Hot Topics in Employment Law
http://www.WomensJournals.com/articles/401/1/Hot-Topics-in-Employment-Law/Page1.html
Martha Awiszus, Esquire
This article is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney to address your situation. By Martha Awiszus, Esquire
Published on 08/19/2009
The Wage Act has been the subject of numerous lawsuits due to the economic downturn, as separated employees have increasingly looked to the Courts to resolve wage issues with their former employers.
Hot Topics in Employment Law
I want to take this opportunity to discuss recent developments in employment law that are of interest to business owners and workers.
Wage Act
The Wage Act has been the subject of numerous lawsuits due to the economic downturn, as separated employees have increasingly looked to the Courts to resolve wage issues with their former employers.
In 2008, the Legislature amended the Wage Act to make Massachusetts the first state in the country to allow judges to impose automatic triple damages against an employer who is found to have violated the Wage Act. Under the new law, employees do not have to show that the employer intended to violate the Act.
Business owners must generally pay former employees for their earned but unused vacation days upon discharge from employment. The unused vacation benefit is considered earned wages under the Wage Act, even if the employer has a policy that states otherwise.
While there are some circumstances where an earned commission is considered wages under the Wage Act, the manner by which the commission is earned must be carefully reviewed in advance with counsel to determine whether the commission is considered wages under the Wage Act.
Discrimination in Employment
Employers with six or more employees are prohibited from discriminating against employees on the basis of gender, age, race, religion, national origin, sexual orientation, handicap status, genetic information, or military service or membership, in all aspects of the employment relationship, including hiring, compensation terms, and discharge. Employees are also protected against sexual harassment in the workplace. An employer is generally liable for sexual harassment of its employees by managers, regardless of whether the employer is aware of this conduct.
It is illegal for an employer to retaliate against an employee who opposes illegal employment practices or files a claim with the Massachusetts Commission Against Discrimination ("MCAD"). An employee is required to file a claim with the MCAD within 300 days of the discriminatory event.
Since discrimination claims are factually specific and have short statutes of limitations, counsel should be consulted in advance to determine whether you have valid legal claims or defenses.
Employee or Independent Contractor
The Massachusetts Independent Contractor Law was amended so that, effective July 13, 2008, all working relationships are presumed to be employer-employee. The law establishes a three-prong test. If the employer cannot prove any one of the three prongs, then the worker must be classified as an employee under the State’s worker’s compensation and wage laws.
The employer must show that:
(1) the worker is free from the employer’s control and direction in performing the service; and
(2) the worker’s job or service is performed outside the employer’s usual course of business; and
(3) the worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service being performed.
The determination of each of these prongs is fact based and should be addressed with counsel in advance, to ensure that employees are properly classified. If you misclassify a worker as an independent contractor, then you have not only violated the Independent Contractor Law, but you may also have violated the Wage Act; the Minimum Wage Law; the Overtime Law; the Worker’s Compensation law and the law requiring employers to pay withholding taxes on employee wages. These violations can result in stiff penalties.
It is important for the business owner to review your workers' status with counsel to determine whether workers are properly classified to avoid liability under these laws. Workers should also be aware of their rights under the law so they know they have options if they are not treated properly.
Wage Act
The Wage Act has been the subject of numerous lawsuits due to the economic downturn, as separated employees have increasingly looked to the Courts to resolve wage issues with their former employers.
In 2008, the Legislature amended the Wage Act to make Massachusetts the first state in the country to allow judges to impose automatic triple damages against an employer who is found to have violated the Wage Act. Under the new law, employees do not have to show that the employer intended to violate the Act.
Business owners must generally pay former employees for their earned but unused vacation days upon discharge from employment. The unused vacation benefit is considered earned wages under the Wage Act, even if the employer has a policy that states otherwise.
While there are some circumstances where an earned commission is considered wages under the Wage Act, the manner by which the commission is earned must be carefully reviewed in advance with counsel to determine whether the commission is considered wages under the Wage Act.
Discrimination in Employment
Employers with six or more employees are prohibited from discriminating against employees on the basis of gender, age, race, religion, national origin, sexual orientation, handicap status, genetic information, or military service or membership, in all aspects of the employment relationship, including hiring, compensation terms, and discharge. Employees are also protected against sexual harassment in the workplace. An employer is generally liable for sexual harassment of its employees by managers, regardless of whether the employer is aware of this conduct.
It is illegal for an employer to retaliate against an employee who opposes illegal employment practices or files a claim with the Massachusetts Commission Against Discrimination ("MCAD"). An employee is required to file a claim with the MCAD within 300 days of the discriminatory event.
Since discrimination claims are factually specific and have short statutes of limitations, counsel should be consulted in advance to determine whether you have valid legal claims or defenses.
Employee or Independent Contractor
The Massachusetts Independent Contractor Law was amended so that, effective July 13, 2008, all working relationships are presumed to be employer-employee. The law establishes a three-prong test. If the employer cannot prove any one of the three prongs, then the worker must be classified as an employee under the State’s worker’s compensation and wage laws.
The employer must show that:
(1) the worker is free from the employer’s control and direction in performing the service; and
(2) the worker’s job or service is performed outside the employer’s usual course of business; and
(3) the worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service being performed.
The determination of each of these prongs is fact based and should be addressed with counsel in advance, to ensure that employees are properly classified. If you misclassify a worker as an independent contractor, then you have not only violated the Independent Contractor Law, but you may also have violated the Wage Act; the Minimum Wage Law; the Overtime Law; the Worker’s Compensation law and the law requiring employers to pay withholding taxes on employee wages. These violations can result in stiff penalties.
It is important for the business owner to review your workers' status with counsel to determine whether workers are properly classified to avoid liability under these laws. Workers should also be aware of their rights under the law so they know they have options if they are not treated properly.