds School’s Right to Fire a Teacher for “Joking” About Sex with a Student
Teacher Fired for Sexual Harassment In a decision which strengthens the ability of public school administrators to discipline teachers, the Massachusetts Supreme Judicial Court has upheld the right of a school superintendent to terminate a teacher for conduct which was described as “joking” with a student about sexual favors. The case also provides significant recognition for the rights of students to learn in an environment which is free from sexual harassment. This case involved a veteran and apparently well respected teacher who was approached by a female student who inquired, in front of her classmates, whether there was a way that she could “pay for a better grade.” A male student interjected, “You mean short of sexual favors?” The teacher did not admonish the student for the inappropriate comment but, instead, retorted, “Yes, that is the only thing that would be accepted.” After the students laughed, the teacher stated, “Don’t be ridiculous” and told the student that the only way that she could improve her grade was by doing better work. Two days later, the female student approached the teacher in his classroom seeking extra help. In response to another inquiry from the student whether she could “just pay for a better grade,” the teacher responded, “Well no . . . you know that the only thing that I would accept is a sexual favor.” The student and another student who was in the classroom both laughed and the discussion apparently ended. However, the student subsequently complained to her guidance counselor about the teacher’s comments. After an investigation, the school superintendent terminated the teacher’s employment on the basis that it constituted conduct unbecoming a teacher. The teacher exercised his right under the Massachusetts Education Reform Act to appeal his dismissal to an arbitrator. After an evidentiary hearing, the arbitrator found that although the teacher’s comments were intended as a joke, it created a hostile or offensive school environment for the student and, as such, rose to the level of sexual harassment. Nonetheless, the arbitrator ruled that the teacher’s conduct was a “relatively minor and isolated” violation of school policy and only “nominally” constituted conduct unbecoming a teacher. Considering the teacher’s positive record and “the best interests of the pupils in the District, the arbitrator reversed the Superintendent’s decision and reinstated him to his teaching position. After an unsuccessful appeal to the Superior Court, the District appealed the decision to the full Supreme Judicial Court. In a 6 – 1 decision, the SJC held that once an arbitrator finds that a teacher’s conduct rises to the level of “conduct unbecoming a teacher,” the arbitrator may not lessen or vacate the punishment imposed by the school superintendent. In so ruling, the SJC dismissed the notion that the teacher’s conduct was “minor” in nature, emphasizing the special trust placed in teachers and their obligation to provide an educational environment which is free from any form of sexual harassment. Most pointedly, the court stated that “[a] teacher who models sexually harassing behavior in front
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Family Medical Leave Act
Many employees face the challenge of balancing the demands of their job with the need to care for their family. The Family Medical Leave Act, or FMLA, was created in order to help employees who find themselves in this difficult position. The FMLA is a federal law that requires certain employers to allow their employees to take up to 12 weeks of unpaid leave over the course of a 12 month period for a serious medical condition or to care for a family member. Leave can be in the form of a full time absence, a reduced work schedule, or intermittent leave depending on the situation. Who Qualifies? Not every employee is eligible for extended leave under the FMLA. In order to qualify for this type of leave, you must: Have been working at your current place of employment for at least 12 months, and have worked at least 1,250 hours over that 12 month period; and Work for an employer who employs at least 50 employees within 75 miles of your worksite. Example: A company with two worksites located ten miles apart with a combined total of 50 employees would be required to grant eligible employees at those worksites leave under the FMLA, but a company with two worksites located 100 miles apart with a combined total of 50 employees would not. For What Purposes Can I Take Leave? Employees are only entitled to leave under the FMLA for certain reasons. Eligible employees are entitled to up to 12 workweeks of unpaid leave during a 12 month period for any of the following reasons: The birth of a child in order to care for him or her. The placement of a child in your home for adoption or foster care. Caring for a spouse, son, daughter, or parent with a serious health condition. A serious health condition of yours that renders you unable to perform your job. Any “qualifying exigency” resulting from the fact that a spouse, son, daughter, or parent is covered on active duty in the Armed Forces. There are many other provisions of the FMLA to consider if you are thinking about taking leave under this statute. For more information about FMLA leave, please consult an employment attorney. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Types of Sexual Harassment in the Workplace
Two Types of Sexual Harassment in the Workplace When considering the possibility of pursuing a sexual harassment claim against an employer, it is important to determine what type of claim you may have. Sexual harassment claims can take the form of quid pro quo or hostile work environment harassment. Below we describe and provide examples of these two types of sexual harassment claims. 1. Quid Pro Quo Sexual Harassment This occurs when a manager or another person who has authority over the terms and conditions of another employee’s work offers some sort of benefit in exchange for the employee’s submission to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Quid pro quo sexual harassment also occurs when a manager or another person who has authority over the terms and conditions of another employee’s work denies that employee some sort of benefit because the employee refused to respond to, or rejected, the sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Example: An employee received a raise after submitting to their supervisor’s request to dress in tight skirts while at work. Example: An employee’s shifts were reduced after refusing to submit to their manager’s request for a sexual favor. 2. Hostile Work Environment Sexual Harassment This occurs when a manager or another person who has authority over the terms and conditions of another employee’s work makes sexual advances, requests for sexual favors, or requests for other verbal or physical conduct of a sexual nature for the purpose of unreasonably interfering with the employee’s work performance by creating an intimidating, hostile, or sexually offensive work environment. Example: A supervisor continuously calls an employee a sexually-charged nickname in front of her coworkers, sends her daily emails complimenting her on her appearance, and strokes her arm whenever he is in close proximity to the employee, creating an intimidating, hostile, and sexually offensive work environment. If you have been subjected to sexual harassment or have questions about your right to be free from sexual harassment at work, please contact an employment lawyer at Sankey Law Offices today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Sexual Harassment in the Workplace
In Massachusetts, sexual harassment is recognized as a form of discrimination based on sex and is strictly prohibited in the workplace. Sexual harassment can take many forms and occur at varying levels of intensity. Instances of sexual harassment may range from an isolated incidents involving a single comment or joke, all the way to the pervasive occurrence of inappropriate physical contact, comments, and gestures. Contrary to popular belief, an employee need not be subject to an adverse employment action, such as a demotion or termination, to have a legally cognizable claim for sexual harassment. It is enough if the sexually harassing conduct interferes with the victim’s ability to do her job. Claims of sexual harassment may also arise when a supervisor’s or co-worker’s actions create a hostile work environment. It is important to note that sexual harassment claims are usually fact specific and often depend on the work environment and type of conduct involved. A remark or gesture that might be appropriate in one situation may be unlawful in another. For example, a gymnastics coach who guides a gymnast by the hips to assist her in jumping up to the uneven bars would likely not be engaging in sexual harassment, while a supervisor in an office building who grabbed an employee’s hips while she was using the copy machine would certainly be engaging in unlawful conduct. Similarly, a fashion designer who compliments a model on her outfit would probably not be engaging in sexual harassment, but a doctor who frequently comments on the physical appearance of his receptionist might be engaging in conduct that constitutes sexual harassment. As these examples illustrate, the context of the situation and the type of conduct involved often determines whether sexual harassment has occurred in the workplace. Our attorneys have extensive experience advocating on behalf of individuals who have faced sexual harassment in the workplace. If you are concerned that you are experiencing sexual harassment at work, or would like more information about the laws governing sexual harassment, please contact an experienced sexual harassment attorney at Sankey Law Offices today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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When an Employee Cannot Be Fired: Exceptions to the At-Will Employment Rule
As we discussed in a previous blog post, most jobs in Massachusetts are categorized as at-will employment. This general rule means that employers or employees may terminate their relationship for any cause, or no cause at all, however there are several exceptions to the general rule. Below are some exceptions to the at-will employment rule: 1. Federal or State Statute A federal or state statute may prevent an employer from terminating the employment relationship in specific circumstances. For example, under both federal and Massachusetts law, employers may not terminate an employee that is a member of a protected category for a discriminatory reason (e.g. race, religion, gender, sexual orientation, age, etc.). This means that an employee cannot be fired because of her race, religion, or gender, to name a few protected categories. However, just because an individual is a member of a protected category does not make any termination legally actionable. The employee must have been fired specifically for a discriminatory reason. Massachusetts’s law also forbids employers from terminating an employee out of retaliation after that employee made a complaint to an outside agency regarding discrimination or illegal conduct in some situations. 2. Implied Covenant of Good Faith & Fair Dealing Every contract in Massachusetts includes an implied covenant of good faith and fair dealing. This essentially means that no party to a contract should intentionally act in a manner that would harm another party’s ability reap the benefits of the contract. A common example of a breach of this covenant occurs when an employer terminates an employee just before the employee was set to receive a bonus, to avoid payment of the bonus. 3. Public Policy In order to establish an exception to at-will employment based on this exception, there must have been a violation of a clearly established public policy. The three recognized categories of clearly established public policies include: a. Termination for asserting a legally guaranteed right (e.g. voting). b. Termination for doing what the law requires of them (e.g. jury duty, reporting suspected child abuse in positions that require mandatory reporting). c. Termination for refusing to do what the law forbids them to do (e.g. helping the employer commit fraud). In addition to these three well-established exceptions, there have been circumstances where a court has found that termination for voluntarily assisting with a government investigation also falls under the public policy exception. While it may seem clear that an exception to the general at-will employment rule is present in some cases (especially where there is a violation of a federal or state statute), a fact-specific inquiry is often needed to determine whether or not an employee’s specific circumstances falls within an established exception. If you have questions about employment law or the end of your employment relationship, please contact a lawyer in our office today at (781) 930-3127. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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