Massachusetts Wage Act Overview

March 3rd, 2016

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Get the Wages You Have Earned

Here are a few ways employees get cheated:

  • They don’t get all their wages at the end of every pay period.
  • They don’t get time and a half when they work over 40 hours.
  • They work on public works projects but don’t get paid the prevailing wage.
  • They don’t get paid commissions when they are due.
  • They don’t get paid in full on the day they terminate, including vacation pay.

If you’re one of those employees, the Massachusetts Wage Act may provide a way for you to get back three times your unpaid wages.  

Massachusetts has some of the strongest employee rights laws in the country.   If your employer has not paid you your full wages, commissions, vacation pay, overtime, or prevailing wages—and paid you on time—you can sue to get back three times your unpaid wages, and also your attorneys’ fees and costs.    

The first step is to file a wage complaint with the Massachusetts Attorney General’s Office.  You need to do this before suing your employer.  It is best to fill out this claim as soon as you learn you are being cheated, and it must be done within three years of the wage violation.  Otherwise, you waive your right to bring a wage claim.  You do not need to submit any documents, just follow the link below to fill out the online form.

https://www.eform.ago.state.ma.us/ago_eforms/forms/npwc_ecomplaint.action

The purpose of completing a wage complaint is to give the Attorney General’s Office the opportunity to investigate your claim and get back your lost wages for you.   If the investigation results in payment, you’ll get your wages, but not treble damages and attorneys’ fees.  And the investigation can take a very long time.  That’s why you may decide to file a lawsuit. 

After you fill out the wage complaint, you can ask the Attorney General’s Office for a “Right to Sue” letter.  When the letter arrives, you can file a lawsuit against your employer in court.  At this point in the process, or earlier, you may want to find an attorney to help you with your case.  

Because the statute is so punitive to employers, our firm often takes on wage claims on a contingency fee basis.  This means that we will bring the lawsuit on your behalf, in exchange for payment from the settlement you receive from your employer if you win. 

The Rosen Law Office has a great deal of experience bringing successful Wage Act lawsuits.  In the last few years, we have helped a number of employees who were being cheated out of their proper overtime wages, prevailing wages, or both, obtain satisfactory settlements with or judgments against their employers.  If you think you’ve been cheated, you should call for a free consultation.    

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Dental Board to Start Random CEU Audits

June 10th, 2015

dentThe Board of Registration in Dentistry is going to start doing random audits to make sure dentists and hygienists have met their continuing education requirements (“CEUs).  

In the past, the only way the Board knew if someone was up to date on their CEUs was if there was a complaint.  In the course of the investigation, they would routinely request proof of attendance at the various required courses.  Starting in the fall, the Board will do random audits.  The goal is to hit 5 percent of the licensed dentists and hygienists every year.  

When dental professionals renew their licenses, they have to certify that they have satisfied their CEU requirements.  Dentists have to take 40 CEUs every two years; hygienists need 20 units.  Dentists are required to include courses in infection control and pain management.  It’s easy to miss the pain-management requirement, because it’s not in the regulations.  You can find it here.  The dentist or hygienist should also take a CPR course. 

Dentists who fall short are in double-trouble.  They’ve violated the CEU requirement, and they’ve also lied on their license renewal form.  If there are no other violations, the Board will often impose “stayed probation.”  That’s a nondisciplinary sanction.  If the dentist makes up the missing credits and stays out of trouble for a year, there won’t be any indication of public discipline when someone looks up the license, and there won’t be any report to the national data bank.  But the investigators may find some other concern, and when the issues start to add up, the sanction can be more severe.

The current license renewal cycle runs from April 1, 2014-March 31, 2016.   The Board is going to be more conscientious in checking CEUs than it was in the past, so make sure you are more conscientious about taking all your courses.

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The Dental Board’s First Look at Your Case

May 12th, 2015

Here’s an article Joel wrote for the Journal of the Massachusetts Dental Society in the summer of 2014. Since then, the Board has decided to schedule cases in advance, and you’re told where your case will fall in the order. But otherwise this is a fair summary of what you can expect at your first trip to the Board of Registration in Dentistry.

 

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Let’s say a patient has complained. You’ve received a letter from the Board of Registration in Dentistry (BORID). Your lawyer has responded with a complete explanation, and you’ve kind of forgotten about the whole thing. Then one day, you get this letter telling you that in one week the Board will meet in executive session to consider the complaint.

There’s no reason to panic. The letter is not necessarily bad news, and at worst, the Board’s new procedure will give you a better understanding of your case.

When the Board gets a complaint, it generally asks the dentist to respond and provide relevant documents. After the dentist replies, it can be months before anything happens. But eventually, the Board has to decide what to do about the complaint, and that’s when the letter will come.

In the past, the Board dealt with most complaints in open session. These would be listed on the agenda. But dentists don’t always consult the Board’s website and might not have known their case was on. The next thing the dentist would hear was either that the case was dismissed or that the Board was taking it further.

Things are different these days. Now, you are more likely to get a letter saying that the Board is going to consider the complaint against you in “executive session”—a closed hearing. You have the right to be present, to speak on your own behalf, and to make a recording or transcript. You may bring a lawyer. The lawyer is not entitled to participate actively. His or her main job is to prepare you, observe the proceedings, and advise you about your rights.

The open meeting law allows the Board to meet in executive session to discuss “the discipline or dismissal of, or complaints or charges brought against . . . [an] individual.” You would think, from this, that the Board is concerned with protecting the reputation of a dentist who may not have done anything wrong. And the closed sessions do serve that purpose. But the main goal is to preserve patient confidentiality.

It’s impossible to discuss your treatment of a patient without a risk that protected health information will be disclosed. When a specific patient isn’t involved—let’s say your dental hygienist forgot to renew her license—the Board will discuss the matter in open session.

What to Expect at the Board Meeting

The meeting opens at 8:30 a.m. at BORID’s headquarters at 239 Causeway Street in Boston. Cases are called in the order that people sign in, so get in line early and try to sign up about 15 minutes before the proceedings begin. The Board meets first in open session to discuss general business. After an hour or two, there will be a motion to enter executive session, and the public will leave the room. Depending on when you signed in, you may have an hour or more to wait.

When your case is called, you and your lawyer will sit at a desk near the Board’s conference table. You will have discussed in advance what you will say, if anything. The Board investigator will make a presentation about what regulations you may have violated and what evidence there is.

Although you’ve already received some indication of what your case is about, the investigator may have discovered facts that will come as a surprise to you. The executive sessions are recorded, so if you choose to speak, those words may come back to haunt you. If something surprises you, it’s probably better to remain silent than to blurt out an ill-considered explanation.

Although an appearance before a licensing board can be nerve-wracking—try not to worry. The large majority of cases don’t result in public discipline. Dentists frequently are in and out of the boardroom in a few minutes, smiling and shaking hands with their lawyers.

By the Number

Jeffrey Mills, the Board’s assistant executive director, was kind enough to provide the following statistics from the Board’s files regarding the period between June 1, 2013, and May 31, 2014. The Board closed 170 complaints during that time. Of these:

• 26 were dismissed

• 22 were dismissed with an advisory letter

• 69 resulted in stayed probation (non-disciplinary)

• 10 resulted in a reprimand

• 35 resulted in probation

• 5 resulted in suspension (one was summary suspension)

• 3 resulted in voluntary surrender

Only 32 percent of the complaints resulted in public discipline, which is reportable to the National Practitioner Databank. Fewer than 5 percent of the complaints resulted in the temporary or permanent loss of a license. There was only one summary suspension. That happened to be my case, and it was dismissed after a hearing, so really there were only four suspensions, or a little more than 2 percent of the cases.

Four Reasons to Show Up

With few cases resulting in serious discipline, you may wonder whether you should even bother to show up. I think you should, for four reasons.

First, the complaint you responded to may not have given you all the information about your case. The investigator may have discovered something more troubling than whatever was bothering the patient. So a complaint that seems frivolous may result in a serious charge.

Second, and perhaps most important, the investigator’s presentation is your best chance to understand what regulations you may have violated and to hear and see the supporting evidence. This information will help you inform your expert witness and prepare for a hearing. You can also see what the Board thinks of your case. The members may not agree whether there really was a violation and how serious it was. If the Board thinks it’s appropriate to impose a sanction, you will hear why they chose the particular discipline they did. You will have a sound basis to discuss with your lawyer whether to accept the discipline offered or ask for a hearing.

Third, even the Board’s investigators are capable of making a mistake. If there’s an obvious error in the investigator’s presentation, this is your chance to correct it before things progress—if your lawyer thinks that’s wise.

Fourth, and one of the best reasons to attend, is that you don’t have to wait to find out what happened. Many times, the investigator will say a couple of sentences, and the chair will ask, “Does anybody want to open a case?” If no one responds, there will be a motion to dismiss the complaint. It’s worth being in the room to hear the words, “The motion carries.”

 

 

Download a printable version here:

Journal Summer 2014_Risk Management(click to download)

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Prenuptial agreement invalid under ‘second look’ test

January 30th, 2015

joel-rosen By: Pat Murphy January 28, 2015

A prenuptial agreement that would have limited a wife’s share of marital assets in the parties’ divorce to a dilapidated home purchased during the marriage could  not be enforced, the Appeals Court has found.

The husband argued that, under the plain terms of the couple’s agreement, the wife was entitled

only to the marital home, regardless of its condition, in the division of marital property.

But the court was persuaded that, under the “second look” test adopted in 2002 by the Supreme Judicial Court in DeMatteo v. DeMatteo, a change of  circumstances during the parties’ marriage had rendered the prenuptial agreement unconscionable and unenforceable.

“If the agreement is enforced, the wife, who makes $300 per week, would be left without sufficient property and appropriate employment to support herself,” Judge Frederick L. Brown wrote on behalf of the court. “The [trial] judge’s determination that enforcement of the agreement would be unconscionable was not in error.”

The decision affirmed a judgment by Probate & Family Court Judge Amy L. Blake awarding the wife $400,000 for what the Appeals Court characterized as a “principal residence substitute.” The seven-page decision is Kelcourse v. Kelcourse, Lawyers Weekly No. 11-007-15. The full text of the ruling can be found by clicking here.

Wake-up call?

Joel Rosen of Andover represented the wife, Rebecca Kelcourse. Rosen rejected the notion that

the decision in his client’s favor is an indication that Massachusetts courts are less inclined to

enforce prenuptial agreements.

“Prenuptial agreements are pretty strictly enforced in Massachusetts,” Rosen said.  “You have to

make a very strong showing before a court is going to invalidate one.”

He added that his client’s case is instructive because it illustrates just what it takes under theDeMatteo standard before courts will substitute their judgment for the contract the parties enter.

“It’s a pretty high bar,” Rosen said. “Either you have to prove that circumstances have changed so much that they are beyond what the parties contemplated when they signed the agreement, or you have to prove that the wife is essentially going to be impoverished.”

The husband, Lawrence Kelcourse, was represented by William M. Driscoll of Chelmsford. Driscoll did not respond to a request for comment prior to deadline.

 

But Wellesley family law attorney David B. Feldman called Kelcourse a “very significant”

decision on the enforceability of prenuptial agreements.

“Every few years the courts need to give lawyers a wake-up call to the fact that, if the agreement is unconscionable at the time one of the parties seeks to enforce it, the courts won’t enforce it,” Feldman said.

The case underscores the point that the Probate & Family Court first and foremost is a court of equity, he said.

What attorneys need to take from Kelcourse is the understanding that a prenuptial agreement is not automatically enforceable just because both sides had an attorney and both sides entered into the contract freely with full disclosure of assets, Feldman said.

“Even when on the face of it the agreement was properly done, it’s not going to be enforceable if it’s totally unfair,” he said.

Cambridge lawyer Rackham Karlsson said the Appeals Court ruling illustrates that, if the second look shows that a party is not going to be able to support him or herself post-divorce, agreement is going to fail.

“One of the things that [the SJC] was considering in determining in whether a prenuptial agreement was valid in DeMatteo was the public policy of not putting people on public assistance,” Karlsson said. “That public policy overrides strict adherence to the letter of the agreement.”

Lawyers may be fooling themselves if they think they can draft a prenuptial agreement that will necessarily hold up under each and every circumstance, he said.

“The best we can do is express the intent [of the parties]. A prenuptial agreement has concrete terms, but those concrete terms are grounded in an intent. If the circumstances at the time of divorce are too far out of alignment with that intent, then the courts will try to step in and fix it,” he said.

Money pit

The husband is a businessman who owns and operates a marina. For five years preceding the

parties’ marriage in July 1991, they lived together in a three-bedroom residence in the marina. At the time of the marriage, the husband was in his 40s, while the wife was in her mid-20s and pregnant with the second of the couple’s three children.

Several months before their wedding, the parties rented a home in Amesbury. The husband allegedly promised the wife at the time that the rental would be temporary.

Four days before the wedding, the parties executed a prenuptial agreement that waived the husband’s and the wife’s interest in all premarital property separately owned by the other spouse. Each party was represented by counsel.

The agreement further provided that any principal residence purchased during the marriage would be deemed the wife’s separate property. The agreement made no provisions for either the payment or waiver of spousal support.

The landlord of the Amesbury home eventually agreed to sell the property. A home inspector hired by the parties determined that the house needed an estimated $80,000 to $100,000 in repairs. The wife claimed that she agreed to buy the home based on the husband’s promise that he would secure funding to make the necessary repairs.

With the wife’s consent, the parties purchased the home in 2006 for the discounted price of

$320,000.

Repairs were never made to the home, and the couple separated in 2010, with the husband moving back to the marina residence.

 

Including the residence, the marina was valued at $1.7 million. While the marina was unencumbered by a mortgage, the marital home in Amesbury was subject to a $256,000 mortgage.

Moreover, the house had deteriorated further since the parties had purchased it in 2006. In addition to having boarded-up windows, chipped paint and hanging utility wires, the property was rodent-infested and had a black mold problem. It was later estimated that the home needed

$300,000 in repairs. An appraisal conducted after separation determined that the home was worth

$190,000, which was $66,000 less than the amount owed on the mortgage.

The wife filed for divorce in August 2010. The trial judge awarded the wife, who had employment income of $300 a week, $1,352 a week in alimony.

However, Rosen said because the wife’s alimony terminated upon the husband reaching full

retirement age, and the husband was 65 at the time of trial, his client was receiving no alimony.

‘Second look’ at prenup

The trial judge also awarded the wife $400,000 in the division of marital assets.

The husband contested that award on appeal, relying on the language of the parties’ prenuptial

agreement.

The Appeals Court concluded that the $400,000 award was justified under the “second look” test as a “substitute” for the principal residence the wife was entitled to under the terms of the

parties’ agreement.

Under DeMatteo, a prenuptial agreement valid at the time of execution will not be enforced at the time of divorce if, due to a change of circumstances, enforcement would leave the contesting spouse without sufficient means of support.

The trial judge found that the parties’ prenuptial agreement was valid at the time of execution, but found it unenforceable upon taking a second look in their divorce case. Specifically, the judge found that that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated in 1991, and that enforcement of the agreement would, therefore, be unconscionable.

The Appeals Court concluded that there was sufficient evidence to support the trial judge’s determination that the prenuptial agreement was unenforceable under the second look standard. “Crucial to this finding is that enforcement of the agreement would, as the [trial] judge noted, leave the wife ‘a house with negative equity, with documented structural issues, with documented code violations, and with needed repairs and/or renovations approximated to be upwards of $300,000,’” Brown wrote.

With the prenuptial agreement deemed unconscionable and unenforceable, Brown next examined

the trial judge’s consideration of the statutory factors for dividing the marital property.

Brown concluded that the trial judge properly applied the factors enumerated in G.L.c. 208, §34 in awarding the wife $400,000.

“The [trial] judge considered, inter alia, the wife’s occupation, opportunity for future income, age, and contribution as a homemaker, as well as the needs of the couple’s dependent children,” Brown wrote. “We find no abuse of discretion, or other error of law, in the division of assets.”

 

CASE: Kelcourse v. Kelcourse,Lawyers Weekly No. 11-007-15

COURT: Appeals Court

ISSUE: Was the “second look” test properly applied to declare unconscionable and unenforceable a prenuptial agreement that limited a wife’s share of marital assets to a dilapidated home purchased during the parties’ marriage?

 

DECISION: Yes

 

 

LAWYERS WEEKLY NO. 11-007-15

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What to Do When Subcontractors and Suppliers Ask the Owner for Payment

September 15th, 2013

Stacks of One Hundred Dollar Bills with Small House.When owners discover that their contractor has not paid subcontractors and suppliers, anxiety immediately sets in. Contractors who are not adept at running their businesses end up with cash flow problems and operate on credit. The situation then catches up with them and they stop making payments. Suddenly the owner finds himself being contacted by subcontractors and suppliers who are demanding payment.

The law in Massachusetts is clear; a subcontractor or supplier can only collect against an owner if it records a properly perfected mechanic’s lien. Then he can only expect payment to the extent that money is owed to the contractor at the time the lien is filed. That said, the owner has the right to finish the job. If there are no funds left, the subcontractor or supplier can only go after the general contractor for payment.

Mechanic’s liens in Massachusetts are complicated. They consist of two documents: a Notice of Contract and Statement of Account. After filing these documents, the sub or supplier must file suit within 90 days, or the lien is no longer valid. Contractors and construction companies frequently fail to properly perfect or record their liens. If this occurs, they may be dismissed.

Generally, in MA, liens must be filed within 90 days of when the general contractor or someone working through him was last at the job. If an owner pays subs during the period that others can still record liens, he “pays them at his peril.” For that reason, the owner should record a Notice of Termination with the Registry of Deeds. That starts the clock running and all liens must be filed within 90 days of the recording.

At that point, the owner has a decision to make. Should he file a motion to dismiss the lien because no money is owed to the general contractor, or negotiate with the sub or supplier and pay them something to dissolve the lien? Unfortunately, the answer is, it depends.

In order to have a lien dissolved, your lawyer has to file an application to dissolve the lien with the court, and schedule a hearing. The whole process may take ten hours or more of your attorney’s time. As with any matter before a judge, there is no guarantee that the decision will go your way, even if the facts are on your side.

If the sub or supplier will agree to a smaller amount to pay the general contractor’s debt, it may be worth it to pay and have him sign a release. This may be a preferable and perhaps the only option if the subcontractor still has work to do, or if additional supplies are needed from the same supplier. It is generally more expensive to hire someone new to come in and complete work that has been started by someone else.

On the other hand, the amount owed may be so large that it is more economical to fight it out in court. If money is still owed to the general contractor, then that amount will be distributed pro rata to the subs who have filed properly perfected liens. Unless one can get all of the subcontractors to agree, it is better to obtain a court order decreeing the amount owed and how it should be distributed.

It is extremely stressful for an owner when subcontractors and suppliers start knocking on his door. Given the complexity of the situation, it is advisable for an owner to contact a construction attorney to determine how to best resolve the matter.

-Andrea Goldman

http://www.goldmanlg.com/

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When is your construction employee entitled to the Prevailing Wage?

March 15th, 2012

Not everyone who works on a public construction project in Massachusetts has to be in a union.  However, to prevent ordinary workers from undercutting the unions, non-union shops have to pay their employees approximately what union workers make.   Prior to the start of any public works project, a list of the jobs which are to be employed on the project is submitted to the Director of the Department of Labor Standards.  The Director then determines a rate of wages for certain classifications of jobs.  The awarding authority is then furnished with a schedule of such wages and updates these wages on a yearly basis until the project is complete.  This higher hourly rate is called the prevailing wage and is mandated by the Massachusetts Prevailing Wage Laws, G.L. c. 149 §27.   

If you are in the construction business, you want to pay your workers what the law requires.  A basic understanding how workers should be classified under a Director’s schedule of wages is therefore extremely important.   Failure to correctly classify workers can expose employers to significant fines and expensive lawsuits.  A worker who is not paid the appropriate prevailing wage has the statutory right to bring a lawsuit in his or her own name after initially filing a complaint with the Attorney General.  If successful, the employee is entitled to mandatory treble damages for any lost wages, even if it is the employer’s first offense and/or even if the employer’s violation was unintentional. 

For the most part workers will fall neatly under one of the enumerated categories of jobs on the director’s schedule of wages; however, some workers, despite their job title, perform duties which make it difficult to determine whether or not they should be paid the higher prevailing wage.  For example, workers who deliver materials which are not used in road construction do not generally fall under one of the Director’s classifications.  However, when those same workers are in some way “engaged in construction activity” in connection with a public works project, then regardless of their job title, they may be entitled to the prevailing wage.

While there is no bright line rule for an employer to know whether an employee is “engaged in construction activity,” courts have interpreted this phrase as requiring that there be a “significant nexus between the employee’s work and the site of the construction project.”   In other words, regardless of what your employee’s job title may be, an employer should always ask: What exactly is my worker required do at the public works site?   If your employee is required to perform any type of labor on site or in connection with the construction project, that employee should most likely be paid the prevailing wage.   The Department of Labor Standards publishes annual topical outlines which are useful to employers seeking guidance on specific worker classifications. The most recent can be found at http://www.mass.gov/lwd/docs/dos/prevaling-wage/interim-topical-outline.pdf 

Peter Fisher

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Masssachusetts Data Privacy Update

February 29th, 2012

Most businesses that handle “personal information” of Massachusetts’ residents (i.e., a resident’s name and financial information, such as driver’s license, credit card number or social security number) must satisfy additional requirements of the Massachusetts data security regulations (201 CMR 17:00, et seq.) by March 1, 2012.  The regulations, which took effect March 1, 2010, require businesses to have adequate protections in place to ensure that such personal information is not disclosed or used in an unauthorized manner.

Businesses must take further steps to comply with the regulations by ensuring that their service providers are also in compliance by March 1, 2012.  Specifically, such businesses must have investigated the adequacy and appropriateness of service providers’ data security policies and practices.  In addition, they must have contracts in place which demonstrate that they are in compliance with the regulations. Service providers may include office cleaning services, payroll companies, internet servers or host providers, or billing companies, as well as others.

Companies affected by this law should check their contracts with their service providers to determine whether the contracts comply with the regulations.  If not, such contracts should be amended as soon as possible.  Simply receiving a letter from your services providers stating that they are in compliance is not sufficient.  It is advisable that the contracts with service providers include additional language to protect your business, such as the following:

  • Include language allowing you the right to audit the service provider’s compliance with the regulations.
  • Require the service provider to inform you of any breach of the regulations
  • Include a clause that requires your provider to indemnify (pay you back) if a claim is made against you as a result of their actions.
  • State that they must return or destroy personal information upon contract termination.
             -by Coale Parker
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How to Avoid Being Sued After You Fire an Employee

February 24th, 2012

Employers must be sensitive to the emotional reactions of employees when they have been fired.  An employee who realizes he may have played a part in his separation will respond differently from an employee who comes to the conclusion that he was discriminated against or fired illegally. There are steps an employer can take to prevent claims for unlawful termination.

When an employee is terminated for unsatisfactory performance, it should come as no surprise.  Unless the performance is egregious, the employee should be notified that his performance must be improved, with guidance as to how to reach specific goals.  This is not a legal requirement, but in most cases, it is more efficient to help an employee correct mistakes rather than replace him.  A better atmosphere in the workplace is created generally, and the employee has been warned if there needs to be a termination later on.

One rule is to always document discussions regarding opportunities for improvement. These interactions should be noted in the personnel file shortly thereafter to have a record of what was said.  It’s a good idea to have the employee sign the written document to show he has received it, and he should definitely receive a copy.

Be consistent. Think about chances you have given other employees to improve and why.  Make sure you provide those same opportunities to employees in similar situations and carry through.  Do not tell an employee that he has ninety days to improve, and then terminate him less than one month later.  Be careful not to create the impression that the employee cannot be fired during the probationary period.  Nothing in these conversations should be construed to change the at-will relationship.  Train your managers so that they are aware of how to deal with performance issues with their staff. Your managers represent the company and are the direct communicators with the employee.   For that reason, they should be given guidelines as to how to deal with problematic employees.

If it feels wrong, it probably is.  Place yourself in the employee’s shoes.  How would you react if you were told you were being terminated?  If you would be surprised, then more steps should be taken before you fire the employee.  Finally, seek legal advice before taking action.  If you are uncertain about the legality of the termination, it makes sense to talk to someone who deals with these situations every day.

–Kavita Goyal

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Why You Need a Social Media Policy

February 8th, 2012

Internet use by employees is a hot topic for most employers.  In addition to the issue of access during work hours, companies face the use of their name in employee blog posts, tweets, Facebook and LinkedIn.  They need to be able to control the content and timing of messages so that proprietary information is not revealed and their image is not damaged.  At the same time, they do not want to interfere with an employee’s first amendment rights.  Even well-meant postings can be damaging.

The purpose of a social media policy is to put the employee on notice as to the employer’s expectations with regard to Internet use.  The employee should know that the policy will be modified as technology develops and changes.  Clear cut guidelines help to prevent misunderstandings and serve to protect the employer. They provide a basis for termination if it is ultimately necessary.

Companies vary widely in their policies regarding employee involvement in the Internet, but one thing is certain:  it is better to put your employees on notice regarding your social media policy rather than facing an unforeseen problem and dealing with it after it occurs.

Employees must first understand that they do not have any right to privacy on their computers at work.  Whatever they write can and may be reviewed by the company.  They are never allowed to reveal confidential or proprietary information.  In addition, they should know the company standards with regard to use of its name.  Some may require prior approval before an employee posts any information regarding the company.  In others, the employer may simply require that the employee state that any posting represents his own views and not that of the employer.  Employees should only write about areas within their control or areas of expertise and should make clear what their position is at their company.  They should keep abreast of company guidelines for using blogs, Twitter, Facebook or LinkedIn.

Workers may never use the internet to make discriminatory or offensive statements about someone.  They should not post political opinions or religious beliefs in the name of their employer.  Pretending to post in the name of another employee should serve as an immediate ground for termination.  Online behavior must reflect the company’s standards and values.

–Andrea Goldman

 

 

 

 

 

 

 

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The Art of Termination

February 6th, 2012
  1. Keep records.  You should be clear in your own mind about why you are terminating the employee.  Unless there is some egregious conduct—fighting, stealing, drug use—you should have written records providing some notice to the employee of the problem and the opportunity to improve.  These records aren’t required, but they will support you if there is a challenge later.  Even if there has been misconduct, you should have a meeting where the employee can give his side of the story.  Take good notes.
  2. Consider the risk.  Unless the employee is in a union or the civil service or has a contract, you can probably end the employment at any time or for any reason.   But you cannot fire an employee because of race, national origin, religion, sexual preference or gender identity.  And you can’t retaliate because an employee has demanded a legal right—like overtime pay or medical leave—or has refused to violate the law.  If you think you may be accused of discrimination or retaliation, be sure you have a sound business reason for what you are about to do and that your treatment of this employee is not more severe than that of other employees who have performed in a similar way.  If you think there may be a claim, contact a lawyer before beginning termination.
  3. Take action.  Nobody likes firing people.  Once you have made the decision, do not delay in order to avoid an unpleasant confrontation.   Just get the termination over with.
  4. Be brief.  An employee who is about to be terminated is rarely surprised.  Avoid awkward prefaces or confessions of your own discomfort.  A good way to start is, “You are being terminated.”  You do not need to give a reason; the employee already knows.  But if you do give a reason, it should be the real reason and should be phrased as succinctly as possible, without anger or regret.  You should not engage in a debate and you should never accept any part of the blame.  The meeting should not take more than ten minutes.
  5. Offer severance.  This is not required, but it’s a nice thing to do if you can afford it.  You can condition a severance payment on the signing of a release.  Especially if you think you may be sued—even if there is no sound basis to do so—a few weeks’ pay is a lot cheaper than fighting a lawsuit or administrative complaint.  Talk to a lawyer before asking for a release and make sure that it has the revocation and waiting periods the various statutes require.
  6. Pay in full.  You have to pay the employee in full on the last day of work.  This includes pay for vacation days the employee was entitled to, but did not receive and commissions and bonuses that are due.  If commissions are going to be due in the future on sales the employee made, you may be required to pay them after termination.
  7. Provide notices.  If the employee is on your health plan, make sure you provide the required COBRA notices that permit coverage to continue.   You also need to provide a notice (which you can get from the state) on how to apply for unemployment benefits.
  8. Protect both parties.  The reasons for termination are ordinarily no one’s business but the employee’s, so share as little information as possible with other workers.  Avoid marching him past his coworkers, standing by as he empties his desk, or taking any action that may embarrass him.   Schedule the meeting for the end of the day. Make sure he surrenders his laptop, passwords, keys, cell phone, etc. and does not take any of the company’s documents or information with him.   Immediately change passwords so he cannot access the computer system.
  9. Question unemployment.  The unemployment system is there to provide a safety net.  But someone who is guilty of misconduct or who violates a uniformly enforced rule cannot collect benefits.  When you receive a form from the state Department of Unemployment Assistance, explain the reason for termination.  Obviously, it should be the same reason you gave the employee.  If you disagree with the Department’s decision, consider filing an appeal.
posted by: joelrosen in BUSINESS, BUSINESS ADVICE & LITIGATION, EMPLOYMENT & DISCRIMATION | No Comments