Massachusetts is renowned in the country for having in place a web of laws that govern the employment relationship. Many obligations require annual compliance. The beginning of the New Year is always a good time for employers to make sure they do the following to minimize risk:
1. Ensure that employees are properly classified.
Both federal and state laws strictly regulate an employer’s classification of its employees; violations carry severe penalties. Employers should review their arrangements with workers to ensure the following:
- That exempt, “salaried” employees are properly classified as such under the FLSA;
- That the employer is not misclassifying employees as independent contractors;
- That the employer is complying with applicable minimum wage and over-time requirements for non-exempt employees.
2. Update and distribute anti-harassment policies.
Massachusetts requires every employer with six (6) or more employees to annually distribute a written policy prohibiting sexual harassment in the workplace. Because other forms of harassment are also unlawful (i.e. racial harassment), we recommend that these policies be written to include all forms of unlawful harassment.
3. Update and distribute employee handbooks.
The laws governing employment are constantly changing; every employer should conduct an audit of its handbook annually to ensure that it is up-to-date.
4. Ensure that personnel records are complete and up-to-date.
Although only employers with 20 or more employees are required to maintain personnel records in Massachusetts, we recommend that every employer do so. Employers should annually review their files to confirm that they are up-to-date and include all information required under Massachusetts law. This includes, for example, compensation information, performance evaluations, disciplinary notices and the like.
Since August 2010, employers also must notify an employee within ten (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." Employees must be given an opportunity to review their record.
5. Ensure all Non-Solicitation, Non-Competition Agreements are up-to-date
Employers must be vigilant in reviewing and updating non-competition and non-solicitation agreements when any material aspect of the employee’s work has changed or when the employer’s business undergoes significant changes, such as changes of ownership. And because the laws governing these agreements continue to evolve, employers must monitor their existing agreements to ensure that when the employee leaves, the agreement is enforceable.
6. Understand the recent CORI reforms
For those employers who conduct criminal background checks on job applicants, it is imperative to fully understand and comply with the many recent changes to the state’s CORI laws. The following are highlights:
- The state now maintains a public database containing certain limited criminal record information about all individuals; private employers may, in certain circumstances, seek access to more detailed criminal record information.
- 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.
- There are a number of requirements that employers must follow in storing CORI records.
Margaret H. Paget is a partner in Boston law firm Sherin and Lodgen LLP and co-chair of the firm's Employment Law Group. She represents clients in all areas of employment law, including civil litigation. Margaret represents private businesses, not-for-profit organizations, educational institutions, and health care providers and has significant trial experience before both state and federal courts, administrative agencies, and in arbitration.
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