Employment Law in Massachusetts: What Out-of-Staters Need to Know

Massachusetts is known for having in place a multitude of laws governing the employment relationship. Over the past few years, Massachusetts has expanded the rights and protections of employees through a number of new statutes.  Employers unfamiliar with this landscape can easily find themselves making costly mistakes when dealing with Massachusetts employees.  We summarize here the most significant traps for the unwary and the newest statutory developments under Massachusetts employment law:

The Massachusetts Wage Act. Like many states, Massachusetts has enacted a statute requiring the regular payment of wages under what is commonly referred to as the “Wage Act.” Unlike many states, however, the Wage Act encompass a wide-range of disputes across the economic spectrum, from minimum wage and overtime disputes involving lower wage earners,  to the misclassifications of employees as independent contractors, to certain incentive compensation for high-level executives.

The penalties for violations of the Wage Act are stiff, and include mandatory treble damages and the payment of attorneys’ fees.   What you need to know:

• The Wage Act is enforced by the Massachusetts Attorney General, but also provides a private right of action for aggrieved employees.
• The Wage Act is a strict liability statute. Even if unintentional, or through a mutual arrangement between an employer and employee (i.e., a deferral of wages), an employer who fails to timely pay wages will be subject to mandatory treble damages and attorneys’ fees.
• At the time of termination, an employer must pay all unpaid wages earned to date, which includes the payment of any accrued, but unused vacation time (where the employer offers paid vacation time to employees).
• Certain agents and officers of a company are personally liable for violations of the Wage Act.
• The Wage Act also prohibits retaliation against employees who have exercised their rights under the statute.

Earned Sick Leave.  Massachusetts adopted an Earned Sick Leave Law effective July 1, 2015.  Under the statute, all employees in Massachusetts are entitled to accrue up to 40 hours of job protected sick leave per year.  For Employers with 11 or more employees, the leave must be paid.  For employers with less than 11 employees the leave may be unpaid.  Importantly for out of state employers, all employees, whether working in or outside of Massachusetts, are counted for purpose of determining the employer size.  The leave may be used to: (1) address the employee’s own physical or mental illness, injury, or medical condition; (2) care for the employee’s child, spouse, parent, or parent of spouse; (3) attend routine medical appointments; (4) address the psychological, physical, or legal effects of domestic violence; and (5) travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.

The Massachusetts Paternal Leave Act.  Effective April 7, 2015, the Massachusetts Maternity Leave Act was amended to expand coverage to male employees.  Employers with six or more employees must allow eight (8) weeks’ unpaid parental leave (to fathers as well as mothers) upon the birth or adoption of a child.  The amended statute also extended coverage to include foster parents when they have a foster placement.

Domestic Violence Leave Act.   Under the Domestic Violence Leave Act (effective August 8, 2014), an employer is required  to provide up to 15 days leave in any 12 month period for a qualifying employee to seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or attend child custody proceedings or address other issues directly related to the abusive behavior against the employee or family member of the employee.  The leave may be paid or unpaid.  An employer cannot discharge or in any other manner discriminate against an employee for exercising the employee’s rights under the statute. Upon the employee’s return from leave, the employee is entitled to restoration to the employee’s original job or to an equivalent position.

Discrimination of the Basis of Sexual Orientation / Gender Identity.  Among other protected classes, Massachusetts has specifically recognized sexual orientation and gender identify as protected classes under its anti-discrimination law, M.G.L. c. 151B.  An employer may not refuse to hire, or otherwise discriminate against an employee in the terms and conditions of employment based on the individual’s sexual orientation or gender identity.  Unlike other states and the certain federal anti-discrimination laws, Massachusetts’s also imposes individual liability against individuals (as well as employers) who retaliate, interfere with, or otherwise aid and abet violations of M.G.L. c. 151B.

Sexual Harassment Policies. As part of its anti-discrimination laws, Massachusetts also requires every employer with six or more employees to have in place a written policy governing sexual harassment and to distribute the policy annually to every employee. The Massachusetts Commission Against Discrimination (MCAD) also recommends that employers adopt written policies prohibiting harassment against members of any protected class (including, for example, harassment on the basis of race, religion, disability).

Non-Competition Agreements. In recent years, Massachusetts courts have further limited the enforceability of non-competition and non-solicitation agreements in the employment context. Several bills seeking to limit the enforceability of non-competition agreements have been introduced in the legislature. While not successful, to date, the legislative leadership, as recently as March 2016, appears to be behind new legislation which could make it much more likely that non-competition legislation will become a reality in the near future.

Criminal Background Checks.  Massachusetts maintains a public database containing certain limited criminal record information (“CORI”) Private employers may, in certain circumstances, seek access to criminal record information concerning employees and applicants.  There are, however, a number of strict requirements employers must comply with in connection with the usage and storage of CORI information in the employment context, including, without limitation:

• Most employers are prohibited from inquiring about an applicant’s criminal record on a written job application.
• Employers must obtain an individual’s written acknowledgement before seeking non-public CORI.
• An employer must provide an employee or applicant a copy of his/her CORI before questioning the applicant about it.
• Before making an adverse employment decision based on an individual’s CORI, an employer must provide: (i) the employee or applicant with a copy of the CORI, (ii) an opportunity to dispute its accuracy, and (iii) information on how to correct a CORI.

Personnel Records. As in other states, Massachusetts requires certain employers to maintain personnel records for employees. Under the Massachusetts Personal Record statute, employers are required to notify employees within 10 days after adding information to the employee’s personnel record that has been, or may be used to “negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.”

Navigating the employment relationship in Massachusetts can be tricky. For those unfamiliar with this legal landscape, the better practice is to consult with counsel before acting. We encourage you to contact a member of the firm’s Employment Law Group.