EMPLOYMENT LAW
06/25/07
Working papers for Massachusetts minors
Is it a requirement for a 15- year old to get working papers in the state of Massachusetts?
In general (and with limited exceptions), a 15-year old does need such papers if he or she wants to work. Massachusetts closely regulates the employment of minors. On January 3, 2007, significant amendments were made to the Massachusetts Child Labor Laws. The amendments were effective immediately. The amendments affect minors' working hours, provide for certain additional required supervision, streamline the work permit process, strengthen existing criminal penalties, and also allow for civil penalties in the event of violations. A complete summary of the Massachusetts laws regulating child labor, including the recent changes, may be found on the website of the Massachusetts Department of Labor.
Prior to January 3, 2007, Massachusetts law generally required work permits for 14- and 15-year olds, and educational certificates for 16- and 17-year olds. As a result of the new legislation, there is now a single application and permit process for all workers ages 14-17. In general, all persons under 18 years of age must complete a work permit application and obtain a work permit before starting a new job.
-- DAVID HENDERSON
Dealing with an employee who threatens to sue
I have a new employee who's only been with my company for two weeks and in this time I've had serious difficulty with her work habits, attitude, insubordination and threats to sue. I've carefully been documenting each and every event that has occurred. Do I have the legal right to terminate her employment this soon into her employment with my company?
You might want to focus first on the threats to sue. The company needs to understand as much as possible about why the employee thinks she has a basis for suing, and that normally means sitting down with the employee and discussing whatever it is that she thinks is wrong with her new workplace. Keep in mind that certain types of "threats" (even from an employee with whom you otherwise are having problems) may constitute complaints of unlawfulness that obligate the employer to investigate the underlying situation and perhaps take remedial action. A threat to sue for unlawful discrimination or harassment (or some other inappropriate circumstance) may be legitimate. Failure to conduct a needed investigation and/or correct an unlawful situation can result in considerable liability. As a result, if there actually is something unlawful about your workplace, you need to correct that situation before you get too far into the process of firing the complainer. "Voices crying in the wilderness" are not always wrong.
It also is a good practice under many circumstances that you not merely document the employee's work problems but also ensure that you are counseling the employee about those problems as they develop, so that, whenever possible, the employee has a fair chance to correct them.
In general, however, a private employer in Massachusetts has a right to terminate the employment relationship at any time and for any reason, provided (a) there is no contractual obligation to the contrary and (b) the motivation for the termination is not unlawful (e.g., because of the employee's sex, national origin, race, etc.). This general rule of employment-at-will normally applies even in the first two weeks.
--DAVID HENDERSON
Asking about employees' medical conditions
What can employers ask and not ask an existing employee about their medical conditions or doctor appointments?
It depends. Your question does not indicate whether the employer has a legitimate business reason for asking such questions. For privacy reasons, it generally is best practice not to ask employees for specific information about a medical condition or about whether he/she needs to see a doctor. One reason is that the Massachusetts Privacy Act protects individuals from "unreasonable, substantial or serious" interference with privacy. Also, unnecessary questions about and individual's health issues can be perceived in some circumstances as a suggestion of possible handicap or disability discrimination. As a result, a court facing the situation suggested by your question most likely would (a) balance the employer's legitimate need for the information against the employee's need to maintain privacy, and (b) also consider the employer's ability to use alternative information to satisfy any legitimate need. In other words, is the employer's inquiry both job-related and consistent with business necessity?
But this does not mean an employee never has to provide medical information to his or her employer. If, for example, the employer is covered by the Family and Medical Care Leave Act (FMLA), then the employer's right to obtain such otherwise private information in appropriate circumstances is established by federal statute and regulation.
--DAVID HENDERSON
Providing employment verification
Is there a Federal Law that requires a former employer to provide employee verifications to a new employer? If not, can employment verification be withheld? Also, what must be given to verify employment if there is such a requirement?
I am aware of no federal law that governs this area. This means that each employer generally can set its own policy about the information it will release, and that there is no limit on the information that the employer can withhold in response to a private request.
As you may expect, actual practices in this area vary widely. To minimize their own possible legal liability, many companies have a policy stating that the only response to a request for such information will be to confirm the period of previous employment and the last position held by the former employee. The general concern is that employees who do not approve of information released by a former employer may claim that they have been unlawfully defamed. Even when such claims are frivolous, they can be expensive to defend.
--DAVID HENDERSON
Background, criminal record checks of candidates
We are considering hiring our first employee. What questions can we legally ask about a candidate's criminal background, and what hiring decisions are we entitled to make if a candidate has a criminal record?
Initially, make sure you have the applicant complete an application form that correctly incorporates Massachusetts law. More and more employers are also initiating background checks of all prospective employees not only as a means of hiring the most qualified workers but also to avoid costly, dangerous, or deadly mistakes.
If an employer hires a violent employee without doing a background check and someone is harmed, the employer may be liable for negligent hiring. These claims often allege that an employer failed to perform a simple background check that would have prevented the employee's hiring. Evidence that an employer conducted a background check can be a defense to this claim. Background checks can discover applicants' violent histories, as well as financial improprieties relevant to many jobs involving monetary transactions, driving violations (including DUI), sex offenses and other behaviors that may predict future problems at work.
Employers must take care not to use prohibited information when making employment decisions. Massachusetts law prohibits employers from using an applicant's arrest record in making employment decisions if the arrest did not result in a conviction. A Massachusetts employer also may not base employment decisions on first convictions for misdemeanor drunkenness, simple assault, speeding, minor traffic violations, or disturbing the peace. If a misdemeanor conviction occurred more than five years ago with no convictions since then, an employer may not consider that misdemeanor in making employment decisions. However, criminal convictions and prison sentences for felonies may be considered.
An employer conducting a background check on an applicant must comply with the federal Fair Credit Reporting Act ("FCRA") if it uses an outside Consumer Reporting Agency ("CRA") to perform the search. The FCRA allows CRAs to report most kinds of information, including criminal records, going back seven years. Prior to obtaining a consumer report, an employer must first make a clear written disclosure to the applicant and receive the applicant's written authorization. The disclosure must be a document separate from the job application.
If an employer finds negative information in a report, it may decide not to hire the applicant. Before the employer takes such an adverse action, the applicant must receive a copy of the report and a summary of their rights under the FCRA.
--MIKE BROWN
with Beth Gobeille
Management and tips in fast food outlets
The Massachusetts wage and hour laws regarding tips state that under no circumstances may management or owners receive any portion of their employees' tips. Does this relate to convenience store and fast food outlets, such as Honey Dew or D'Angelo shops? How do I define management?
Massachusetts law strictly defines the types of employees allowed to share in tips. In order to share in tips, an employee must provide customer service and have no managerial responsibility. Any employee with "managerial responsibilities" who takes a share of employee tips risks civil and criminal penalties including up to $25,000 in fines and up to one year in prison. Cautious owners and managers, then, should keep their hands out of the tip cup.
The Massachusetts tips statute applies to "wait staff employees," "service employees," and "service bartenders." The first category, wait staff employees, includes counter staff in restaurants or other places serving food and beverages which directly serve patrons. The second category, service employees, covers occupations other than food and beverage service where employees provide customer service and customarily receive tips.
Fast food employees serve food to customers and customarily receive tips. Convenience store clerks might fall into either category, but there is a stronger argument that they are service employees. While there are no decisions on point, the tips statute probably covers both groups.
When a fast food or convenience store patron puts change in a tip cup, she intends that tip to go to the employee or employees serving the patrons. The patron does not intend the tip to go to the managers. The problem is that in a fast-food establishment or convenience store, employees with managerial responsibilities often serve customers as well. Even if a manager directly serves a patron and the patron puts change in a tip cup, the statute forbids the manager from sharing in the tips.
Deciding which employees are managers can be complicated. The statute does not limit its prohibition on sharing in tips to those with the word "manager" in their job title. Instead, the statute talks about "managerial responsibilities" such as disciplinary power, scheduling authority, and the ability to direct what other employees are doing on an ongoing basis. If an employee who is not technically a manager but who frequently supervises others, he or she may not share in tips.
In deciding which employees may share in tips, one should ask three questions:
(1) Does the employee have the power to hire, fire, or discipline other employees?
(2) Does the employee have authority over scheduling, including calling in more employees or telling some to go home early? and
(3) Can the employee direct what others do during the workday?
If the answer to any of these questions is "Yes," that employee has managerial responsibilities and cannot share in tips without violating the statute.
--MIKE BROWN
with Beth Gobeille
Company liability for employee parties
If a department gets together outside of work, is the company liable for any incidents that might occur? For example, what if a department group goes out and drinks too much, then someone gets in a car accident and there are injuries, or worse. Is the company liable?
Occasionally, groups of employees might have a party or go to a bar together after hours. Assuming these gatherings are not company-sponsored and the company does not buy or control the alcohol, there should be no company liability for any resulting injuries.
The situation could become more complicated when a supervisor joins such employee gatherings. Is the supervisor acting as a company representative, turning this private gathering into a company-sponsored event? To incur liability, the company (acting through the supervisor) would need to supply or control the alcohol. If the supervisor does neither, the company should not be liable for any resulting injuries. However, if the supervisor buys drinks to, for example, congratulate an employee for a job well done, the company may be liable for any ensuing alcohol-related injuries. As a result, cautious employers should let supervisors know that buying or supplying alcohol at these informal gatherings can be risky.
More frequently we are queried about an employer's liability for alcohol-related injuries occurring after a company-sponsored party. This liability depends on a number of factors.
The traditional rule is that selling or giving alcohol to ordinary, able-bodied people does not lead to liability for injuries because it is the drinking of liquor, and not the furnishing of it, that leads to injuries. Massachusetts has added to this traditional rule, finding a host liable for injuries when the host actually has control of the liquor supply and can monitor guests' alcohol consumption. All hosts are liable if they sell or give liquor to someone under the age of twenty-one.
A company party, especially one where alcohol is available, can also be a setting for unacceptable behavior, sexual advances, and other potentially unlawful conduct. To protect against liability, employers should redistribute their sexual harassment policy before the party takes place, and emphasize that the guidelines will apply at the party. Also, remind supervisors to set a professional example, keep an eye on employee behavior, and not invite co-workers to an informal setting after the company gathering.
Keep in mind that an employer may be responsible for the actions of non-employees invited to a company party where, during the party, the employer knew or should have known of unlawful conduct and failed to take immediate and appropriate corrective action. Therefore, an employer should not ignore the conduct of non-employees such as clients, customers, vendors, spouses, or relatives.
If an employee is injured at a company party, worker's compensation liability may arise. While intoxication is a defense to these claims, the defense may not apply if the employee is injured at an employer-sponsored recreational event. It is less likely that employees can collect benefits for such injuries if they are not paid for their attendance at the party (i.e., the party is not during work hours) and if party attendance is optional and not required.
If an employer serves alcohol at a company party, there are steps to take to reduce potential liability. First, do not make attendance mandatory. Also, consider distributing a limited number of drink vouchers or having a cash bar rather than having a no-limits open bar. Further, offer plenty of non-alcoholic beverages and starchy foods to slow alcohol absorption. Close the bar at least one hour prior to the end of the party. Instruct servers and bartenders not to serve anyone who appears intoxicated and to inform company representatives if such an event occurs. Finally, consider making cab vouchers or designated drivers available to inebriated employees. Although employers cannot guarantee that company parties will not lead to liability, these steps should reduce the risks.
--MIKE BROWN
with Beth Gobeille
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