Massachusetts Employment Law Update -- March 2015
Thomas D. Herman, Esq., Smith Duggan Buell & Rufo LLP
Massachusetts employers need to be aware of a number of recent developments in Massachusetts employment law that affect their business and their employees, and should update their employment handbooks and practices accordingly.
Among these changes, all employers with Massachusetts employees should be prepared to deal with the following:
EARNED SICK TIME FOR ALL EMPLOYEES
All Massachusetts employers will be required to provide sick time to their employees, including part-time employees, starting July 1, 2015. For employers with 11 or more employees, sick time must be paid; smaller employers must provide sick time, but are not required to pay for it. Sick time accrues at a rate of one hour for every 30 hours worked. Employees may take and carry over up to 40 hours of sick time in any calendar year. Employees will be able to use their earned sick leave, in increments as small as one hour, for the following purposes: 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; to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse, and for other related reasons. Employers are not required to pay unused sick time at termination. Employers with existing paid time off policies may need to revise them to ensure they provide the same benefits the new law requires.
PARENTAL LEAVE FOR BOTH MALES AND FEMALES
Massachusetts law extends mandatory, unpaid maternity leave to both males and females, starting April 7, 2015. The law applies to all employers with six or more employees. To be eligible, employees must have completed three consecutive months of full-time employment, or a probationary period designated by the employer of the same or shorter duration. An employee must provide the employer with two weeks notice of the anticipated departure date (except where the need for leave is unanticipated), and state his or her intention to return to work. Generally (with some exceptions), employees returning from leave must be reinstated to the same or similar position, with the same status, pay, length of service credit and seniority. If both parents work for the same employer, they are entitled to eight weeks of leave in the aggregate for the birth or adoption of the same child. In addition to leave for the birth or adoption of a child, an employee may take leave in connection with the intention to adopt, or when a child is placed with the employee pursuant to a court order. (This leave runs concurrently with the federal Family and Medical Leave Act (FMLA) for employers who are subject to it, but also cover employees not yet eligible for FMLA.)
MINIMUM WAGE INCREASED
Massachusetts minimum wage increased to $9.00 per hour for all non-tipped employees and to $3.00 per hour for tipped (Service Rate) employees as of January 1, 2015. The minimum wage law applies to all employees except those being rehabilitated or trained in charitable, educational, or religious institutions; members of religious orders; agricultural, floricultural, and horticultural workers; those in professional service; and outside salespersons not reporting to or visiting their office daily. Wait staff, service employees and service bartenders may be paid the service rate if they regularly receive tips of more than $20 a month, and if their average hourly tips, when added to the service rate, are equal to or exceed the basic minimum wage. The minimum wage increases to $10.00 per hour and the Service Rate to $3.35 per hour on January 1, 2016.
DOMESTIC VIOLENCE LEAVE
Since August 8, 2014, Massachusetts employers with 50 or more employees must permit employees up to 15 days of unpaid leave in any 12 month period for medical attention, counseling, victim services, to seek legal assistance, find housing; obtain a protective order from a court; and other related reasons if the employee or a family member is a victim of domestic violence or sexual assault.
PRESUMPTION OF RETALIATION: UNEMPLOYMENT HEARING TESTIMONY
Effective March 24, 2015, Massachusetts unemployment law creates a rebuttable presumption of employer retaliation against an employee who is terminated or suffers any substantial alteration in the terms of employment if: (1) an employee participated in an unemployment proceeding by providing evidence or testifying at a hearing, and (2) the employer either substantially altered the terms of employment or terminated the employee within six months after the employee’s participation in the proceeding or hearing. The presumption of retaliation may be defeated only by showing clear and convincing evidence that the employer’s actions were not a reprisal against the employee and that the employer has sufficient justification independent of the action. Under the new law, the retaliation action may be remedied through rescission of any adverse alterations in the terms of employment, reinstatement, or damages, with costs and attorney fees paid by the employer.
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BE SURE TO UPDATE YOUR EMPLOYEE HANDBOOK
All Massachusetts employers are best served by having an up-to-date employee handbook, tailored both to your particular business and to Massachusetts law (or such other state(s) where they have employees) that addresses these and other developments in the law. We encourage you to check your handbook to ensure it covers these and other important issues. Take care also to ensure, among other things, that the handbook includes various disclaimers throughout so that it cannot be interpreted as a contract of employment, permits some flexibility in disciplinary actions, does not illegally ban use of personal e-mail during working hours, provides appropriate social media policies, includes the correct equal opportunity protected category statement applicable to Massachusetts (or other state), etc. Be careful in relying on handbook forms you might find online: they may not be customized to address each state’s legal requirements. Employment law, in Massachusetts and elsewhere, is a dynamic area of law and frequently in flux.
If you would like more information or have any questions about Massachusetts employment law or general corporate law matters, please contact Tom Herman at 617-228-4400 or email him at: firstname.lastname@example.org.