Category Archives: News

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 →

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 →

Handbooks Should Not Create A Contract With Employees

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On February 28, 2014, a Massachusetts court ruled that an employee handbook, when properly written, was not a contract between the employer and employee.  The case, Metelus v. Wingate Healthcare, Inc., is a positive decision for employers and supports the use of well-crafted employee handbooks.

What You Need To Know.  Employee handbooks are helpful tools to establish workplace rules and expectations.  As long as your handbook uses discretionary language and includes employer flexibility to address each situation as appropriate to the facts, your handbook should not be considered a binding contract.

In the Metelus case, a nursing home was sued for discrimination and breach of contract by three former nursing assistants who were terminated for refusing to follow orders and for poor patient care.  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 →

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 →

Company, Parent Company, Staffing Agency: Who Is The Employer and Who Gets Sued?

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On October 22, 2013, the United States District Court in Boston issued a decision discussing who is the “employer” in a multi-party employment situation. The case, Blanco v. United Comb and Novelty Corporation, involves allegations that employees were not properly paid overtime and is discussed below.

What You Need To Know.  Obtaining labor through a staffing company or through a separate corporate entity will not shield you from wage and hour violations involving the people who do your company’s work.  Even if a company is not technically responsible for the wage and hour violation as an employer, the company may be held responsible for aiding and abetting if it is aware that workers are not being paid their proper wages. Accordingly, a company should make sure all workers performing services for it are being properly paid under state and federal wage and hour laws.

In the case, Isidoro Blanco worked for United Comb through a staffing agency.   Blanco brought suit against multiple companies alleging violation of state and federal wage laws. Continue reading →

The Benefits of an Independent Attorney Investigator

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On October 7, 2013, the United States District Court in Massachusetts issued a ruling discussing the potential problems associated with hiring your defense lawyer to perform investigations into employee misconduct.  The case of Koss v. Palmer Water Department is discussed below.

What You Need To Know.  If you want to conduct an investigation into employee misconduct.  You need to bring in an independent investigator as opposed to your regular defense counsel.  Because the investigator could be called as a witness at a subsequent trial and ordered to turn over all his or her work papers, you don’t want your defense lawyer conducting the investigation, testifying as a witness, and being barred from representing you.

The Palmer Water Department received a sexual harassment complaint brought by one of its employees.  If that happened to you, what to do?  Continue reading →