As a result of the COVID-19 global health crisis, there are new federal, state, and local health and safety guidelines for employers. Employers must develop proper social distancing policies, implement rigorous hygiene protocols, develop comprehensive safety procedures and inform employees of detailed reporting and notification processes.
In some cases, employers may implement testing or monitor for symptoms, such as taking an employee’s temperature when reporting to work. To comply with ADA regulations, employers must ensure all mandatory COVID-19 testing is “job-related and consistent with business necessity”. Employers must maintain employee privacy rights by keeping COVID-19 test results confidential and separate from an employee’s personnel file. Furthermore, under EEOC guidelines, COVID-19 testing must be accurate and reliable, and employers are prohibited from requiring antibody testing. Public health requirements are constantly changing requiring employers to monitor them closely in order to ensure compliance and maintain a safe workplace.
Other COVID-19 employment obligations include adopting flexible remote work arrangements and complying with federally mandated leave provisions. Due to the global uncertainty caused by the pandemic, there are currently over 300 employment cases related to COVID-19 filed in courts across the country. The majority of these cases include claims relating to discrimination and sick leave. Employers should also take caution when considering whether or not to require employees who return to work to sign liability waivers. These waivers may not be enforceable as worker’s compensation claims, generally, cannot be waived. A recent executive order, however, protects employers from COVID-19-related liability as long as the employer is not negligent. Over a dozen states enacted or are attempting to enact similar legislation.
On March 18, 2020, the Federal Government enacted the Families First Coronavirus Response Act (FFCRA). The FFCRA creates a series of employee relief efforts, which will remain in effect through December 31, 2020.
Covered employers with less than 500 employees must provide employees with COVID-19-related sick leave and family and medical leave. Generally, covered employers must provide two weeks of fully paid sick leave if an employee is unable to work because they are quarantined or experiencing COVID-19 symptoms and seeking a medical diagnosis. Additionally, covered employers must provide up to two weeks of leave at a rate of two-thirds of regular pay if an employee is providing a bona fide need to care for a quarantined individual. In addition, an employee may be eligible for up to 12 weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate to care for a child whose school or place of care is close as a result of COVID-19.
The "Me Too" movement has been a social campaign to raise awareness about sexual harassment. US culture, especially in the Northeast region, is now very sensitive about accusations of sexual harassment in the workplace. Allegations of sexual harassment can lead to expensive litigation and create a lot of negative attention in the media. Therefore, employers should have strong policies to educate employees about acceptable behavior and be prepared to respond to allegations of sexual misconduct with a thorough investigation and discipline when appropriate.
The rise of the "Me Too" movement has also increased attention on and criticism of non-disclosure agreements. In the past, some executives and employers have paid sexual harassment accusers to sign a non-disclosure agreement in order to prevent the accuser from publicizing the allegations. The US Internal Revenue Service has generally allowed employers to take tax deductions for confidential settlements and attorney fees related to the defense of such claims, but a recent change to the US Tax Code now explicitly prohibits employers from taking tax deductions for payments made to individuals alleging sexual harassment or sexual abuse if the settlement or payment requires the claimant to sign a non-disclosure agreement.
Nevertheless, non-disclosure agreements are legal, and there are many other good reasons to use them. For example, when an employee leaves a company after any type of dispute, a non-disclosure agreement can provide finality and prevent both sides from speaking negatively about the other. Thus, non-disclosure agreements are likely to endure despite this recent scrutiny.
In addition, "Black Lives Matter" is a movement advocating for racial equality and protesting against police brutality. Employers should review their policies to ensure that the workplace is equitable and inclusive. Those that conduct interviews should be provided training to ensure inclusivity of all applicants.
The Northeast USA, in addition to the West Coast, has been an area of innovation and investment in the technology and life science industries. Biotechnology companies have been particularly successful in Boston because of the city’s world-class hospitals and universities. The Massachusetts Institute of Technology and Boston’s entrepreneurial culture have contributed to many successful robotics and computer technology-based start-ups and consumer product companies.
The young workforce attending and graduating from Boston’s many universities have also embraced the flexibility of the “gig” economy, favoring short-term or part-time contracts and freelance work over permanent jobs. The rise of the gig economy has, however, raised legal questions about whether participants should be treated as employees or independent contractors.
With all of the innovation in these industries, it is especially important that employers protect their intellectual property and trade secrets. Any new venture or employment agreement should specify the ownership of intellectual property. While employers in Massachusetts may require certain employees to sign non-compete agreements, which prohibit employees from working for a competitor for a period of time after leaving the employer, a change in Massachusetts law in 2018 generally limits non-compete agreements to high-level employees. Meanwhile, there are some new laws, such as the federal Defend Trade Secrets Act, which make it easier for employers to protect and recover trade secrets in this very competitive environment.
The significant increase in the number of people unemployed, laid off, or furloughed due to COVID-19 caused an increased demand in part-time work and odd jobs. This created a more competitive gig economy resulting in a decrease in gig economy workers’ pay, harming it overall.
Union membership in the private sector has declined significantly since its peak in the 1940s and 1950s, although the rate of decline has varied by industry and region. Recently, however, a political coalition that included union and non-union groups successfully advocated for a new law that will increase the minimum wage in Massachusetts from USD11 per hour to USD15 per hour by 2023. Massachusetts will join California, Illinois, Maryland, New Jersey, and New York as the only states in the USA to require a USD15 minimum wage. Additionally, Washington D.C. passed laws requiring a USD15 minimum wage by 2025 or earlier. The success of this effort is evidence that non-union groups and coalitions can fill the traditional organizational and advocacy roles of unions, which will likely further contribute to the decline in union membership in the private sector.
One of the biggest impacts of COVID-19 on unions is in connection with the monitoring and enforcing of safety in the workplace. Union members are actively filing lawsuits and/or complaints with the Occupational Safety and Health Administration (OSHA) in an effort to regulate and ensure workers safety during the pandemic. Due to the novelty of the COVID-19 pandemic, regulations are constantly being modified and unions are playing a role in ensuring the enforcement of appropriate workplace standards.
The reconstituted National Labor Relations Board (NLRB) under the Trump administration reversed policy decisions by the prior Obama NLRB that favored union organization and broad protection of workers’ rights. The Obama NLRB decisions addressed the following, among other topics: the definition of “joint employer status”, which made it easier for unions to organize in situations involving staffing agencies or franchises; “micro units”, which made it easier for employees to organize bargaining units; and a policy to invalidate employer rules if they could be interpreted to violate workers’ rights.
On the issues of joint employer status and micro units, the new Trump NLRB returned the rules to their pre-Obama status, while it set new standards for analyzing employee handbooks and policies. Recently, the Trump NLRB made it easier for an employer to terminate negotiation with a union and eject the union from the workplace if the employer believes that a majority of workers no longer supports that union. These NLRB decisions are consistent with the Trump administration’s general policy of reducing restrictions on business. In this climate, unions are filing fewer complaints against employers out of concern that the Trump NLRB will issue pro-business decisions that will have a negative impact on employees with similar challenges in the future.
COVID-19 prompted uncertainty regarding the rights and obligations of employers. Although the impact of COVID-19 within the NLRB remains unclear at this time, the NLRB recognized the fluidity of the pandemic and resulting regulations and issued advice memoranda granting employers flexibility. In that context, employers should narrowly tailor their actions to what is deemed appropriate in the particular circumstances and try to discuss such actions with the union prior to implementation.
At the outset of any relationship between an entity and its agent, it is critical to define the nature of the relationship and to delineate, as clearly as possible, the rights of each party. In Massachusetts, when choosing between an employer-employee or independent contractor relationship, it is important to consider that Massachusetts has a very stringent independent contractor statute; see M.G.L. c. 149, § 148B. Therefore, only a traditional independent contractor relationship is likely to survive statutory scrutiny in Massachusetts.
Another consideration is the applicability of “joint employment” and the shifting definition applied by the NLRB. The Obama NLRB significantly broadened the scope of what could be considered “joint employment” between two entities. The Trump NLRB, however, has overturned or overhauled numerous Obama-era NLRB policies including those related to defining “joint employment”. Thus, indirect control by one organization over another is likely no longer sufficient to establish joint employment.
Yet another critical consideration for any employer is whether there is a legal obligation to compensate interns. In Massachusetts, an employer is generally not required to pay an intern who is receiving academic credit. Otherwise, barring the applicability of a narrow class of exceptions, employers are legally required to compensate an intern pursuant to state minimum wage laws; see M.G.L. c. 151, § 2.
Employers need to understand their obligation to ensure a safe workplace, which requires that employers conduct certain safety-related screening and workplace set-up. At minimum, employers should question employees regarding symptoms. In addition, employee workplace needs to be reorganized to comply with social distancing requirements.
US employers who would like to employ foreign citizens should ensure compliance with work visa requirements under federal law; see 8 U.S.C. § 1153(b). This statutory provision sets forth the bases and requirements for employment-based immigration including, without limitation, for “priority workers” and “skilled workers, professionals, and other workers”. Employers should also consider that the Trump administration has made immigration regulation and reform a priority, meaning that even routine work visas are being more heavily scrutinized and may be more difficult to obtain.
In June 2020, President Trump extended a freeze on green cards for new immigrants and signed an executive order to suspend new H-1B, L-1, J and other temporary work visas for skilled workers, managers and au pairs through the end of the year. The freeze on L-1 visas, which are meant for executives who work for large corporations, may displace corporate managers who are not US citizens.
It remains to be seen if COVID-19 will bring lasting changes to immigration policies. Nearly all jurisdictions have implemented entry or travel restrictions. Employers are required to monitor the DHS and ICE websites for additional updates regarding extensions to I-9 flexibility, which is currently in place, as result of the COVID-19 pandemic.
To the extent that any employees are or may become unionized, employers must understand how the collective bargaining agreement will define and otherwise affect the employer-employee relationship. To that end, any employer with unionized employees should be well informed on the applicable provisions of the National Labor Relations Act; see 29 U.S.C. § 151, et seq. While union membership is generally declining in the USA, certain unions, including the Massachusetts Nurses Association, continue to maintain a strong presence and remain active in Massachusetts.
A variety of intersecting laws and regulations either directly prohibit or place strictures on lines of inquiry in the process of interviewing prospective employees in Massachusetts. Before going on to discuss prohibited or limited areas of inquiry, by way of example, here are some topics that are generally considered safe areas of inquiry in Massachusetts: work history, qualifications, education, expectations, significant challenges, and personal strengths and weaknesses.
Impermissible Interview Questions
Any inquiry about an individual’s membership in a protected class is prohibited in Massachusetts. Employers are required to abide by both federal and Massachusetts anti-discrimination laws. Protected classes under federal law include: race, color, national origin, religion, sex (including pregnancy, childbirth and other related medical conditions), sexual orientation and gender identity, disability, age (40 or older), citizenship status, and genetic information. Additional protected classes under Massachusetts law include marital status, military service, arrest record and ancestry.
If a prospective employee volunteers such information in an interview (eg, an applicant volunteers that they recently got married), a savvy interviewer would be well advised to steer the topic away from the line of discussion concerning protected class membership
In addition, under the Massachusetts Equal Pay Act, M.G.L. c. 149 § 105A, inquiries concerning salary history are prohibited (either directly or through an agent such as a headhunter).
Employers should be aware that older employees and those with underlying health conditions may be entitled to a reasonable accommodation to work remotely in light of the COVID-19 pandemic.
Interview Questions Subject to Limitations
In 2010, Massachusetts became one of the first states to adopt “ban the box” measures, which bar employers from requiring applicants to check a box if they have a criminal history. Massachusetts prohibits any inquiry into an applicant’s criminal history on an initial written application and significantly limits potential inquiries into criminal history during the interview and intake stages of hiring. For instance, during an interview, employers are specifically prohibited from asking about:
In short, unless mandated by state or federal law requiring employers to make criminal inquiries of applicants (wherein certain exceptions will apply to the restrictions discussed here), employers should proceed very cautiously with any inquiry into a job applicant’s criminal history.
Finally, any employer who intends to make inquiries into a job applicant’s credit history must abide by the federal Fair Credit Reporting Act, which contains requirements concerning obtaining written consent and providing a variety of written disclosures to applicants. These disclosures include forms which must be provided to an applicant before and after taking adverse action, such as not hiring an applicant based on information contained in a credit report.
On October 1, 2018, Massachusetts passed a law limiting the execution and enforcement of non-compete agreements that arise from the employment relationship.
This law applies to non-compete agreements entered into on or after October 1, 2018 between employees (including independent contractors) and employers. It does not, however, apply to employment non-competes made in connection with the termination of an employee’s employment – provided that the employer allows any employee seven days in which to revoke their acceptance of such an agreement. Note that Massachusetts’s new non-compete legislation does not govern other types of restrictive covenants in employment agreements apart from non-competes, such as non-solicitation and confidentiality agreements.
Under the law, employers may not enforce a non-compete executed on or after October 1, 2018 against several broad categories of employees:
Any employee non-compete under the law may not exceed 12 months in duration from the cessation of employment, unless the employee has engaged in unlawful misappropriation of the employer’s physical or electronic property, or has committed a breach of fiduciary duty.
In addition to these substantive requirements, the law places new procedural protections for employees. For a non-compete entered into at the commencement of employment to be valid:
Similarly, a non-compete presented after the commencement of employment must be in writing, signed by both parties, provide for at least ten days’ notice before becoming effective, and advise of the employee’s right to consult counsel before signing it (and must be supported by additional consideration as discussed below).
Significantly, under the legislation, although an offer of employment is itself sufficient consideration to support a non-compete entered into at the commencement of employment, this is no longer the case for non-competes entered into after the commencement of employment. Post-commencement non-competes, to be enforceable, must be supported by “fair and reasonable” consideration – ie, some additional payment or benefit to the employee – independent of continued employment (like a bonus or stock options).
Under both Massachusetts common law and the new non-compete legislation, restrictive employment covenants may not be broader in scope than is necessary to protect an employer’s legitimate business interests. Such interests include protection of trade secrets, confidential information and preservation of business goodwill. Restrictive covenants must also be reasonably limited in time and geographic scope. Because restrictions on competition are generally less favored than other types of restrictive covenants, employers should always consider whether they may adequately protect their legitimate business interests through alternatives to a non-compete, such as non-solicitation and non-disclosure or confidentiality agreements.
While most non-compete agreements in Massachusetts are covered by the new statute and its one-year limitation, Massachusetts courts have generally upheld restrictions that endure for multiple years.
Massachusetts recently adopted the Uniform Trade Secrets Act (UTSA). This broadly defines an employer’s trade secrets to mean “specified or specifiable information, whether or not fixed in tangible form or embodied in any tangible thing, including but not limited to a formula, pattern, compilation, program, device, method, technique, process, business strategy, customer list, invention, or scientific, technical, financial or customer data”.
Trade secrets are subject to protection under the UTSA if they provide “actual or potential” economic advantage, meaning they need not be in current or continuous use by the employer. The key to an employer’s ability to protect its trade secrets in Massachusetts is whether, and to what extent, the employer has undertaken efforts to maintain the information’s confidentiality (and communicated its confidential nature to employees).
Employers in Massachusetts must also take care to safeguard the confidential information they have regarding third parties. Employers whose employees are provided access to the confidential information of third parties have a legal duty to prevent employees’ foreseeable misuse of that confidential information.
Additionally, any business in Massachusetts that maintains or stores personal information about Massachusetts residents must comply with the state’s regulatory standards for storing and protecting the security of personal information. Among others, the regulations mandate that personal information be encrypted when stored on portable devices or transmitted wirelessly on public networks. By statute, businesses in Massachusetts are subject to prompt notification requirements when they know or have reason to know of a breach of data security or of unauthorized use of personal information.
One issue COVID-19 brought to light was the fact that employers should review their policies to ensure that confidential information is protected when an employee uses his or her own device or is working remotely from a company-owned device.
Apart from customer or client confidential information, employers also have obligations with respect to their employees’ privacy. The Massachusetts Privacy Act protects all individuals from “unreasonable, substantial, or serious interference[s]” with their privacy. In determining whether an employer has violated the Privacy Act, courts balance the employer’s legitimate business interests against the degree of the intrusion on privacy. Thus, for example, courts have held that employers’ general interest in promoting a drug-free workplace is insufficient to justify a random drug-testing policy. Rather, such a policy should focus on employees whose job duties create a safety risk or exigency.
If employers choose to implement testing or monitor symptoms of COVID-19, such as taking an employee’s temperature when reporting to work, the employer must maintain employee privacy rights by keeping COVID-19 test results confidential and separate from an employee’s personnel file.
Employees in Massachusetts enjoy robust protections against workplace discrimination. Employers are prohibited from discriminating against current or prospective employees based on race, color, religious creed, national origin, ancestry, sex, gender identity or expression, age, handicap (disability), mental illness, sexual orientation, genetic information or military status; see M.G.L. c. 151B (applicable to employers with six or more employees) and M.G.L. c. 93, § 102 (applicable to employers with less than six employees).
Under this rubric, sexual harassment is classified as unlawful sex discrimination. In addition, most employers are prohibited from asking about an applicant’s criminal history on an initial job application, and employers may not ask an applicant for employment – at any stage of the hiring process – to provide a copy of their criminal offender record information or arrest records. Employment discrimination laws also protect against retaliation for engaging in protected conduct, which would include lodging an internal complaint of discrimination or harassment. All employers have a duty to thoroughly and competently investigate any claims of unlawful harassment or discrimination and, in the event evidence of unlawful conduct is found, to take prompt remedial action.
On June 15, 2020, the Supreme Court decided the landmark case Bostock v Clayton County, which prohibits employers from discriminating against employees based on their sexual orientation and/or their gender. While many employers ban LGBTQ discrimination in the workplace, employers may need to add sexual orientation and transgender status as protected categories, and expand the definition of “sex” in employee handbooks or conduct policies. Employers should be aware of other obligations, including permitting employees to use restrooms that reflect their gender identity.
Although Massachusetts law makes clear that courts may not second-guess an employer’s honest business judgment with respect to the performance of its employees, recent cases have also emphasized the importance of conduct or remarks evidencing implicit bias in proving discrimination claims.
As courts become more receptive to claims of implicit or unconscious bias in the employment discrimination context, it is important for employers to be proactive in providing employees with training on proper workplace conduct and the roles that stereotyping and unconscious bias play in the experiences of persons who belong to groups that have historically suffered from discrimination and unequal treatment.
Employers should also be mindful that all of their personnel policies, whether related to disability leave, paid time off or progressive discipline, are applied in an even-handed manner. Failure to do so can lead to unnecessary exposure to claims of discrimination.
Many corporations and businesses have spoken out in solidarity with the black community and the "Black Lives Matter" movement. This outward expression of support by corporate America is a new development and has increased discussions within the workplace regarding these important issues.
As an example, only days after issuing a "Black Lives Matter" statement of solidarity and committing to donate USD1 million to racial justice groups, Starbucks prohibited its employees from wearing pins and other accoutrements supporting "Black Lives Matter". Starbucks stated that this policy was in place because such a statement is political and could incite violence. This decision caused a significant backlash against Starbucks by both workers and customers and resulted in Starbucks amending its policy to permit such pins, etc.
The above example demonstrates the fact that many policies that may have been acceptable in the past, may not suffice at the present time. Employers should review policies regarding discrimination in the workplace and incorporate methods of handling potential conflict between workers in a prompt and reasonable manner while balancing their First Amendment rights. Employers should also consider hosting trainings to address some of these hot topic issues.
Lastly, employers have an obligation under the Massachusetts Personnel Records Law to maintain employees’ personnel records, which are records that identify 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; see M.G.L. c. 149, § 52C.
Employers of 20 or more employees must retain employees’ personnel records for three years after termination of employment. Employees have a right to review their personnel records, to obtain copies of them, and to include statements in the personnel record with respect to any disagreement with the record. An employer must allow an employee to review his or her personnel records, upon request, within five business days of a written request, up to two times per calendar year. Note that employees have an expectation of privacy of information in their personnel files and, accordingly, an employer should not disclose such records except upon request by the employee or pursuant to a court order or other compulsory process.
In Massachusetts, regulation of workplace safety in private workplaces is principally governed by the federal Occupational Safety and Health Act of 1970 (OSHA). OSHA and regulations promulgated thereunder set forth standards for ensuring safe working conditions and provision of a workplace free from serious recognized hazards. Employers should examine their workplace conditions to make sure they conform to applicable OSHA standards. Additionally, OSHA requires employers to maintain records of work-related injuries and illnesses.
Under the Massachusetts workers’ compensation statute, employees who suffer personal injuries arising out of and in the course of their employment must apply for benefits administratively with the Department of Industrial Accidents; see M.G.L. c. 152 § 10. Employees (unless they notify their employers at the time of hire of their intent to retain their rights at common law) are barred under the workers’ compensation scheme from bringing actions at common law against their employers for workplace injuries. Any appeal from a denial of benefits must likewise be applied administratively, subject to judicial review.
Public health requirements and standards are constantly updating and changing due to COVID-19. For example, Massachusetts Governor Charles Baker continues to be aggressive in handling employment safety concerns related to COVID-19, which includes constantly reviewing statistics and issuing revised orders to ensure the safety of persons within the Commonwealth. For instance, after announcing the four-phase reopening of workplaces in Massachusetts, Governor Baker revised his executive order to indefinitely delay the start of the second part of Phase III and IV due to a spike in COVID-19 cases. This meant that establishments and workplaces designated to these phases of the reopening plan are not permitted to reopen their brick and mortar locations indefinitely. Employers must implement a system to monitor such orders and regulations closely in order to ensure compliance as well as a safe workplace.
Distribution of an employee personnel manual or handbook is a way in which an employer may establish clear expectations and standards of conduct to be applied uniformly across the workforce. To ensure that the provisions of an employee handbook are not construed to alter the at-will nature of employment or give rise to contractual obligations to the employee, a handbook or manual for Massachusetts employees should contain an explicit and prominent disclaimer of contractual rights and a clear statement that the handbook or manual is not intended to alter the at-will default rule. Handbooks should contain written non-discrimination and sexual harassment policies.
Employers should review their employee handbook to ensure it includes necessary updates such as new procedures and protocols for workplace safety related to COVID-19 implementations.
In addition to the federal Consolidated Omnibus Reconciliation Act of 1985 (COBRA law), which governs continuation of employer-based health and welfare benefits plans after the cessation of employment for employers with 20 or more employees, Massachusetts also has a “mini-COBRA" law that applies to employers with between two and 19 employees; see M.G.L. c. 176J, § 9. Under Massachusetts’s mini-COBRA law, small group health carriers must provide continuation of coverage benefits, at the employee’s expense, for periods of 18 or 36 months, depending upon the nature of the mini-COBRA qualifying event. The employer’s small group carrier must promptly notify an employee or qualified beneficiary of their rights to continuation coverage.
On October 1, 2019, employers began making payroll withholdings for the new Massachusetts Paid Family Medical Leave Act (PFML), which goes into effect in January 2021; see M.G.L. c. 175M. Under the PFML, employees will be entitled to paid leave of up to 20 weeks for an employee’s own health condition, and family leave of up to 12 weeks to care for family members, for a total combined annual leave period of 26 weeks. The PFML may be used to bond with a child in connection with childbirth, adoption or foster-care placement, as well as for leave associated with a family member’s military service.
The provisions for the PFML mirror those for unemployment benefits. The new benefits apply to employees for whom employers are required to report W-2 wages to the Department of Unemployment Assistance in Massachusetts. The employees need not live in Massachusetts, but must work in Massachusetts and earn enough money in Massachusetts in the prior year to meet the financial test to obtain unemployment insurance.
The new law contains a specific anti-retaliation provision, which protects against employees who exercise their rights under the PFML. Any negative change to an employee’s status or adverse employment action during leave, or within six months after, creates a presumption of retaliation, which can be contradicted with clear and convincing evidence.
Employers may apply for an exemption online if they offer an approved private plan for paid family and medical leave and will be notified immediately of approval or denial. Employers with qualifying private plans are not required to remit payments to fund the state plan. The private plan must cover all individuals with the employer’s federal tax identification number.
To be eligible for an exemption, the benefits must be greater or equal to the benefits provided under the PFML. However, even if an employer is exempt by way of a private plan, employees are still entitled to protection under the PFML, including the right to appeal their application if denied, job protection during leave, and protection against retaliation.
Employers are well advised to clearly delineate the parameters of the employment relationship at its inception in order to maintain control of the termination process. Key considerations include the nature of employment, whether the employer wants the employee to be bound by restrictive covenants, the procedure for terminating an employee, and any resulting employment disputes and litigation.
Non-compete Agreements and Garden Leave
One of the most important considerations for an employer is whether an employee will be subject to a non-compete agreement at the end of their employment. In 2018, Massachusetts passed legislation significantly limiting the enforceability of non-compete agreements, such that agreements will only be enforced if the employee is terminated for “cause”; see M.G.L. c. 149, § 24L (2018). This law applies only to non-compete agreements entered on or after October 1, 2018. Thus, defining “cause” at the inception of the employment relationship is likely to play an outsized role in the enforceability of most non-compete agreements in Massachusetts.
Notably, this legislation also contains a “garden leave” provision, which requires that the employer pay the employee 50% of the employee’s highest base salary over the preceding two years for the duration of the restricted period. Alternatively, the employer may provide the employee with mutually agreed-upon consideration. Employers should note that this legislation does not affect other types of restrictive covenants, such as non-solicitation agreements.
Acts Preventing Age Discrimination
To the extent that an employer grants a release or is involved in a settlement with a former employee, the employer should be cognizant of certain protections for individuals over the age of 40 under federal law. The Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA) expressly prohibit discrimination on the basis of age; see 29 U.S.C. § 621, et seq. In order to comply with the provisions of the ADEA and OWBPA, an employee must be given 21 days to consider and accept the terms of any agreement, and is further allowed to rescind the agreement within seven days of signing. In the context of group layoffs or reductions in force, the OWBPA and the ADEA also impose obligations on employers to provide individuals whose employment is being terminated with a schedule containing certain statistical information concerning the other individuals affected by the termination.
Persons over the age of 65 are at higher risk of COVID-19. The Age Discrimination in Employment Act (ADEA) prohibits employers from involuntarily excluding persons over the age of 40 from work. Therefore, employers must be cautious when making decisions regarding work schedules in order to avoid liability.
Arbitration, Class Action and Mass Terminations
Employers should also establish whether the termination of an employment relationship will be handled through alternative dispute resolution at the outset of the relationship. There is clear deference to arbitration in both Massachusetts and federal courts. Employers should also consider the possibility of eliminating the threat of class action litigation through a well-drafted class action waiver. Notably, the Supreme Court recently upheld the enforceability of class action waivers in relation to an employee arbitration agreement, signaling the continued viability of this option for employers moving forward; see Epic Sys. v Lewis, 138 S. Ct. 1612 (2018).
With regard to plant closings or mass layoffs, employers must be aware of federal and state legislation containing specific notice requirements. Under the Worker Adjustment and Retraining Notification (WARN) Act, employers must provide 60 days’ notice when laying off more than 50 employees within a 30-day period; see 29 U.S.C. § 2101, et seq.
When the employment relationship ends, employers should also be aware of requirements under the Consolidated Omnibus Reconciliation Act of 1985 (COBRA). This federal law requires that employers of 20 or more employees who offer healthcare must continue to provide coverage to employees who are terminated or fall into other specific categories; see 29 U.S.C. § 1161, et seq. In addition, the Massachusetts small group continuation of coverage law requires the continuation of health benefits to employees of small businesses with two to 19 employees; see M.G.L. c. 176J, § 9. Besides healthcare-related concerns, employers should also consider potential issues raised pursuant to the Employment Retirement Income Security Act (ERISA) when an employee departs or is terminated; see 29 U.S.C. c. 18.
In Massachusetts, absent an employment agreement providing for employment for a defined temporal period, employment is at will, meaning the employment relationship is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all. However, Massachusetts courts have recognized certain exceptions to this rule.
At this juncture, given the length of the COVID-19 pandemic, it is unlikely that it will significantly impact employment contracts as force majeure becomes more and more difficult as the employer continues to provide employment.
Breach of Good Faith
Firstly, employees may bring wrongful termination claims against their employers for breach of the implied covenant of good faith and fair dealing (a covenant that is implied in every Massachusetts contract, including employment contracts) where a discharged employee is terminated in bad faith for the purpose of depriving the employee of future compensation that is clearly connected to work already performed.
Under this bad-faith theory, the employer’s conduct must be taken in bad faith either to deprive the employee of the benefits of labor already substantially earned, or for the purpose of unfair leveraging of contract terms to secure undue economic advantage. Thus, for example, an employee whose termination was motivated by the employer’s desire to avoid paying commissions already earned may state a claim for breach of contract against their employer.
Another narrow exception to the at-will employment rule has been recognized in Massachusetts where employment is terminated contrary to a well-defined public policy. Thus, an employee who is terminated for asserting a legally guaranteed right (such as the filing of a workers’ compensation claim), for engaging in legally required conduct (such as jury service) or for refusing to commit a violation of the law (such as committing perjury), may state a claim for wrongful termination against the employer. Additionally, the public policy exception has been recognized in the case of retaliation for an employee’s co-operation with a law enforcement investigation concerning the employer.
Wrongful termination and breach of contract claims against employers may be pursued in the Massachusetts state courts. If a basis for federal jurisdiction exists, such as diversity of parties with an amount in controversy at or above USD75,000, then such claims may also be adjudicated in the federal courts located in Massachusetts.
The Massachusetts Commission Against Discrimination (MCAD) has original jurisdiction over complaints of employment discrimination under Massachusetts’s anti-discrimination statutes, which include claims of sexual harassment and retaliation for complaining about alleged discriminatory conduct either internally or to an administrative agency. An aggrieved employee asserting a discrimination complaint generally must file an administrative charge with the MCAD within 300 days of the last discriminatory act complained of. Beginning 90 days after the filing of an MCAD complaint, the plaintiff may elect to remove the case from the MCAD and file a claim in the Massachusetts Superior Court. Upon removal, a plaintiff must file any complaint in the Superior Court within three years of the date of the last discriminatory act.
Prevailing plaintiffs in discrimination cases are entitled to various types of damages, including back pay, front pay and emotional distress damages. Punitive damages are also available in cases where the employer’s conduct is found to be outrageous due to an evil motive or reckless indifference to the rights of others.
Provided that an employer places clear and conspicuous disclaimers of contractual obligation in a personnel handbook or manual, as a general matter, an employer’s failure to comply with its handbook provisions (eg, a discipline policy) will not give rise to independent liability for breach of contract. An employer’s failure to follow its own internal policies and procedures with respect to a particular employee, however, may be used as evidence of discrimination or retaliation.
Collective Bargaining Agreements
Claims that are substantially dependent upon analysis of the terms of a collective bargaining agreement are governed exclusively by the federal Labor Relations Act. Accordingly, when a court is confronted with such claims couched in terms of state law, it will either dismiss the complaint as preempted by federal labor law or it will treat the claim as arising under federal labor law. Federal courts maintain exclusive jurisdiction over all disputes requiring interpretation of a collective bargaining agreement.
Wage Act and Minimum Fair Wages Law
The Massachusetts Wage Act, and Minimum Fair Wages law, require prompt payment of wages. For employees who voluntarily leave their employment, all outstanding wages must be paid in full on the following regular payday; employees who are discharged from their employment must be paid in full on the day of termination.
“Wages” under the Massachusetts Wage Act include, in addition to salary, accrued and unused holiday or vacation time to the extent provided under an oral or written agreement. Wages also include commission payments to the extent that such commissions are definitely determined and are due and payable to the employee. Bonus and other incentive payments that are contingent in nature, as well as fringe benefits (eg, provision of a company car or business expense reimbursements) generally do not constitute wages. Additionally, although employers with 11 or more employees must allow employees to accrue paid sick time, accrued and unused sick leave does not constitute wages. However, employees may, with the consent of the Massachusetts Attorney General, file civil actions against their employers to recover unpaid sick leave.
The Massachusetts Minimum Fair Wages law provides the minimum hourly wage that an employer may pay to employees. The current minimum wage for non-tipped employees is USD12 per hour. Under recent legislation, this minimum wage will gradually increase between now and January 1, 2023 to USD15 an hour. Employers are strictly liable for violations of the Massachusetts Wage Act and Minimum Fair Wages laws, and violations of these laws automatically result in trebling of damages and recovery of attorneys’ fees and costs.
Employers should be aware of the risk of wage/hour claims for non-exempt employees that are working remotely. Non-exempt employees should ensure that they are working a prescribed set of time and if working more than 40 hours are paid overtime. In addition, non-exempt employees must be paid their full salary if performing work during a week, regardless of how much work the employee performs.
The Massachusetts Equal Pay Act (MEPA), prohibits the payment of different wages to employees of different genders for “comparable work”, which is broadly defined to mean “substantially similar” work in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.
MEPA also makes it unlawful for employers to prohibit employees from discussing their salaries with each other or inquiring regarding each other’s compensation, and the law prohibits employers from asking about an employee’s salary history prior to extending an offer of employment that includes a salary offer. Unlike other discrimination claims, plaintiffs need not file a charge at the MCAD before bringing a suit under MEPA. Violations of MEPA result in automatic double damages.
The discrimination, earned sick leave, MEPA, and wage and hour laws in Massachusetts all prohibit employers from retaliating against employees for exercising their legal rights under the law or engaging in protected conduct. Such protected conduct includes the filing of a complaint for alleged violations of the law; communicating with another person, including co-workers, about any violation; participating in an administrative or judicial action regarding an alleged violation of the law; or assisting another person in that person’s exercise of their rights.
In addition, employers should be aware of state and federal whistle-blower statutes, which provide protection, under certain circumstances, against retaliation. Under the Massachusetts False Claims Act, private litigants, known as “qui tam relators”, may bring claims on behalf of the Commonwealth for recovery of damages resulting from false or fraudulent claims for payment made to the Massachusetts government and its agencies and instruments. The Massachusetts False Claims Act provides protection for employees against retaliation by employers for filing a qui tam action against their employers. The federal False Claims Act similarly provides protection against retaliation for employees who bring qui tam actions in federal court for alleged fraudulent or false claims for payment from the federal government.
A number of other federal laws also provide whistle-blower protection for employees who report suspected violations of law, including OSHA, the Sarbanes-Oxley Act of 2002, the Clean Air Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Securities and Exchange Commission’s whistle-blower program.
Employers should ensure that those conducting interviews are aware of potential implicit bias. Guidance and training should be provided to ensure that interviews are properly conducted.
A general release of liability contained in a settlement agreement will not suffice to release an employer from liability under the Massachusetts Wage Act. Thus, employers looking to secure such a release in a separation or settlement agreement should ensure that it contains an explicit release of Wage Act claims.
Additionally, the Supreme Court of the United States recently held that waivers of class or collective arbitration of employment disputes do not violate federal labor law. Previous federal and Massachusetts case law had made clear that class-action arbitration waivers also may not be invalidated on the grounds that an individual plaintiff’s pursuit of a claim would be financially prohibitive.
Massachusetts courts will apply forum selection clauses as long as they are fair and reasonable. This extends to forum selection for employment-related disputes, and includes adjudication of Wage Act claims; under Massachusetts law, there is a presumption that forum selection clauses are enforceable with respect to Wage Act claims. Thus, employers who wish to select a forum other than Massachusetts for resolution of employment-related disputes may generally do so.
Please note, however, that the new non-compete legislation requires the application of Massachusetts law with respect to employment agreements entered into with any employee who has been a Massachusetts resident for 30 days at the time of termination. Thus, courts may meet forum selection clauses that have the effect of skirting the choice of law requirement of the non-compete act with skepticism.
Prevailing plaintiffs in discrimination cases are entitled to several elements of damages, including back pay (compensation for lost wages from the time of an employee’s unlawful termination or constructive discharge until the time of judgment), front pay (a prospective award of lost wages running from the time of judgment until a date in the future), and emotional distress damages. Punitive damages are also available in cases where the employer’s conduct is found to be outrageous due to an evil motive or reckless indifference to the rights of others. Prevailing discrimination plaintiffs are also entitled to awards of attorneys’ fees and, where applicable, costs.
Employers are strictly liable for violations of the Massachusetts Wage Act and Minimum Fair Wages laws, and violations of these laws automatically result in trebling of damages and recovery of attorneys’ fees and costs. Violations of the Equal Pay Act result in automatic double damages, along with attorneys’ fees and costs.
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