Category Archives: Managing Employees

Mass Sick Time Law – UPDATE

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Just this week, the Massachusetts Attorney General issued a ruling that gives some employers until January 1 to comply with the new sick leave law?  But, this extension doesn’t apply to all companies.

If your business already offers all employees at least 30 hours of paid time off that can be used for sick time, you don’t have to comply with the new law until January 1, 2016.  But, if you do not offer 30 hours of paid time off, you must take steps to get into compliance by January 1.  In addition, if you offer some employees sick time but don’t offer it to everyone (for example, no sick time for part-timers), you have to have a plan in place to offer all employees protected sick time before July 1.

While the Attorney General’s action seems like a benefit to employers, the reality is that all employers still need to make sure they offer sufficient sick time (unpaid if you have fewer than 11 employees and paid if you have 11 or more employees) on or before July 1, 2015.

If you would like help reviewing your paid time off polices and ensuring you are in compliance with the new law, please contact Bill Hoch to discuss this matter.

Massachusetts Sick Time Law

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On July 1, 2015, all Massachusetts employers will be required to offer sick leave to employees.  If you have 11 or more employees, you will be required to offer paid leave.  If you have 1-10 employees you can offer unpaid leave. This law requires you to provide notice to your employees of their rights under this law.

Do you have a policy in place to ensure your company is in compliance with the sick time policy?  Please contact EmCo if you want help reviewing your paid time off policies or implementing a program that will be compliant with this new state law.

Here are some Q&A’s to help explain the sick time law.

Does The New Sick Leave Law Affects All Businesses?  The new sick leave law affects every employer in Massachusetts.  Starting July 1, 2015, all Massachusetts employers will have to offer time off for employees with their own medical needs or to care for a family member with medical needs.  If you have 1-10 employees, you must offer 40 hours of unpaid sick leave.  If you have 11 or more employees, you must offer paid time off for sick leave.

How Do I Know If I Have 11 Employees? Who Gets Counted?  The law requires you to count all paid employees whether full-time, part-time or temporary.  They all can earn sick leave at a rate of one hour sick time for every 30 hours worked.

But, We Already Offer Vacation Time, Do We Have To Offer Sick Leave Too?  If you offer employees 40 hours of paid leave (sick, personal, or vacation) that they can use for illness, you don’t need to offer more paid leave.  But, you need to make sure your current policy meets or exceeds the requirements of the new law.

How Do Employees Accrue This Leave?  Employees accrue one hour of leave for every 30 hours they work until they reach 40 hours accrued sick time per year.  They only earn 40 hours in a year.

I Have Tipped Employees, How Much Are They Paid For Sick Time?  Employees are paid their hourly wage when using paid sick time unless they are employees who earn less than minimum wage.  An employee on paid sick time must be paid at least minimum wage for paid sick time used.

Is There a Waiting Period For New Employees?  New employees start accruing sick leave as soon as they start working.  However, a new employee cannot take any sick time during the first 90 days of employment.

When Can An Employee Take Sick Time?  (1) To care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;  (2) To attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) To address the effects of domestic violence on the employee or the employee’s dependent child.

Can I Require Proof That The Employee Is Sick?  If an employee is out for more than 24 consecutive hours, an employer can require that the employee provide a certification from a health care provider that the employee is sick and cannot work.  The employer cannot require information describing the nature of the illness.

Is Accrued Sick Time Carried From Year To Year?  Do I Have To Pay For Unused Time?Employers must also allow employees to carry over up to 40 hours of unused sick time to the next calendar year, although they may limit employees from using more than 40 hours in a given year. Unlike vacation time, employers will not have to pay employees for unused sick time at the end of their employment.

Anything Else?  You cannot require an employee to make up time lost to sickness.  In addition, you cannot require a sick employee to find someone to cover his or her shift.  Finally, you cannot punish an employee or give a lower performance rating because the employee legitimately used sick time.  The Massachusetts Attorney General may issue regulations to provide additional details on how this law is to be interpreted.

Will Market Basket Owe Terminated Employees For Accrued Sick Time ?

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It’s not easy being Market Basket.  First you have a major corporate shake-up involving the controlling family who have been fighting for years.  Then your workforce objects to the Board’s actions and tries to get the Board to reverse course.  This dispute results in the effective shut down of many Market Basket stores.  Then management decides to get tough and threatens to fire and replace employees who won’t return to work.  They even organize a jobs fair.  (A risky strategy and horrible PR move, in my opinion.  If it fails, they have no next step.)  Continue reading →

Managing Pregnant Employees

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The Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on Pregnancy Discrimination. (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm).  The Guidance doesn’t offer new laws or protections for employees; rather, it gives a good discussion of the law and provides examples that are useful when addressing issues related to pregnant employees.

What You Need To Know.  The most important thing you can learn from the Guidance is that an employer should not make assumptions about what a pregnant employee can and cannot do.  The employee should initiate any discussion about job changes.  The Guidance is clear that pregnancy should be treated like any other medical condition that could affect an employee’s ability to work.  If a pregnant employee requests changes to her job or schedule to accommodate her pregnancy, the employer is allowed to request a medical note justifying the request.  But, if the request is medically necessary, the employer must make reasonable accommodations to the woman’s job in order to accommodate her pregnancy and allow her to keep working.  Only if the pregnant employee is having clear trouble performing her job, should the employer ask if she needs an accommodation.

Here are some examples of issues that might arise when managing a pregnant employee: Continue reading →

Reducing Risk With Comprehensive Investigations and Documentation

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On February 28, 2014, a Massachusetts court dismissed a discrimination claim brought by three employees against a nursing home base in part on the employer’s detailed investigation and written record of discipline.  The case Metelus v. Wingate Healthcare, Inc., demonstrates the importance of thorough and well documented investigations and discipline.

What You Need To Know.  When faced with a discrimination claim, employers need evidence showing how employees were treated fairly and consistently.  A thorough investigation into employee misconduct and well documented disciplinary warnings will help significantly if a court has to review a termination.

In the Metelus case, three nursing assistants were terminated for refusing a supervisor’s request that they work on another floor to meet patient demand.  The nursing assistants threatened to walk off the job if ordered to change floors.  Instead of disciplining the three employees on the spot, Wingate’s Nursing Director promptly conducted a thorough investigation.   Continue reading →

Disability Discrimination – When You Need To Transfer And When You Don’t

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Recent cases from the Massachusetts Commission Against Discrimination and the Massachusetts Appeals Court offer guidance for when you have to offer an employee a transfer as a disability accommodation and when you do not.

What You Need To Know.  There is no fixed rule on offering a transfer or new job in response to a request for an accommodation.  As set forth below, each case will be reviewed based upon its specific facts.  But, don’t let anyone tell you that you never have to transfer an employee or that you must transfer an employee if the employee makes this request to accommodate a disability.

Under Massachusetts law, employers have traditionally been advised that they are not required to transfer an employee to a new job if the employee’s disability prohibits the employee from performing his or her current job. Continue reading →

If You Can’t Say Something Nice . . . . What Not To Say To Staff After Terminating An Employee

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On January 28, 2014, the United States District Court for the District of New Hampshire issued an opinion allowing a defamation case to proceed against an employer who said an employee was terminated for performing a “heinous act” or a “heinous crime.”  Grivois v. Wentworth Douglas Hospital.

What You Need To Know.  After terminating an employee, a company should provide other employees with minimal information concerning the reason for the termination.  While telling employees that there were performance problems or that the employee was not “a good fit” is probably acceptable, – as long as the statements are true – employers should not provide greater detail or make statements that include personal information or cast the terminated employee in a bad light.

Grivois sued for defamation because a supervisor allegedly told people she was fired for “a heinous act” or “a heinous crime.”   Continue reading →

Why You Definitely, Absolutely, Get-It-Right-Now, Must Have An Employee Handbook

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On December 23, 2013, a Massachusetts court issued a decision allowing an employee lawsuit for unpaid vacation time to go forward because there was no written policy clearly explaining the vacation policy.  (Boesel v. Swamptree, Inc.).

What You Need To Know.  If you have a written handbook, you will have clearly understood personnel policies and avoid costly disputes with employees.

Personnel handbooks are an important tool for all businesses.  Many smaller companies, however, just don’t want to be bothered.  Continue reading →

Retaliation: The Hardest Claim To Defend

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On September 12, 2013, the Massachusetts Commission Against Discrimination (“MCAD”) issued a decision finding that a company illegally retaliated against an employee who had recently complained of discrimination. The case, MCAD v. Saybolt, LP is discussed below.

What You Need To Know.  Anytime you want to discipline or terminate an employee who has complained of discrimination or any violation of law, you must recognize that your action could be seen as illegal retaliation.  Before taking any action, you should review the facts and make sure your decision to terminate or discipline the employee hasn’t been influenced, at all, by the employee’s recent complaints.  Further, since your decision could easily been seen as retaliation, you should consider slowing down your process and taking less drastic steps to help improve a problem employee.  Only after your efforts to help the employee have failed should you move forward and terminate someone based upon performance if the person has recently filed a complaint.

This ruling by the MCAD discusses a classic case where a company has trouble managing an employee who has complained that a manager discriminated against the employee. Continue reading →

Investigations, Done Right, Won’t Cause a Workers’ Comp. Problem

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The Massachusetts Appeals Court issued a ruling on October 18, 2013. that an employee could not collect worker’s compensation for a stress injury arising from a workplace investigation.  The case, Upton’s Case, is discussed below.

What You Need To Know.  Done correctly, an investigation into employee misconduct that causes an employee to leave work with a stress related injury will not support a workers’ compensation claim.  However, a poorly handled or abusive investigation, could be the basis for a claim.  So, before beginning an investigation into employee misconduct, you should review the matter with counsel to ensure your plan and methods are acceptable.

This case exemplifies every HR persons worst nightmare.   Continue reading →