As detailed in a prior post, since the end of May 2021, employers have been required to make paid leave time available to Massachusetts employees for COVID-19 related illnesses, quarantines and vaccinations. The state also established a fund to reimburse employers under certain circumstances. The law initially expired as of September 30, 2021 or when the funds ran out.

As of September 29, 2021, the law has been amended to extend the duration of the program until April 1, 2022 (or until the funds run out), and to expand the reasons employees may take leave under the law. All of the original reasons still apply. In addition, as of October 1, 2021, employers are required to allow employees to use Massachusetts COVID-19 sick leave to care for a family member who needs to obtain or recover from a COVID-19 immunization.

More information from the state is available here.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to leave law requirements. Contact Doorways for a consultation.

On May 28, 2021, Governor Baker signed legislation providing every full-time employee up to 40 hours of job-protected, emergency paid sick leave (pro-rated for part-time employees) for certain COVID-19 related reasons, including to obtain the COVID-19 vaccine or to recover from symptoms arising from the vaccine. The law also creates a fund to reimburse eligible employers for providing their employees with this paid leave, unless they are eligible to receive tax credits from the federal government. The state mandate continues until September 30, 2021, or until the fund is exhausted.

Eligible Reasons for Leave All Massachusetts employers, regardless of size, are required to provide the state-mandated paid leave to employees who are unable to work for the following reasons:

1. an employee's need to:

a. self-isolate and care for themselves because they have been diagnosed with COVID-19;

b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or

c. get or recover from a COVID-19 immunization;

2. an employee’s need to care for a family member who:

a. must self-isolate due to a COVID-19 diagnosis; or

b. needs medical diagnosis, care, or treatment for COVID-19 symptoms;

3. a quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;

4. an employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or

5. an employee’s inability to telework due to COVID-19 symptoms.

Leave Amounts The amount of COVID-19 paid leave available to employees depends on their work schedule. An employee who works 40 hours or more per week is eligible for up to 40 hours of COVID-19 paid sick leave. An employee who works less than 40 hours a week, but maintains a regular schedule with consistent hours per week, must be provided leave that is equal to the number of hours that the employee works per week on average over a 14-day period working a regular schedule. For an employee whose schedule and weekly hours worked vary from week to week, the employee must be provided leave that: (A) is equal to the average number of hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which the employee takes the COVID-19 emergency paid sick leave, including hours for which the employee took leave of any type; or (B) if the employee did not work over this 6-month period, is equal to the reasonable expectation of the employee at the time of hiring of the average number of hours per week that the employee would normally be scheduled to work.

Employers may provide additional leave under their own policies but cannot seek reimbursement from the state COVID-19 Emergency Paid Sick Leave Fund for more than $850 per week for that employee’s absence. Again, if the leave is eligible for federal tax credits, the employer may not receive reimbursement through the state. Any employer with a separate COVID-19 sick leave policy that meets the leave requirements under the state mandate need not provide the additional 40 hours of state mandated COVID-19 paid leave. Employee Notice of the Need for Leave An employee is required to provide notice of the need for COVID-19 leave as soon as practicable or foreseeable. After the first workday an employee receives COVID-19 emergency paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving COVID-19 paid leave.

An employee may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments. An employer may not require, as a condition of an employee’s taking COVID-19 paid leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using COVID-19 paid leave.

Mandatory Employer Notices The state has issued model employer notices as well as set up a website with more information about the law. At the bottom of the website, under "Additional Resources" are a variety of notices. There is a poster format or a document format of the model notice in English, and a document format of the model notice is also available in several other languages.

Under the law, employers must display either the poster or document format of the model notice at a conspicuous location within the workplace and provide a copy to their employees, or, in cases where the employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be sent via electronic communication or a conspicuous posting in the web-based platform.

Interaction with Other Types of Leave The new state-mandated COVID-19 paid leave is, subject to the qualifications below, in addition to all job-protected paid and unpaid time off the employer is required to provide to employees under the Massachusetts Earned Sick Time Law, any existing employer policy or program, collective bargaining agreement, or federal law, to the extent permitted by that federal law. While the new state mandate requires the leave to be provided under its terms, if the leave is eligible for tax credits by the federal government, the employer may only receive federal tax credits; it may not double-dip and receive reimbursement and tax credits by both the state and federal government. Under the law, an employee cannot receive more than 100% of his or her regular weekly wages. In addition, if applicable, the COVID-19 emergency paid sick leave benefit may be reduced by wages or wage replacement received from any government program such as unemployment benefits. Employees who use the state-mandated COVID-19 paid leave must maintain all benefits to which they are entitled, including health insurance, vacation leave, sick leave, disability insurance, and pension. In addition, an employer may not require an employee to use other paid leave before using the state-mandated COVID-19 paid leave, unless federal law requires otherwise.

Request for Reimbursement by the State The state will reimburse an employer for qualifying paid leave except where such wages are eligible for a federal tax credit. To be eligible for reimbursement by the state, employers must require written requests from any employee seeking COVID-19 paid leave that includes:

• the employee’s name;

• the date(s) for which leave is requested and taken;

• a statement of the COVID-19 related reason the employee is requesting leave and written support for the reason; and

• a statement that the employee is unable to work, including by means of telework, for the given reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

• the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and

• if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

Payment will be issued to the employer within 30 business days of submitting the application. Non-Retaliation Provisions The state law also includes anti-retaliation provisions. Employers may not:

1. interfere with, restrain, or deny an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, by using an employee’s taking of COVID19 emergency paid sick leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;

2. discipline or take any other adverse action against an employee for using COVID-19 emergency paid sick leave; or

3. take any adverse action against an employee because the employee opposes practices believed to be in violation of this program, or because the employee supports the exercise of rights of another employee, including, but not limited to:

   1. filing an action, or instituting or causing to be instituted any proceeding;

   2. providing or intending to provide any information regarding any inquiry or proceeding; or

   3. testifying or intending to testify in any inquiry or proceeding.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to leave law requirements. Contact Doorways for a consultation.

As of January 2021, many workers in Massachusetts will be eligible to apply for paid family leave benefits and/or paid medical leave benefits under the new state Paid Family and Medical Leave (PFML) program. Funding for the program began in October 2019 by premiums paid by employees, employers and the self-employed. The program is managed through the state Department of Family and Medical Leave.

PFML benefits available as of January 1, 2021 include:

• Covered individuals may be entitled to up to 20 weeks of paid medical leave in a benefit year if they have a serious health condition that incapacitates them from work.

• Covered individuals may be entitled to up to 12 weeks of paid family leave in a benefit year related to the birth, adoption, or foster care placement of a child, or because of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces.

• Covered individuals may be entitled to up to 26 weeks of paid family leave in a benefit year to care for a family member who is a covered service member with a serious health condition.

Paid family leave benefits to care for a family member with a serious health condition will become available on July 1, 2021.

What is the benefit amount?

The program provides partial wage replacement based on a rather complicated formula that takes into account the worker's average weekly wage and the statewide average weekly wage. The Department of Family and Medical Leave will determine the amount based on information gathered from the employer. The total weekly benefit is capped at $850.00, and adjusted annually on January 1 based on the state’s average weekly wage. The benefit amount is pro-rated for workers taking leave on a part-time basis.

How does an employee have to notify an employer?

When leave is foreseeable, the employee must give the employer 30 days notice. If that is not possible, the employee must give the employer as much notice as is practicable. In general, the employee must also provide the employer with a certification from a health care provider, a birth certificate, or a certification from an adoption or foster care agency, as required by the circumstances of the leave.

No retaliation

It is unlawful for an employer to discriminate or retaliate against a covered individual for exercising any right under the PFML law.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to Massachusetts Paid Family and Medical Leave. Contact Doorways for a PFML consultation.

Is your Massachusetts employer showing you the door while providing you with a severance agreement to consider?

It is advisable to go over it with an employment lawyer so that she can review the implications of each provision with you, as well as identify what is there and what also might not be there.

Below are eight things to consider when thinking about signing a separation agreement and release of all claims. Note that this cannot, and is not intended to, replace legal advice specific to your situation.

1. Payment – Is the payment reasonable in light of any claims you may be releasing, the amount you made, the circumstances under which you are leaving, and how long you worked there? When is it paid? How is it paid? How will paystub(s) be provided? Does it include all earned vacation time? How is it taxed?

2. Release of all claims -- Employers will generally include provision(s) requiring employees to release their right to pursue claims against the employer for all sorts of employment law violations, including employment discrimination, wage and hour violations, leave law violations, whistleblowing and/or retaliation. Depending upon what happened at work, this could have serious implications. It's worth talking to an employment lawyer specifically to determine if you have any claims, particularly before you sign away your right to pursue a claim.

3. Health insurance -- Did your employer provide your health insurance? Is it continued under the agreement? For what period of time? Is the premium subsidized over the same period? What does it include -- Medical? Dental?

4. Noncompete or nonsolicit -- Have you already signed a noncompetition or nonsolicitation agreement over the course of your employment with this employer? What effect will the severance agreement have on the obligations? Or, does the separation agreement provide for new noncompete or nonsolicit obligations instead? How will these affect your future employment prospects?

5. Employment references -- Does the agreement specify what happens if and when a prospective employer contacts this employer? Similarly, does the agreement include a nondisparagement clause, where the employer agrees not to disparage the employee?

6. Confidentiality clause -- Does the agreement include a clause that makes the terms of the agreement and/or all circumstances relating to it confidential? Should there be?

7. Unemployment eligibility -- Is there a consensus between the employer and employee as to how the employee's separation from employment came about? If there is not and unemployment benefits are meaningful to the employee, it should be a part of the severance agreement negotiation.

8. Return of property -- Does the employee still have property on the employer's premises, or does the employee still have the employer's property? The agreement should contemplate the disposition of all property.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including with respect to severance agreements. Contact Doorways Employment Law for an employment law consultation.

Generally speaking, current and former employees of Massachusetts employers have a right to request a copy of their personnel file. In order for the request to fit within the scope of the Massachusetts Personnel Records Law, however, it needs to be done in writing. Email is sufficient.

There are many different types of employers, so it is impossible to speak generally as to whom the request should be directed. That said, sending it to the highest person the employee knows and/or has contact information for in a Human Resources department can be effective.

There are no magic words required for the request. Something as simple as the following is sufficient:

Dear [INSERT NAME]:

It is my understanding that in Massachusetts an employee is entitled to receive a copy of his personnel file upon request within five business days under M.G.L. c. 149, s. 52C. Please send me a copy of my personnel file either by mail to [INSERT ADDRESS] or to this email address as soon as possible. Thank you.

Sincerely,

[EMPLOYEE NAME]

As noted, to the extent an employer receives a written request, it must give a copy of the file to the employee within five business days.

What does the law consider a personnel file -- or "personnel record," the term the statute uses -- to include?

The definition is broad: "a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action." Note that this information may go beyond records maintained in a file by Human Resources and may include documents maintained by individual supervisors to the extent they are used, as mentioned, to determine the employee's qualification for employment, promotion, transfer, additional compensation or disciplinary action.

Notably, a personnel file does not include information of a personal nature about a person other than the employee "if disclosure of the information would constitute a clearly unwarranted invasion of such other person's privacy."

As to employers of twenty or more employees, to the extent the document exists, the personnel file includes:

• the employee's name, address, date of birth, job title and description;

• the employee's rate of pay and any other compensation paid to the employee;

• the employee's starting date of employment;

• the job application of the employee;

• resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee;

• all employee performance evaluations, including but not limited to, employee evaluation documents;

• written warnings of substandard performance;

• lists of probationary periods;

• waivers signed by the employee;

• copies of dated termination notices;

• any other documents relating to disciplinary action regarding the employee.

If an employee disagrees with information contained in a personnel file, including an evaluation or written warning, he or she may seek removal or correction of the information with the employer. If the employer does not agree, the employee may submit a written statement explaining the employee's position, which must be maintained as part of the employee's personnel file.

If an employee has requested but has not received his or her personnel file, he or she may file a complaint with the Massachusetts Attorney General's Office.

There are certain exceptions to the above. Please contact Doorways to discuss your particular circumstances.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts. Contact Doorways for a consultation.

Massachusetts has announced a four-phased approach to reopening the economy amidst the COVID-19 / Coronavirus pandemic.

The state has also published Mandatory Workplace Safety Standards. The new standards will be required across the board to all reopening workplaces, with the goal of reducing the risk of COVID-19 transmission to employees and customers. The new Workplace Safety Standards are as follows.

For social distancing:

• All persons, including employees, customers, and vendors should remain at least six feet apart to the greatest extent possible, both inside and outside workplaces

• Establish protocols to ensure that employees can practice adequate social distancing

• Provide signage for safe social distancing

• Require face coverings or masks for all employees

For hygiene:

• Provide hand washing capabilities throughout the workplace

• Ensure frequent hand washing by employees and adequate supplies to do so

• Provide regular sanitization of high touch areas, such as workstations, equipment, screens, doorknobs, restrooms throughout work site

For staffing and operations:

• Provide training for employees regarding the social distancing and hygiene protocols

• Employees who are displaying COVID19-like symptoms do not report to work

• Establish a plan for employees getting ill from COVID-19 at work, and a return-to-work plan

For cleaning and disinfecting:

• Establish and maintain cleaning protocols specific to the business

• When an active employee is diagnosed with COVID-19, cleaning and disinfecting must be performed

• Disinfection of all common surfaces must take place at intervals appropriate to said workplace

Mandatory sector-specific safety protocols and best practices will also be announced as each sector is eligible to reopen.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to COVID-19 and the Coronavirus. Contact Doorways.

The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020.

There are primarily two provisions relevant to workplaces: the Emergency Family and Medical Leave Expansion Act (Emergency FMLA) and the Emergency Paid Sick Leave Act.

The Emergency Family and Medical Leave Expansion Act (Emergency FMLA)

Previously, to be eligible for the Family and Medical Leave Act (FMLA), among other things, an employee must have worked at a location that has 50 employees within a 75-mile radius. This left out a lot of employees from coverage.

This new emergency provision responding to COVID-19 changes the eligibility criteria based on employer size. It applies to employers with fewer than 500 employees, and to employees who have been employed for at least 30 days. This Emergency FMLA expires on Dec. 31, 2020.

The Emergency FMLA Act provides up to 12 weeks of leave off of work because of an emergency due to COVID-19 declared by a federal, state or local authority where an employee is unable to work (or telework) due to a need to care for the employee's son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to a public health emergency.

The first 10 days of leave are unpaid under the Act, although new Emergency Paid Sick Leave discussed further below might apply. An employee also has the right to use any applicable accrued vacation, personal or sick/medical leave over this period.

If leave for a qualifying need continues beyond 10 days, it must be paid at a rate of at least two-thirds of the employee's regular rate of pay and based on the number of hours the employee normally would have been scheduled to work. For employees with varying work hours, a special formula has been created to determine the appropriate rate.

In all cases, Emergency FMLA leave may be capped at $200 per day and $10,000 in the aggregate. Subject to Treasury Department regulations, all Emergency FMLA Leave wages (up to the capped amounts) may be reimbursed via payroll tax credits.

Employees are required to provide notice of the need for Emergency FMLA as soon as practicable when the need for leave is foreseeable. Generally, employers with 25 or more employees must restore employees to their positions following their return from Emergency FMLA Leave on the same terms as typically mandated by the FMLA. Employers with less than 25 employees also must reinstate employees, unless certain conditions are met. The law allows the U.S. Department of Labor (USDOL) to issue regulations 1) excluding certain healthcare providers and emergency responders from being eligible for emergency FMLA, and 2) to exempt businesses with fewer than 50 employees from having to provide Emergency FMLA if doing so would jeopardize the viability of the business.

Emergency Paid Sick Leave Act

In addition to Emergency FMLA, the FFCRA also provides for paid Emergency Paid Sick Leave in the case of certain absences related to COVID-19. Again, this provision applies to employers with fewer than 500 employees.

The Act requires qualifying private employers to provide paid sick time to employees to the extent that the employee is unable to work (or telework) because:

A. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

B. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

C. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

D. The employee is caring for an individual who is either (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

E. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;

F. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from Emergency Paid Sick Leave.

Full-time employees are entitled to 80 hours of Emergency Paid Sick Leave, and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. The full allotment of paid sick time provided for by the Act must be available for immediate use by an employee, regardless of how long the employee has been employed by the employer.

Emergency Paid Sick Leave must be paid at the higher of (1) the employee’s regular rate of pay, or the (2) federal or state minimum wage. If time off is taken under categories D, E, and F above, employees must be compensated at two-thirds of their rate. There is a cap on the amount an employer is required to pay to employees receiving Emergency Paid Sick Leave, which differs depending on whether the employee is receiving full or two-thirds wages. There is a cap of $511 per day and an aggregate limit of $5,110 for those receiving full wages (categories A, B, and C above). For categories D, E, and F (where the employee would be paid at a two-thirds rate), there is a $200 cap per day, and $2,000 in the aggregate.

Emergency Paid Sick Leave does not carry over from one year to the next, and any Emergency Paid Sick Leave not used at the time of an employee’s separation of employment does not need to be paid out to the employee.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses Emergency Paid Sick Leave under the Act.

An employer may not require, as a condition of providing paid Emergency Paid Sick Leave under the Act, that the employee search for or find a replacement employee to cover the hours during which the employee is using Emergency Paid Sick Leave.

Employers may require employees to follow reasonable notice procedures to continue to receive Emergency Paid Sick Leave after the first workday (or portion thereof) an employee receives paid sick time.

Employers who fail to provide Emergency Paid Sick Leave or who terminate or discriminate against an employee who takes Emergency Paid Sick Leave or has taken action to enforce his or her rights under the Act will be considered in violation of the Fair Labor Standards Act and subject to the FLSA’s penalties, including payment of back pay, liquidated damages and attorneys’ fees.

Similar to Emergency FMLA, the Emergency Paid Sick Leave requirement expires on December 31, 2020. In addition, subject to the conditions of Treasury Department regulations, all Emergency Paid Sick Leave wages (up to the capped amounts) may be reimbursed via payroll tax credits.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to COVID-19 and the Coronavirus. Contact Doorways.

Employees often come to me with a proposed severance agreement and general release they received from their employers. These documents can be called a number of things, including a separation agreement, and can take a number of different forms, such as a letter. Typically, they are given to an employee to consider upon termination.

Because the employer wrote it, the employer has sought to protect its interest in its draft. And, sometimes, the employer's interest is in direct opposition to the employee's interest. Because the employee also has her own interests to protect and advance, it is worthwhile that she review the proposed agreement with her own employment lawyer.

The following are three provisions commonly addressed in an employer's proposed severance agreement.

1. Severance pay

The employer has typically put some money on the table in exchange for a general release of all claims. Whether that amount realistically can be negotiated upward usually turns on the strengths and weaknesses of any claims the employee has as well as the interest the employer has in settling the matter.

An employment lawyer can conduct an assessment of the strengths and weaknesses of an employee's claims through discussion with the employee, a review of relevant documents, and sometimes, legal research. Because employment matters are very fact intensive -- potentially bringing in different players and varying incidents across time -- it can require some time to get into the weeds of what actually happened to bring about the separation of employment.

2. Nondisparagement

An employer will typically include a very broadly worded provision such that the employee "will not make any disparaging remarks of any sort or otherwise communicate any disparaging comments" about the employer, the employer's managers, etc., etc., etc. One of the problems with a provision like this is the enormous breadth of it as well as that there is no definition of "disparage." If an employee agrees to this, a casual remark by the employee such as "that place sucks" or "he's incompetent" about a former boss just may run afoul of it.

At the same time, an employee usually has an interest in not being disparaged by her former employer also. She does not want to be the subject of demeaning remarks by a former manager after she leaves, for example. Moreover, she wants to protect her reputation and future employment prospects by controlling what the employer can say on a reference call with a prospective employer. It is therefore important to negotiate the nondisparagement provision.

3. Confidentiality

An employer will typically provide a confidentiality provision in a proposed severance agreement that forbids the employee from discussing the terms and existence of the agreement. They don't want the employee to talk about the payment or anything else related to the settlement. They might be concerned that if word got out, it could encourage other employees to take action.

Some employees are just fine with keeping the agreement confidential; in fact, many prefer it. That said, they also do not want their employer or former managers to be discussing the terms of their separation either, and this may need to be added to the agreement.

Other employees, however, want to be able to talk about what happened. They feel wronged and don't want to be silenced. To the extent this is the case and the employer has included a confidentiality provision, it would require some negotiation.

The above are not the only provisions to negotiate in a proposed separation agreement, of course -- just some common ones.

Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to individuals across Massachusetts, including with respect to severance agreements. Contact Doorways for a consultation.

I wanted to touch briefly on those employment policies sometimes found in employee handbooks that ban employees from discussing their pay with each other.

The purpose of the policies is often to keep employees in the dark about what others are paid so as to, among other things, not allow resentment to creep in.

A downside to these policies, however, is that to the extent there is discrimination at play in the workplace and it is manifested in unequal pay, it can persist if employees are not allowed to talk about their pay. (For this reason, among others, each year the government of Finland publishes the pay of all residents.)

While these policies have been legally concerning in the U.S. under the National Labor Relations Act, here in Massachusetts, as part of the Equal Pay Act that went into effect on July 1, 2018, the legislature explicitly banned salary confidentiality policies. The law makes it illegal for an employer to “require, as a condition of employment, that an employee refrain from inquiring about, discussing or disclosing information about either the employee's own wages, or about any other employee's wages.” M.G.L. c. 149, § 105A(c)(1).

Now, nothing in the law requires an employee to answer their coworker's informal questions about what they make. The law simply says that employers may not prohibit employees from disclosing or discussing their wages to the extent they want to do that.

The law also allows an employer to prohibit human resources employees, supervisors, or other employees whose job responsibilities give them access to other employees’ compensation information from discussing such other employees’ wages, unless the information qualifies as a “public record” under M.G.L. c. 4, § 7.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on equal pay matters. Contact Doorway Employment Law for an employment law consultation.

The legislature passed a bill last week, which, if the Governor signs, will provide for some big changes to the legal landscape governing non-competes in Massachusetts.

Despite signing 53 other bills yesterday, however, Governor Baker still has not signed the noncompete bill.

Here, I will set out a brief overview of some of the biggest changes this bill would provide. I'm not going to go into too much detail, however, given that we don't yet know what the Governor intends to do with it.

To begin, if passed, the bill would make noncompetes unenforceable against a few different groups of workers. This means that even if the agreement exists on paper, no Massachusetts court will enforce it as to:

1. Nonexempt employees -- These are employees who are classified under the federal wage and hour law as nonexempt and generally must be paid hourly. The purpose of this exemption presumably was to get at the scourge of noncompetes increasingly being provided to hourly workers such as fast food employees.

2. Students -- This exemption would apply to graduate or undergraduate students enrolled in school full or part-time and who take an internship or other short-term employment with an employer.

3. Minors -- This exemption would apply to those 18 years old or younger.

4. Employees laid off or terminated without cause -- Currently, employees are often laid off or terminated without cause yet their employers insist on enforcing the noncompetes the employees signed at the start of employment. It puts an employee in a very difficult position -- on the market, yet unable to compete fully. If being laid off or terminated without cause eviscerates one's noncompete, that changes the game for a lot of employees.

That said, the fact that this provision exists may also change the game in how employers terminate. If employers now have no or little incentive to terminate for cause, if they wanted to enforce a noncompete yet still terminate an employee, then they would have incentive to find cause. This could have substantial implications, including in terms of an employee's ability to collect unemployment or explanation to a prospective employer as to why he or she was terminated. More on this if and when the bill is signed.

The other piece of the bill that is getting the most talk is around the requirement of some sort of payment over the noncompete period. Thus, if the employee is not in one of the above groups and there is an otherwise valid noncompete in place, if this bill becomes law, the employer must also provide some sort of payment for the noncompete.

The murky thing about this part of the bill, however, is that while on the one hand, the legislature spelled out what they intended the employer to provide -- 50% of the employee’s annualized base salary to be paid on a pro rata basis during the restricted period -- they also provided a rather large back door as an option when they included the rather vague language "or other mutually-agreed upon consideration between the employer and the employee."

In other words, the employer must pay the 50% salary -- called "garden leave" -- or "other mutually-agreed upon consideration." There is no definition of the latter, and it would be up to the employee and employer to hammer out on a case-by-case basis. While it would have been more preferable if the legislature simply included the 50% pay requirement, this provision nonetheless gives employees some bargaining power in negotiating for pay over the noncompete period.

In sum, these would be some of the biggest changes to the legal landscape if the current bill becomes law. We will see what the Governor does with the bill, and I will update the blog accordingly.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on noncompetition agreements, severance agreements and employment contracts. Contact Doorway Employment Law for an employment law consultation.

Following are a few reminders from the Massachusetts Appeals Court in an employment discrimination case, Scarlett v. City of Boston, out last week on how a case should be analyzed at summary judgment, particularly where the employer's reasons given for the termination are demonstrated to be false.

Summary judgment is a critical stage in any civil case. If a judge grants an employer's motion for summary judgment, it has the effect of dismissing those claims.

• "An employer seeking summary judgment in a discrimination case faces a high burden because 'the question of the employer's state of mind (discriminatory motive) is elusive and rarely is established by other than circumstantial evidence.'"

• "[E]vidence that a reduction in force has a disproportionate impact on members of a protected class sometimes may help establish a prima facie case of discrimination...."

• "[W]e are guided by the Supreme Judicial Court's admonition in Sullivan that the plaintiff's burden at this [initial] stage is 'meant to be a small showing that is easily made'... '[t]he fact that [an employer] retained all women nursing supervisors and discharged the only man is sufficient, by itself, to raise a reasonable inference that the hospital selected the man for discharge because of his sex.'"

• "Massachusetts is a pretext only jurisdiction....Thus, at this third stage, the employee need only present evidence from which a reasonable jury could infer that the rationales advanced by the employer at the second stage were not the real reasons for the adverse employment action...."

The above are just a few snippets of the opinion. They do not break new ground, but they do see a Massachusetts appellate court rearticulating what are some important frameworks in analyzing evidence in employment discrimination cases.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on severance/separation agreements. Contact Doorway Employment Law for an employment law consultation.

On May 25, 2018, the Boston Globe sued one of its former employees for breach of contract arising out of a dispute that began on Twitter, and as the Globe alleges, implicates a provision of the parties' 2016 severance agreement.

According to the complaint, in 2016, the employee separated from the Globe and received some severance pay in consideration for, among other things, an agreement "to cooperate with any reasonable request by the Company in connection with any matter with which [she was] involved or any existing or potential claim, investigation, administrative proceeding, lawsuit or other legal or business matter that arose during [her] employment with the Company."

How did this 2016 provision become an issue in 2018?

On May 20th and 21st, 2018 the employee posted a series of Tweets suggesting she had been the target of sexual harassment while an employee at the Globe. According to the complaint, the Globe allegedly reached out to her in the days following to ask for more information about her Tweets. She and her attorney allegedly refused to provide more information.

Within five days of her initial Tweet on this matter, the Globe sued her for breach of contract alleging that she was violating the above provision of her separation agreement that obligates her to cooperate with a Globe investigation arising out of her employment.

Yesterday, a Suffolk Superior judge heard arguments on the preliminary injunction request. Massachusetts Lawyers Weekly (MLW) covered the hearing, and suggested the Globe argued that reasonable cooperation under the severance agreement would include the employee "sitting for an interview and producing certain documents related to her allegations."

According to MLW, the judge pressed both parties on what the cognizable, compensable harm was as to each side. According to MLW, the Globe argued it needed to investigate "to get to the truth of the allegation and, if necessary, discipline" anyone involved still employed by the Globe for its own protection and the protection of its current employees.

The Globe further suggested its reputation was being harmed by a suggestion that it had not been “looking after its own house to the same degree” as it reports on incidents of sexual harassment elsewhere. The employee's lawyer also suggested her reputation was being damaged.

This story is still developing and, according to MLW, the judge may rule on the preliminary injunction request today. One takeaway from this story generally, however, is that these provisions in separation agreements can rear their heads later and must be attended to carefully when being drafted and negotiated.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on severance/separation agreements. Contact Doorway Employment Law for an employment law consultation.

I'm very interested in this concept of "emotional labor." It is when women, typically, are expected to take care of the people they work with -- whether it is emotionally or by doing the cleaning or organizing duties at the office that are not within their job descriptions. I see it come up with female clients, and I have certainly felt it numerous times myself in my past work life.

It is touched on somewhat obliquely in this recent New York Times Piece, Before #MeToo, There Was Catharine A. MacKinnon and Her Book ‘Sexual Harassment of Working Women.’ The focus of the piece, as evident from the title, is sexual harassment and #MeToo. But in discussing MacKinnon's 1979 book, the piece notes that she drew "on the observations of the sociologist Talcott Parsons, who noted that a woman in an 'occupational organization' was essentially a 'wife-mother,' tasked with ego-building, 'housekeeping (tidying up, answering the phone, getting coffee)' and performing the attendant role of 'sex object.'”

Now, this last piece -- women as sex object at work -- has been getting a lot of attention recently with #MeToo. That said, the previous two roles at work -- serving as wife-mother/ego-builder and housekeeper -- have not.

These expectations are out there though. And they strongly shape the experiences of women in the workplace, with important implications.

For example, this study set up male and female babysitters to ask for a raise. Each babysitter had a different level of emotional connection with the kid. Result? "The male babysitters presented without an emotional connection were the most likely to get the raise... In contrast, the female babysitter with an emotional connection to the child was the least likely to get the raise."

Got that? Male, no emotional connection -- more likely to get a raise. Female, with emotional connection -- least likely.

Not only that, but the female babysitter with an emotional connection to the kid also "had the lowest mean scores on the positive traits." In other words, "not only was she less likely to get the raise, but the fact [that] she had an emotional connection with the work led her to be seen more negatively." (Emphasis added.)

According to this study anyway, if you put in the emotional labor, you are more likely to be seen negatively and less likely to get a raise.

This gets to the double-bind nature of the issue. Women are expected to perform emotional labor at work, yet -- if the babysitter study is reliable -- when they perform it, they are more likely to seen negatively for it and are less likely to be given a raise.

Trying to extract oneself from the downsides of the double-bind is no doubt the reason, as the MacKinnon piece noted, Helen Gurley Brown, the legendary Cosmopolitan Editor, believed women should work within (collude with?) the patriarchy. She "encouraged young women to work hard, build careers and run companies, but to accomplish it all by coddling the men they worked with.... [Brown] delivered a playbook for the way young women should understand male bosses that included lessons in making them feel godlike."

Talk about emotional labor.

There is a Zen story that illustrates the double bind. A Zen master says to his pupils: "If you say this stick is real, I will beat you. If you say this stick is not real, I will beat you. If you say nothing, I will beat you."

Given the options presented, there appears to be no way of not getting beaten.

Then one pupil walked up to the teacher, took the stick, and broke it.

This is what needs to happen with regards to expectations of women, emotional labor, and work.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on sex discrimination and sexual harassment matters. Contact Doorway Employment Law for an employment law consultation.

In Ives Camargo's Case, issued today, the highest court in Massachusetts confirmed that there are varying statutory tests to determine employee verses independent contractor status for purposes of the workers' compensation, unemployment insurance, wage, and tax withholding laws:

Our laws have imposed differing, and not uniform, definitions of employees and independent contractors. Currently, there are at least four distinct methods used to determine employment status in the Commonwealth. General Laws c. 152, § 1, provides a definition of an employee for workers' compensation claims, and the department uses the MacTavish-Whitman factors to determine employment status. General Laws c. 149, § 148B, provides a three-prong test to define employment status under G. L. cc. 149 and 151. A third definition is provided in G. L. c. 151A, § 2, for the purpose of unemployment insurance, which uses a three-prong test that is similar to, but distinct from, the test in G. L. c. 149, § 148B. In particular, the second prong expands the definition of independent contractor from work performed outside "the usual course of business" to include work performed "outside of all the places of business." See Athol Daily News v. Board of Review of the Div. of Employment & Training, 439 Mass. 171, 176, 179 (2003) (board erred in awarding unemployment insurance to newspaper carriers by failing to consider importance of their making deliveries outside of business premises). Finally, a fourth definition of employee is provided in G. L. c. 62B, § 1, for the purposes of withholding taxes on wages, and the department of revenue applies the Internal Revenue Code's twenty-factor analysis to determine employment status. See Technical Information Release 05-11 (Sept. 13, 2005), Official MassTax Guide, at PSW-206 (Thomson Reuters 2018) (amendments to G. L. c. 149, § 148B, do not change statutory definition of "employee" found in G. L. c. 62B).

I spent a considerable amount of time while working at the Attorney General's Office enforcing -- and defending -- G. L. c. 149, § 148B, and the above was always my view.

What is most interesting to me about this decision is the several page concurrence at the end by several justices, including the Chief Justice, urging the Legislature to attend to the practical problems that arise because four different work-related statutes can result in different status determinations -- and consequent rights and benefits -- for the same worker. In other words, under the workers' compensation statute, one could legally be classified an independent contractor, whereas for purposes of the wage laws, the exact same worker must legally be classified as an employee. As the concurrence notes, this dissonance results in unnecessary misunderstandings by workers and increased difficulties to the state as to its enforcement.

The concurrence points to Maine as an example of a state that has "adopted a single, uniform standard for determining employment status under unemployment insurance, workers' compensation, and other employment laws" and to Illinois and New Hampshire as states that have "introduced measures designed to provide more guidance to workers as to their employment status."

Ultimately, the concurring justices note that the question is for the Legislature, but they pointedly suggest it is "a pressing one -- which [the Chief Justice] invite[s] the Legislature to address."

Perhaps we shall see some bills soon.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on wage and employment classification matters. Contact Doorway Employment Law for an employment law consultation.

This is a quick post about today's article in Bloomberg Law in which I'm quoted.

The article seems to have arisen from news that the Massachusetts Commission Against Discrimination (MCAD) has sought an increase in state funding as a result of the substantial increase in sexual harassment complaints since the Harvey Weinstein scandal broke.

I have written about the wave of the #MeToo movement here before, including that it seems to be re-establishing social norms as to what is considered acceptable behavior. To that end, it does not surprise me that sexual harassment filings at the MCAD are way up over the past several months.

In addition, the Bloomberg piece makes reference to another important topic I've written about here -- the caseloads of MCAD investigators and the length of time investigations take there. Around 2015, MCAD investigators had a caseload of approximately 199 cases each.

According to the Bloomberg piece, these days MCAD investigators are managing 110 cases each, with investigations lasting an average of 18 months. Those numbers represent an improvement -- even if, in comparison to the New York and Connecticut caseloads mentioned, there is still room for more.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on issues relating to sexual harassment and employment discrimination. Contact Doorways Employment Law for an employment law consultation.

When an employee is handed a proposed severance agreement from an employer, many of the provisions, including the confidentiality or nondisclosure provisions, will be drafted so that the employee is barred from speaking or acting, but the employer is not necessarily.

A typical confidentiality or nondisclosure provision drafted by an employer looks like the following:

"Employee agrees that the terms, amount and other facts concerning this Agreement shall be confidential. Employee agrees not to disclose any information relating to this Agreement to any third parties, including but not limited to the media or other current or past employees of Company. Employee may disclose information relating to this Agreement to Employee's spouse, accountants and attorneys, and to others if required by law, provided, however, that Employee must advise any such third party to whom disclosure is made that the information is confidential and that the party is not to repeat or disclose the information."

One piece of advocacy that employees' attorneys often do is to ensure that the confidentiality clause is made mutual. In other words, the employee agrees not to disclose the existence of the agreement and its underlying facts and the employer does, too. This can be important for those times when it is in the employee's interest for the agreement -- or the underlying fact that the employee hired a lawyer to take on her employer -- to remain confidential.

Employers generally are going to want a confidentiality clause as part of any agreement to settle a case. They generally do not want it to be known they settled a case. They do not want to appear to admit to any possibly illegal behavior. They do not want it known that they have paid money to end or offset litigation.

It is important for employees who sign a settlement agreement with a confidentiality provision in it, however, to thoroughly understand the meaning of the language and the potential ramifications of a breach. One case out of Florida provides a sad example of an employee's breach where, no doubt, the employee thought the disclosure was harmless.

The Third District Court of Appeal in Florida explained what happened:

When [employer] Gulliver did not renew [employee] Snay’s 2010-2011 contract as the school’s headmaster, Snay filed a two count complaint asserting causes of action for age discrimination and retaliation under the Florida Civil Rights Act. On November 3, 2011, the parties executed a general release and a settlement agreement for full and final settlement of Snay’s claims...

Central to this agreement was a detailed confidentiality provision, which provided that the existence and terms of the agreement between Snay and the school were to be kept strictly confidential and that should Snay or his wife breach the confidentiality provision, a portion of the settlement proceeds [ ] would be disgorged....

Within days of Snay signing the settlement agreement, his college-aged daughter posted on Facebook the following:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

The employer immediately notified Snay that he was in breach of the confidentiality clause in the agreement due to his daughter's Facebook post, and further, that it would not be paying the employee his payment due to the breach.

The employee went back to court and filed a motion to enforce the settlement agreement, arguing that the confidentiality clause had not been breached. The Snay family were deposed, and a hearing took place to determine whether there had been a breach. The trial court entered an order finding that neither Snay’s comments to his daughter nor his daughter’s Facebook comments constituted a breach of the confidentiality agreement.

The employer appealed, however, and the Florida appeals court reversed, concluding that the plain language of the agreement indicated that "neither Snay nor his wife would 'either directly or indirectly' disclose to anyone (other than their lawyers or other professionals) 'any information' regarding the existence or the terms of the parties’ agreement." That included the daughter. The court further concluded, "[t]he fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach."

As mentioned above, this is a sad case. The dad testified that the daughter had been:

an intricate part of what was happening. She was retaliated against at Gulliver. So she knew we were going to some sort of mediation. She was very concerned about it. Because of what happened at Gulliver, she had quite a few psychological scars which forced me to put her into therapy.... We understood the confidentiality. So we knew what the restrictions were, yet we needed to tell her something.

He no doubt thought the limited disclosure to his own daughter was justified and harmless. But it didn't end there. The daughter disclosed it to her 1,200 Facebook friends, and the employer in turn withheld the payment due to the breach and ultimately won in their position that the disclosure was a breach.

This serves as a cautionary tale. Even if you think disclosure to one person will be harmless, you never know what can happen with the information once it is out. You never know who they are going to tell -- or what they are going to post online.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on employment contracts, settlement agreements and severance agreements. Contact Doorway Employment Law for an employment law consultation.

I love this story.

Alex Cora, a native of Puerto Rico, was negotiating his managerial contract with the Boston Red Sox this past October, just as Puerto Rico was beginning its recovery from Hurricane Maria.

It seems that as part of Cora's personal employment contract, he negotiated a provision in which the Red Sox agreed to deliver medical supplies and other equipment to Puerto Rico to aid recovery efforts. That delivery is going down today, and Boston gets to look good as a result of its donations.

I have no inside information about Cora's employment contract. I only know what is in the news. But regardless of whether there was a formal provision in there requiring the delivery -- and, to the extent it was meaningful to him, there should have been -- this is a beautiful example of how creative thinking can come into play when it comes to entering into agreements with employers.

I generally do this type of work on behalf of employees when resolving litigation, and that sort of leverage is very different than that of a hot prospect negotiating his personal employment contract with an eager and wealthy employer. That said, a contract is a contract, and it all happens through negotiations. There can be benefits gained in these negotiations that are quite meaningful and go beyond dollars and cents. (Of course, the dollars and cents are important, too, and I have no doubt Cora did just fine in that department.)

But for the creative provisions, it just takes some creative thinking and a willingness to put in on the table.

Cora's is a beautiful example.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on employment contracts, settlement agreements and severance agreements. Contact Doorway Employment Law for an employment law consultation.