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Key considerations Which issues would you most highlight to someone new to your state? Practitioners new to Massachusetts should pay careful attention to the employment relationship. Massachusetts employment discrimination laws differ in a few key ways from federal law. Massachusetts state courts will not hesitate to diverge from federal precedent where:
- material differences between the Massachusetts statute and the federal statute exist;
- a legislative directive which states that M.G.L.A. c. 151B is to be applied liberally exists;
- the legislature in M.G.L.A. c. 151B, § 2 expressly delegates authority, empowering the Massachusetts Commission Against Discrimination to act forcibly in order to implement the statute and eliminate discrimination at the root level; or
- the court has afforded deference to Massachusetts Commission Against Discrimination policies and decisions based on the authority granted to the agency by the legislature (Brown v. F.L. Roberts & Co., Inc., 896 N.E.2d 1279 (Mass. 2008) and Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 939 (Mass. 2001)).
What do you consider unique to those doing business in your state? Massachusetts has an unemployment rate below the national average. The workforce is generally younger and well educated. These two factors combine to put pressure on wages. In addition, the Massachusetts Commission Against Discrimination has a broad mandate from the state legislature to liberally apply its anti-discrimination statutes. Employers entering Massachusetts from less restrictive states should be prepared to review all human resources policies and their accompanying training materials.
Is there any general advice you would give in the labor/employment area? As in most New England states, the Massachusetts Commission Against Discrimination is very active in investigating complaints and in holding hearings and issuing penalties under its statutory enforcement mandates. Practitioners new to Massachusetts should become familiar with the variances of Massachusetts law over federal law and adjust their policies accordingly.
Emerging issues What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy? The U.S. District Court for the District of Massachusetts recently held that companies employing the Faragher-Ellerthaffirmative defense waive their attorney-client privilege with respect to documents generated and statements taken during an attorney’s investigation of the complaint (Koss v. Palmer Water Department, Civil Action No. 12-30170-MAP (D.Mass. October 7 2013)). This decision could alter the way companies perform initial investigations of harassment and discrimination complaints.
Temporal proximity continues to be a hotly litigated issue. In dismissing a case where the plaintiff pled that she was terminated while on family and medical leave, the First Circuit held that temporal proximity alone is not enough to show causation. The court held that while temporal proximity is one factor from which an employer’s bad motives can be interred, by itself, it is not enough—especially if the surrounding circumstances undermine any claim of causation (Carrero-Ojeda v. Autoridad de Energia Electrica, No. 12-2133 (1st. Cir. June 20 2014)).
Proposals for reform Are there any noteworthy proposals for reform in your state? The governor’s office recently announced an effort to ban non-compete agreements, regardless of duration or geographic scope. Under the governor’s proposed bill, agreements for non-solicitation and non-disclosure of trade secrets would be exempt from the ban, as would non-compete agreements made in connection with the sale of a business.
State-specific laws What state-specific laws govern the employment relationship?
- Massachusetts Equal Pay Act (149 MGLA §1 et seq.)—covers multiple topics, including:
- lie detector tests;
- leave laws;
- wage laws;
- government contracts;
- youth employment laws;
- staffing agencies; and
- non-compete agreements.
- Massachusetts Fair Employment Practices Law (151 B MGLA §1 et seq.)—covers multiple topics, including:
- background checks;
- pre-employment inquiries; and
- sexual harassment.
- Laws prohibiting discrimination—Massachusetts Civil Rights Act (Mass Gen. Laws Ann. Ch.12 §§11H and 11I) and Massachusetts Equal Rights Act (Mass Gen. Laws Ann. Ch. 93 §§102 and 103).
- Background checks—Massachusetts Consumer Credit Reporting Act (Mass Gen. Laws Ch. 93 §§50 – 68); HIV testing (Mass. Gen. Laws Ch. 111, § 70F); Mass. Gen. Laws Ch. 6, §171 et seq.; Mass. Gen. Laws Ch. 15D, § 7; and Mass. Gen. Laws Ch. 71, § 38R.
- Laws related hiring requirements—Workers' Compensation Act (Mass. Gen. Laws Ch. 152, § 22).
- Leave laws—jury duty and court attendance leave (Mass. Gen. Laws Ch. 234A, §§ 48-49 and 60-61); termination because of jury service (Mass Gen. Laws Ch. 268 §14A and Ch. 234A, §61); and victim and witness leave (Mass. Gen. Laws Ch. 258B, § 3(l)).
- Laws regarding non-compete agreements—lawyers (Mass. R. Prof'l Conduct 5.6); physicians (Mass. Gen. Laws Ch. 112, § 12X); nurses (Mass. Gen. Laws Ch. 112, § 74D); and social workers (Mass. Gen. Laws Ch. 112, § 135C).
- Wage and hour laws—minimum wage (Mass. Gen. Laws Ch. 151, § 1); overtime (Mass. Gen. Laws Ch. 151, § 1A); Sunday payment (Mass. Gen. Laws Ch. 136, § 6).
- Smoke-free Workplace Law (Mass. Gen. Laws Ch. 270, §22).
- Right to freedom from sexual harassment (Mass. Gen. Laws Ch. 213 §1C).
- Handicap under the Worker’s Compensation Act (Mass. Gen. Laws Ch. 152, §75(B)(1)).
Who do these cover, including categories of workers? “Employment” includes any service performed by an individual that is employed by:
- the commonwealth or any of its instrumentalities (subject to exceptions);
- a farm employing unit in agricultural labor;
- a domestic employing unit in a private home, local college club, or local college fraternity or sorority; or
- a religious, charitable, education, or other organization (subject to exceptions).
The individual must be:
- a citizen of the United States outside the United States (except Canada and the Virgin Islands); or
- employed by an U.S. employer (subject to exceptions) on or in connection with U.S. vessels and aircraft under a contract of service with the United States (151A M.G.L.A. §4A).
“Employment” does not include:
- agricultural labor, except as provided in 151 MGLA §4A;
- domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, except as provided in 151 MGLA §4A;
- service performed by an individual employed by his or her son, daughter, or spouse;
- service performed by a child in the employ of his or her parents;
- service performed in the employ of the U.S. government or an instrumentality thereof;
- service performed in the employ of a state or political subdivision or instrumentality thereof;
- service that is not performed in the course of the employer’s trade or business in any calendar quarter by an employee, unless the cash remuneration paid for such service is $50 or more and such service is performed by an individual who is regularly employed by such employer to perform such service;
- service performed by an individual as an “employee” or “employee representative,” as defined in Section 1 of the Federal Railroad Unemployment Insurance Act;
- service performed in any calendar quarter in the employ of any organization exempt from income tax under Section 501(a) of the Federal Internal Revenue Code, other than an organization described in Section 401(a) of the code, or exempt from income tax under Section 521 of the code, if the remuneration for such service is less than $50;
- service performed in the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, or such a student’s spouse (subject to some limitations found in Mass. Gen. Laws Ann. Ch. 151A, § 6);
- service performed as a student nurse or medical resident;
- service performed in the employ of a foreign government;
- service performed by an individual as an insurance agent or as an insurance solicitor, if the service is performed for remuneration solely by way of commission and such service is excluded from the term “employment” under Section 3306 of the Federal Internal Revenue Code or any acts in addition thereto and amendments thereof; however, service performed by any agent selling or servicing policies of industrial life insurance (as defined by Section 1 of Chapter 175) that is also employed by any life insurance company authorized to do business in this commonwealth—whether his or her remuneration for such service is by way of commission or otherwise—is considered employment within Chapter 175;
- service performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;
- services performed by an individual as a real estate broker or salesperson if he or she is licensed by the state as a real estate broker or salesperson, and if he or she is remunerated solely by way of commission—provided that the term “employment” includes service performed by a real estate broker or a salesperson, if such service is performed for a “governmental employer” as defined in Section 1;
- service performed by an individual as a polltaker or opinion taker, if the rate of such individual's remuneration is determined by a person other than the person supervising him or her and if said individual is free to accept or decline any given assignment—provided that the term “employment” includes service performed as a polltaker or opinion taker, if such service is performed for a “governmental employer” as defined in Section 1;
- service performed in the employ of a church or convention or association of churches, or an organization operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
- service performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order;
- service performed in a facility in order to carry out a rehabilitation program for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury, or to provide remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market by an individual receiving such rehabilitation or remunerative work;
- service performed by an individual as part of an unemployment work relief or work training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof or an Native American tribe;
- service performed in a custodial or penal institution by an inmate of said custodial or penal institution;
- service performed by a patient in the employ of a hospital, whether public, non-profit, or proprietary; and
- service performed by a “full-time student” as defined in Section 3306(q) of the Internal Revenue Code of 1954 in the employ of an organized camp, if such camp fulfills the requirements included in this section.
Misclassification Are there state-specific rules regarding employee/contractor misclassification? Whenever assessing the employee/employer relationship, employers should use the criteria set forth in the Massachusetts Misclassification Law, unless specifically dealing with unemployment insurance or workers’ compensation issues. The following statutes provide definitions for “independent contractors.”
a. Wage and hour
The Massachusetts Independent Contractor Law or The Massachusetts Misclassification Law (MGLA Ch. 149 §148B) states that an:
“individual performing any service, except as authorized under this chapter, shall be considered an employee unless:
“(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”
Further, the Massachusetts Office of the Attorney General has provided an advisory opinion providing guidance on the three prong test (MGLA Ch. 149 §148B).
b. Unemployment insurance (151A MGLA §2)
The test for whether a worker is an independent contractor for purposes of determining unemployment insurance eligibility is slightly different from the test provided for wage and hour purposes. For unemployment insurance purposes, workers are employees unless it can be shown to the commissioner that:
“(a) such individual has been and will continue to be free from control and direction in connection with the performance of such services, both under his contract for the performance of service and in fact; and
(b) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(c) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”
c. Workers’ compensation
Massachusetts courts apply a “right to control” standard when determining whether a worker is an independent contractor for purposes of determining eligibility for workers’ compensation (e.g., Thorson v. Mandell, 525 N.E.2d 275, (Mass. 1988)).
d. Tax withholding
The Massachusetts Department of Revenue applies the federal Internal Revenue Code’s 20-factor test for determining whether a worker qualifies as an independent contractor (62B MGLA §1-21; 26 U.S.C.A. §3401).
Contracts Must an employment contract be in writing? No. An oral contract can be a valid employment agreement, except if it is subject to the statute of frauds (e.g., Boothbay v. Texon, 608 N.E.2d 1028, 1034-1038 (Mass. 1993)). According to the statute of frauds, any contract—including an employment contract—that is “not to be performed within one year” must be:
- in writing; and
- signed by both parties to be bound (259 M.G.L.A. §1).
Massachusetts courts require a party seeking to enforce an oral agreement to provide sufficient evidence to show that an individual contract existed between that party and his or her employer (e.g., Davis v. Sweetheart Plastics, Inc., 635 F.Supp. 849 (D.Mass. 1986)). An employer can be held liable for an oral promise that would otherwise fall under the statute of frauds under the theory of estoppels—that is, where an employee has detrimentally relied on oral promises made by his or her employer (e.g., Hurwitz v. Bocian, 670 N.E.2d. 408 (Mass. App. Ct., 1996)).
The above analysis also applies to subsidiary oral agreements that are made within an existing employment relationship (e.g., Hall v. Horizon House Microwave, Inc., 506 N.E.2d 178, 182-183 (Mass. App. Ct., 1987)).
Are any terms implied into employment contracts? Absent a written provision to the contrary, Massachusetts courts presume that employment relationships are at will—that is, that the employment relationship may be terminated at any time by either party (e.g., Jackson v. Action for Boston Community Dev., Inc., 525 N.E.2d 411, 412 (Mass., 1988)).
In some cases, Massachusetts courts will interpret a phrase regarding the circumstances that an employer may terminate employment to be “just cause,” regardless of the actual phrasing in the particular employment agreement (e.g.,Klein v. President and Fellows of Harvard College, 517 N.E.2d 167, 208 (Mass. App. Ct., 1987) (Finding where an employee’s letter of appointment provided that “she was subject to removal ‘for grave misconduct whenever …[her] duties are not satisfactorily discharged’, the term “not satisfactorily discharged” should be construed to mean the employee could be terminated for “just, good, or due cause at least, but not more”). Several courts have relied on the Massachusetts Supreme Judicial Court’s definition of “just cause” (e.g., in G&M Employment Serv. Inc. v. Commonwealth(Mass., 1970)) to determine the meaning of the phrase in subsequent cases (e.g., Goldhor v. Hampshire College, 521 N.E.2d 1381, 1385 (Mass. App. Ct., 1998) and Hammond v. T.J. Litle &Co., 82 F.3d 1166, 1170 n.4, 1176-1177 (1st. Cir., 1996)).
Are mandatory arbitration agreements enforceable? Under the Federal Arbitration Act—which pre-empts contrary or impeding state laws—courts can compel arbitration clauses if they find that the agreement to arbitrate:
- reaches the claim in question;
- is mandatory; and
- was voluntarily entered into (Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, 170 F.3d 1, 120 (1st. Cir., 1999)).
With regard to pre-dispute agreements to arbitrate employment disputes, courts apply state contract doctrines of unconscionability and public policy in order to provide minimum protections and to ensure that employees are not forced to give up substantive rights. Some exceptions apply in the context of class arbitration waivers (e.g., American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)).
Where the Federal Arbitration Act is not found to pre-empt an agreement, the Massachusetts Arbitration Act may apply. Massachusetts courts have not yet ruled whether the Massachusetts Arbitration Act applies to individual employment agreements, although they have had the chance to do so (e.g., Corion Corp. v. Chen, 1991 WL 280288 (U.S. Dist. Ct., D. Mass., 1991)). As it is unclear whether courts in Massachusetts will find that the Massachusetts Arbitration Act applies to employment agreements, enforcement (if it is desired) should be sought through the Federal Arbitration Act, if possible.
If the Massachusetts Arbitration Act does apply, it provides enforcement of agreements to arbitrate summarily through the Superior Court, which may stay any pending judicial proceedings on the matter (11 M.G.L.A. §2). Massachusetts courts will also review and confirm arbitration agreements (11 M.G.L.A. §7).
How can employers make changes to existing employment agreements? An employment agreement may set the terms for making changes. Some employment agreements simply restate the employment at-will status (i.e., that the employee can be terminated at any time, with or without notice, and for any non-illegal reason). Other employment agreements provide that the change must be mutually agreed to and executed in writing by both parties. Under the at-will status, an employee can be terminated at any time and then offered new employment with new terms. Absent an employment agreement for a specific period or which otherwise limits an employer’s ability to change the terms of employment, any prospective change is permissible, because the status of the employee is at will. Before any change to an employee’s status is made, it is necessary to determine that employee’s status and the terms of the employment agreement.
An employment agreement can be oral or written. Most at-will employment arrangements are oral employment contracts. If there is some form of reliance or change in status by the employee based on an oral representation by the employer, the employment arrangement may have been modified from the standard at-will relationship. Once the nature of the employment agreement is determined, then how and when a change can be made can be determined.
Advertising What are the requirements relating to advertising open positions? If the offer of employment is contingent on the applicant’s purchase of an item, the employer must state in its job advertisement that employment is conditioned on the purchase. Penalties for violating this requirement may include a fine up to $2,000, imprisonment of up to three months, or both (Mass. Gen. Laws Ch. 149, §21).
Background checks What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests Employers with six or more employees may not ask prospective employees about criminal histories on applications for employment, unless:
- federal or state law creates a mandatory or presumptive disqualification for the position if the applicant has been convicted of a crime; or
- federal or state law prohibits the employer from employing individuals in certain positions if the individual has been convicted of a certain offense (Mass. Gen. Laws Ch. 151B, §4(9.5)).
(b) Medical history Employers may not request disclosure of genetic information (Mass. Gen. Laws Ch. 151B, §4(19)(a). In addition, they may not ask whether an applicant:
- has been voluntarily or involuntarily admitted to a mental healthcare facility if the applicant has been discharged from the facility and is no longer under treatment resulting from the admission (id. §4(9A)); or
- is disabled or the nature or severity of any disability.
Any questions about history of absenteeism due to illness, major illnesses, and physical conditions are prohibited (id. §4 (16)).
(c) Drug screening
Whether random or reasonable suspicion testing is allowed depends on whether the testing violates the Massachusetts Privacy Act (Mass. Gen. Laws Ch. 214 §1B). Courts will evaluate whether the employer’s business interest in conducting the test outweighs the employee’s right to privacy.
(d) Credit checks Employers may conduct a credit check on a prospective employee with advance written notice of the request. If the employer denies employment based on the credit report, it must provide written notice to the applicant within 10 business days of the decision, and include information regarding the applicant’s right to:
- have a copy of the report;
- have someone from the credit reporting agency interpret the report’s information;
- dispute inaccurate information and the process for doing so; and
- send a statement to the credit reporting agency if the dispute is not resolved (Mass. Gen. Laws Ch. 93 §62).
(e) Immigration status Massachusetts employers must use the Federal I-9 Form to verify work authorization in the United States.
(f) Social media No laws govern the use of social media as part of the hiring process in Massachusetts.
Wage and hour
Pay What are the main sources of wage and hour laws in your state? Wage and hour laws are covered by Title 149 of the Massachusetts General Laws (Sections 56-105, 148, 148C, 150A, and 159C) and by Title 151 of the Massachusetts General Laws (Sections 1 and 1A).
What is the minimum hourly wage? The minimum wage in Massachusetts is $9 per hour (Mass. Gen. Laws Ch. 151, §1).
The minimum wage in Massachusetts must be at least $0.10 higher than the effective minimum federal rate, which is currently $7.25 per hour (29 U.S.C. §206).
What are the rules applicable to final pay and deductions from wages? Any employee leaving his or her employment voluntarily must be paid in full either on the following regular payday or, in the absence of a regular payday, on the following Saturday (Mass. Gen. Laws Ch. 149, §148).
Any employee discharged from employment must be paid in full on the day of his or her discharge or, in Boston, as soon as the laws requiring payrolls, bills, and accounts to be certified have been complied with (Mass. Gen. Laws Ch. 149, §148).
An employer may deduct from an employee’s paycheck for:
- social security;
- unemployment benefits;
- vacation or health and welfare funds;
- states taxes;
- federal taxes;
- dues check-off; and
- credit unions (e.g., Mass. Gen. Laws Ch. 149, §150A).
It is a violation of the Massachusetts Wage Act for an employer to deduct from an employee’s pay for:
- workers’ compensation;
- other insurance procured for the benefit of the employer; and
- franchise fees (Awuah v. Coverall, 952 N.E.2d. 890, 900-01 (Mass. 2011)).
Additional deductions may be taken—subject to weekly statutory limits and the employee’s consent—in the case of lodgings for seasonal employees and for employer-provided meals (454 Mass. Regs. Code §27.05(2)-(3)).
Hours and overtime What are the requirements for meal and rest breaks? Employers must provide employees who work at least six hours a day with a meal period that is at least 30 minutes long. The meal break may be unpaid, except if the employee voluntarily agrees to waive the meal break by working through the break or by remaining at the workplace at the employer’s request during the break (Mass. Gen. Laws Ch. 149, §100).
What are the maximum hour rules? All non-exempt employees must be paid at last one-and-one-half times the regular rate of pay for hours worked in excess of 40 during the working week (Mass. Gen. Laws Ch. 151, §1A).
Minors under 16 years old may not work:
- more than six days per week;
- more than 48 hours per week;
- more than eight hours per day or a period longer than nine consecutive hours; or
- before 6:30am or after 7:00pm, except from July 1 to Labor Day, when they may work until 9:00pm.
Children 16 years old or older may work until 11:30pm on nights not preceding a school day (Mass. Gen. Laws Ch. 149, §65).
Minors under the age of 18 who are employed in any establishment or occupation named in Mass. Gen. Laws Ch. 149, §56 or §60 must not be employed for any of the following:
- six days per week;
- 48 hours per week;
- nine hours per day; or
- a period longer than 12 consecutive hours (Mass. Gen. Laws Ch. 149, §67).
How should overtime be calculated? Overtime is calculated based on an employee’s regular hourly wage before any allowable deductions are made (e.g., 454 Mass. Regs. Code §27.05(6)).
What exemptions are there from overtime? The following employees are exempt from the state’s overtime requirements:
- some janitors or caretakers of residential property;
- golf caddies;
- newsboys and newsgirls;
- child performers;
- bona fide executive or administrative or professional employees earning more than $80 per week;
- outside salespersons and buyers;
- learners, apprentices, and handicapped persons under special license;
- fishermen and fisherwomen;
- switchboard operators;
- drivers and helpers on trucks subject to the Interstate Commerce Commission and the Motor Carrier Act of 1935 §204;
- seasonal employees;
- employees of employers regulated by 159A of the Massachusetts General Laws;
- hotel employees and employees of like establishments;
- gas station employees;
- restaurant employees;
- automobile garage employees;
- hospital, nursing home, or infirmary employees;
- summer camp employees;
- farm and agriculture laborers; and
- amusement park employees (151 M.G.L.A. §1A).
Record keeping What payroll and payment records must be maintained? Every employer must keep a record of each employee’s:
- complete address;
- social security number; and
In addition, the employer must keep a record of:
- the amount paid each pay period to each employee;
- hours worked each day by each employee;
- the dates on which each employee worked each week; and
- other information that the director of the Department of Labor Workforce Development or the state attorney general finds material and necessary (454 Mass. Regs. Code §27.07(2)).
Employers must keep such records on file for at least two years after the date of entry. Employers must maintain such records at one of the following locations:
- the place where the employee is employed;
- the office of the employer;
- a bank or accountant; or
- another central location in Massachusetts (454 Mass. Regs. Code §27.07(2)).
Pursuant to the Massachusetts Earned Sick Time Law, employers must also keep records of employees’ accrual and use of earned sick time for a three-year period. (940 Mass. Regs. Code §33.09).
Discrimination, harassment and family leave
What is the state law in relation to: Protected categories
(a) Age? Massachusetts recognizes the following protected classes in the Massachusetts Fair Employment Practices Law:
- religious creed;
- national origin;
- age (if over 40 years old);
- sexual orientation;
- genetics; and
- gender identity (151B M.G.L.A. §4(1) and 12 M.G.L.A. §§11H, 11I).
Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s membership in a protected class, except if the decision is based on a bona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5).
In addition, the Massachusetts Civil Rights Act prohibits any person from interfering with any other person’s rights under federal and Massachusetts laws through attempted or actual threats, intimidation, or coercion (12 M.G.L.A. §§11H, 11I). The Massachusetts Equal Rights Act also prohibits discrimination against individuals based on:
- religious creed;
- national origin;
- age (if over 40 years of age); or
- disability (93 M.G.L.A. §§102-103).
The Massachusetts Equal Rights Act states that all individuals in protected classes have the same rights to:
- make and enforce contracts;
- convey real and personal property;
- sue and be sued;
- give evidence; and
- have full and equal benefits under the laws and proceedings for the security of persons and property (id.).
Age (if over 40 years old) is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1); 12 M.G.L.A. §§11H, 11I; 93 M.G.L.A. §§102-103). Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s age, except if the decision is based on a bona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5).
In addition, the Massachusetts Civil Rights Act prohibits any person from interfering with any other person’s rights under federal and Massachusetts laws through attempted or actual threats, intimidation, or coercion (12 M.G.L.A. §§11H, 11I).
(b) Race? Race is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1); 12 M.G.L.A. §§11H, 11I; 93 M.G.L.A. §§102-103). Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s race, except if the decision is based on a bona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5).
In addition, the Massachusetts Civil Rights Act prohibits any person from interfering with any other person’s rights under federal and Massachusetts laws through attempted or actual threats, intimidation, or coercion (12 M.G.L.A. §§11H, 11I).
(c) Disability? Disability is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1), 12 M.G.L.A. §§11H, 11I and 93 M.G.L.A. §§102-103).
The Massachusetts General Laws define a person as “handicapped” if he or she has a physical or mental impairment that substantially limits one or more major life activities, including:
- caring for himself or herself;
- performing manual tasks;
- learning; and
An applicant or employee must have a record of that impairment to be regarded by his or her employer as having a qualifying impairment (151B M.G.L.A. §1(17), (20)). Individuals who are perceived to have a disability, whether or not it actually exists, are protected under Massachusetts’ disability discrimination laws (151B M.G.L.A. §1(17)).
The Massachusetts Commission Against Discrimination defines “impairment” as either:
- a physiological disorder affecting one or more body systems; or
- a mental or psychological disorder.
The Massachusetts Commission Against Discrimination provides that a temporary disability may be considered a handicap, but requires a fact-specific inquiry (MCAD Guidelines: Employment Discrimination on the Basis of Handicap).
Massachusetts employers that are aware or should be aware of an employee’s disability have a duty to provide reasonable accommodation to such qualified handicapped individuals, except where the employer can show that an accommodation would cause an undue hardship to the business (151B M.G.L.A. §4(16)). If an employer is not aware and should not have been aware of the employee’s disability, the employee must request reasonable accommodations (id; MCAD Guidelines: Employment Discrimination on the Basis of Handicap).
(d) Gender? Gender is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1) and 12 M.G.L.A. §§11H, 11I; 93 M.G.L.A. §§102-103).
Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s gender, except if the decision is based on abona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5).
In addition, the Massachusetts Civil Rights Act prohibits any person from interfering with any other person’s rights under federal and Massachusetts laws through attempted or actual threats, intimidation, or coercion (12 M.G.L.A. §§11H, 11I).
The Massachusetts Equal Pay Act protects all individuals from discrimination in pay based on gender (149 M.G.L.A. §105). The act prohibits employers in Massachusetts from paying men and women different wages for work of like or comparable character (id.).
(e) Sexual orientation? Sexual orientation is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1); 12 M.G.L.A. §§11H, 11I; and 93 M.G.L.A. §§102-103).
Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s sexual orientation, except if the decision is based on a bona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5)).
(f) Religion? Religious creed is a protected class under the laws of Massachusetts (151B M.G.L.A. §4(1); 12 M.G.L.A. §§11H, 11I; 93 M.G.L.A. §§102-103).
Employers in Massachusetts may not refuse to hire, discharge, or discriminate against any individual in compensation or in terms, conditions, or privileges of employment because of an individual’s religion, except if the decision is based on abona fide occupation qualification (id.). All Massachusetts employers with six more employers (except domestic service and non-profit social, fraternal, or religious organizations) fall within this law (151B M.G.L.A. §1(5).
(g) Medical? Although medical status is generally not a protected class, genetic information is protected under the laws of Massachusetts and is subject to the general protections outlined above (151B M.G.L.A. §4(1); 12 M.G.L.A. §§11H, 11I; 93 M.G.L.A. §§102-103).
(h) Other? Massachusetts protects employees who opposed conduct that they believed in good faith to be illegal (151B M.G.L.A. §4(4)). Employees in Massachusetts are protected against coercion, intimidation, threats, or other interference with their own rights or against them because they encourage others to enjoy their rights (id.). Courts have defined “retaliation” as an adverse employment action motivated by an intent to punish someone who complains of unlawful conduct or to rid the workplace of such a person (Ruffino v. State Street Bank & Trust Co., 908 F. Supp. 1019, 1044 (D.Mass 1995)).
Harassment What is the state law in relation to harassment? Chapter 151B of the Massachusetts General Laws prohibits sexual harassment and includes such harassment in the definition of discrimination on the basis of sex (151B M.G.L.A. §1(18)). It does not specifically prohibit harassment against the other protected classes (151B M.G.L.A. §4(16A) and (3A)). “Sexual harassment” is defined as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; or
- such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance or by creating an intimidating, hostile, humiliating, or sexually offensive work environment (151B M.G.L.A. §1(18)).
Courts in Massachusetts have held that the Fair Employment Law prohibits same-sex harassment (e.g., Melnychenko v. 84 Lumber Co., 424 Mass. 285, 288-289 (1997)).
Family and medical leave What is the state law in relation to family and medical leave? Massachusetts has no state equivalent to the federal Family and Medical Leave Act. However, under the Small Necessities Leave Act, an employee who has been employed by an employer for at least one year and has worked 1,250 hours in the 12 months immediately before the leave is eligible for leave under this law (149 M.G.L.A. 52D). An eligible employee is entitled to up to 24 hours of leave during any 12-month period (in addition to leave available under the federal act) in order to:
- participate in school activities directly related to the educational advancement of a child;
- accompany his or her child to routine medical or dental appointments; or
- accompany his or her elderly relative to routine medical or dental care or to other appointments for professional services related to the elder’s care (id.).
The employer may designate leave under the act as paid vacation leave, personal leave, or medical sick leave—time which is already provided to the employee as a benefit (id.). Leave taken under this section may be taken intermittently or on a reduced schedule (id.). If the leave is foreseeable, the employee must give seven days’ notice (id.).
Privacy in the workplace
Privacy and monitoring What are employees’ rights with regard to privacy and monitoring? Massachusetts’ general privacy law is applicable to employees (Mass. Gen. Law Ch. 214, § 1B). Chapter 272, Section 99 applies to the interception of wire and oral communications and requires that all parties consent to the recording of the communication (Mass. Gen. Law Ch. 272, § 99(B)(4)).
Massachusetts’ general criminal background checks are authorized by Mass. Gen. Law Ch. 151B, §§ 4(9) and 4 (9 ½), as well as Mass Gen. Laws Ch. 6 §§ 171A and 172.
The Massachusetts Consumer Credit Reporting Act (Mass Gen. Law Ch. 93 §§ 50-68) provides that employees and prospective employees must be provided with advance written notice that the employer will request their credit reports. If the employer terminates or denies employment as a result of the credit report, notice must be given to the employee (or applicant) within 10 business days (Mass. Gen. Law Ch. 93 § 62).
It is unlawful for an employer to require or administer a lie detector test as a condition of employment and such language must be included on all applications for employment in clearly legible print (Mass. Gen. Law Ch. 149 §19B(2)(b)).
Pre-employment medical examinations must be:
- be limited to determining a prospective employee’s capability to perform the essential functions of the job with reasonable accommodations;
- be administered to all prospective employees entering the same job category; and
- be reimbursed by the employer.
In addition, the employer must provide a copy of the medical report on the applicant’s request (Mass. Gen. Law Ch. 149 §§ 19A and 159B).
Employer cannot require HIV antibody or antigen tests as a condition of employment (Mass. Gen. Law Ch. 111, § 70F), and cannot use genetic information in employment decisions (Mass. Gen. Law Ch. 151B, §4(19)). Employers cannot ask job applicants about voluntary or involuntary admission to a mental healthcare facility (Mass. Gen. Law Ch. 151B, §4(9A)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts? As of June 23 2014, legislation (S.2118—a new draft of H170 and S852) is pending that will restrict an employer from requiring or suggesting that an employee or applicant disclose his or her username or password or provide access through his or her username or password to a personal social media account. It will further restrict an employer’s ability to list as a condition of employment that an employee add anyone (including the employer) to contacts associated with the social media account or take or threaten adverse action for refusing to disclose a username or password or add the employer as a contact.
Bring your own device What is the latest position in relation to bring your own device? No laws or proposed legislation restrict employers from instituting bring your own device policies.
Off-duty To what extent can employers regulate off-duty conduct? Massachusetts drug testing is governed by the right of privacy in Mass. Gen. Law Ch. 214, § 1B (Foimsbee v. TeCh. Tool Grinding & Supply, Inc., 630 N.E.2d 586 (Mass. 1994)).
Gun rights Are there state rules protecting gun rights in the employment context? No laws or proposed legislation protect gun rights in the employment context.
Trade secrets and restrictive covenants
Intellectual Property Who owns IP rights created by employees during the course of their employment? “Work for hire” means that the employer is treated as the owner of the work prepared by an employee within the scope of employment or work for which there is a special commission by the employer for the work to be performed. To ensure protection, employers should enter into written agreements with employees (or contractors), specifying that the employer owns any IP rights created by employees (or contractors) during the course of their employment or engagement.
Massachusetts has not adopted the Uniform Trade Secrets Act, but it does have its own Trade Secret Protection Act that imposes civil liability (Mass. Gen Laws Ch. 93 § 42). The Massachusetts law does not reference misappropriation of trade secrets, but does impose liability for:
- stealing or embezzling trade secrets;
- concealing, copying, or taking away trade secrets; and
- obtaining a trade secret by fraud or deception.
A separate statute makes it a crime to steal or obtain trade secrets through improper means (Mass. Gen Laws Ch. 266 § 30). Even if information does not constitute a “trade secret” as defined in Mass. Gen Laws Ch. 266 § 30, the employer’s confidential information may still be protected by the common law rule requiring good faith and fair dealing (USM Corp. v. Marson Fastener Corp., 393 N.E.2d 895 (Mass. 1979)). To prevail, an employer must establish that the information is “confidential,” meaning that the information:
- derives independent economic value (actual or potential) from not being generally known to or readily ascertainable by proper means by other persons; and
- is the subject of reasonable employer efforts to maintain its secrecy.
Employers should have employees sign an agreement requiring that they not use or disclose any of the employer’s confidential information.
Restrictive covenants What types of restrictive covenants are recognized and enforceable? Massachusetts has no general statute governing the enforceability of non-compete agreements. However, in 2014, legislation has been proposed that will largely prohibit non-compete agreements in Massachusetts. Therefore, an update on the law should be sought before making any decisions with respect to seeking or enforcing a non-compete agreement.
Non-compete agreements are enforceable only to the extent that they are necessary to protect the legitimate interests of the employer. This means that the scope of a non-compete agreement, in terms of territory, duration, and restricted activities, can be no broader than absolutely necessary to protect the legitimate interests of the employer. Enforcement of non-compete agreements must also be consistent with public policy (Marine Contrs. Co. v. Hurley, 365 Mass. 280, 287-288, 289 (1974) and All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974)).
In Massachusetts, covenants not to compete “are scrutinized with particular care because they are often [a] product of unequal bargaining power and because the employee is likely to give scant attention to the hardship he may later suffer through the loss of his livelihood” (KNF&T Staffing, Inc. v. Muller, 2013 WL 7018645 (Mass. Super. 2013; Billings, J.) citing Sentry Ins. Co. v. Firnstein, 14 Mass.App.Ct. 706, 707 (1982) and Alexander v. Alexander, Inc. v. Danahy, 21 Mass.App.Ct. 488, 496 (1986) (close scrutiny was warranted because “an … employee typically has only his own labor or skills to sell and often is not in a position to bargain with his employer”)).
Customer relationships and “goodwill” are protectable business interests, as are trade secrets and confidential information (Corporate Techs., Inc. v. Harnett, 731 F.3d 6 (1st Cir. 2013) citing Marine Contractors Co. v. Hurley , 310 N.E.2d 915, 920 (Mass. 1974) (restrictive covenants are meant to protect an employer’s accrued goodwill); Boulanger v. Dunkin’ Donuts, Inc., 815 N.E.2d 572 (Mass. 2004) (protecting confidential information, such as operational information, financial information and data, marketing and promotion strategies, new product development, and location of sites for new stores) and All Stainless, Inc. v. Colby, 364 Mass. 773, 779-80 (1974)). Goodwill in the form of customer relationships that the employee brought to the employer may not be protected in every instance (e.g., Getman v. USI Holdings Corp., 2005 WL 2183159 (Mass. Super. 2005; Gants, J.).
Any non-compete agreement must be supported by valid consideration to be enforceable. Initial employment can be valid consideration (Slade Gorton & Co. v. O'Neil, 242 N.E.2d 551 (Mass. 1968)). The law in Massachusetts is in flux regarding the question of whether continued employment can provide sufficient consideration to support the enforceability of a non-compete agreement (Compare Slade Gorton v. O'Neil, 242 N.E.2d 551 (Mass. 1968) and Optos, Inc. v. Topcom Med. Sys., Inc., 777 F.Supp. 2d 217 (D.Mass. 2011)—which both held that continued employment may be adequate consideration—with Metropolitan Removal Co. v. D.S.I Removal Specialists, Inc., 2006 WL 619111 (Mass. Super. 2006), which both held that non-compete agreements signed during continued at-will employment are not valid without additional consideration)).
If a non-compete agreement is overbroad, there is authority in Massachusetts that suggests that a court will enforce the agreement to the extent it is reasonable (Ferrofluidics Corporation v. Advanced Vacuum Components, Inc., 968 F2d 1463 (1st Cir 1992) (applying Massachusetts law)).
The Massachusetts courts have adopted a material change doctrine asserting that material changes in the employment relationship are allowed, such as a demotion or voiding an existing non-compete agreement and requiring the parties to enter into a new agreement (F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585, 587-88 (1968) and Iron Mountain Information Mgmt., Inc. v. Taddeo, 455 F.Supp.2d 124, 132-33 (E.D.N.Y. 2005), quoting Lycos, Inc. v. Jackson, 18 Mass. L. Rptr. 256, 2004 WL 2341335 (Mass. Super. 2004; Houston, J.) (“‘[e]ach time an employee's employment relationship with the employer changes materially such that they have entered into a new employment relationship a new restrictive covenant must be signed.’”)). Typically, the focus has been on an adverse change in the terms of employment (AFC Cable Sys. v. Clisham, 62 F. Supp. 2d 167, 173 (D. Mass. 1999); Intepros, Inc. v. Athy, 2013 WL 2181650 (Mass. Super. 2013; Curran, J.) and Grace Hunt IT Solutions, LLC v. SIS Software, LLC, 2012 WL 1088825 (Mass. Super. 2012; Lauriat, J.)). Some court decisions have created possible exceptions to the material change doctrine (e.g., Leibowitz v. Aternity, Inc., 2010 WL 2803979 (U.S. Dist. Ct. E.D.N.Y., July 14, 2010) at *22 (no abrogation where a non-compete agreement expressly stated that “Any subsequent change or changes in [employee's] duties, salary or compensation will not affect the validity or scope of this Agreement”; applying Massachusetts law); A.R.S. Services, Inc. v. Morse, 2013 WL 2152181 (Mass.Super. 2013; Leibensperger, J.); and Getman v. USI Holdings Corp., 2005 WL 2183159 (Mass. Super. 2005; Gants, J.) (a change in salary and commission did not abrogate the agreement which had not specified the rate for either)).
Non-compete Are there any special rules on non-competes for particular classes of employee? Statutes in Massachusetts prohibit non-compete agreement in specific professions:
- attorneys—Rule 5.6 of Mass Rules Professional Conduct;
- broadcasters—Mass. Gen Laws Ch. 149 § 186;
- nurses—Mass. Gen Laws Ch. 112 § 74D;
- physicians—Mass. Gen Laws Ch. 112 § 12X;
- psychologists—Mass. Gen Laws Ch. 112 § 129B; and
- social workers—Mass. Gen Laws Ch. 112 § 135C.
Right to work Is the state a “right to work” state? No.
Unions and layoffs Is the state (or a particular area) known to be heavily unionized? The most heavily unionized areas are the larger cities (e.g., Boston, Worcester, and Springfield), with their public sector unions being the teachers, firefighters, and police unions. The older unions covering textiles, paper, and shoes have died out in many areas. New union activity tends to be in the areas of construction, food workers, transportation, and some healthcare facilities. Unions now tend to cluster around the surviving mill towns and the larger industrial towns, except for public sector unions. Massachusetts has a number of separate construction trades unions that have a significant union presence. There is significant unionization in the retail food business, except for WalMart.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs? Massachusetts has a plant closure law (Mass. General Laws, Ch. 151(a) Sections 71(a) and 71(b)) that applies to employers that have been in business for at least one year and that have had at least 50 employees during any month in the six months before the director of the Massachusetts Department of Labor and Workforce Development certifies that a plant closure has occurred. A plant closure occurs when:
- there is a permanent cessation or reduction in business at a facility with 50 or more employees; and
- at least 90% of the facility’s employees are terminated within a six-month period.
Notice of the closure must be given to the director of the Department of Labor and Workforce Development (however, it appears that the law is not currently being enforced, as the Massachusetts legislature has not funded the law for several years). The director will then certify whether the plant closure has occurred and will notify the labor union (if employees are represented by one) and any other person or organization that the director decides is an interested party.
Massachusetts also has a plant closure law that applies to entities which are financed by quasi-public agencies (Mass. GL, Ch. 149 Section 182). Under this law, employers must accept voluntary standards of corporate behavior related to plant closures, including a requirement to make a good-faith effort to provide every affected employee with:
- the maximum possible advance notice where possible and appropriate; and
- maintenance of income and healthcare insurance benefits for that period.
Each quasi-public agency negotiates its own arrangement with each employer that obtains funds. The quasi-public agencies that provide financing are:
- the Massachusetts Industrial Finance Agency;
- the Community Development Finance Corporation;
- the Massachusetts Technology Development Corporation;
- the Government Landbank; and
- the Massachusetts Product Development Corporation.
The law provides no form or method for informing the department; nor does it provide any specific penalties for not doing so. Similarly, the standards for companies financed by quasi-public agencies also do not address potential penalties for violations. Those issues are left to the agreement with the agencies.
Neither of the plant closure laws appears to provide for a private right of action and neither law requires the payment of severance.
Discipline and termination
State procedures Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures? Generally, Massachusetts does not prescribe a discipline or grievance process for all employers. However, Massachusetts has adopted the Uniform Arbitration Act, which is designed to enforce arbitration agreements and proscribe procedures for arbitration pursuant to collective bargaining contracts (M.G.L. Ch. 150C §§ 1 et seq.). The statute controls the process for obtaining an order compelling arbitration to enforce the collective bargaining agreement. It does not set forth procedures for the grievance process itself, only procedures for arbitration when those provisions are absent from the collective bargaining agreement (M.G.L. Ch. 150c § 4). There are also minimal procedural standards for grievances that go before the labor relations board (M.G.L. Ch. 150A § 5; M.G.L. Ch. 150A § 9a (specific to nurses)).
There are also statutes which control the grievance and discipline process for civil servants and other public employees (M.G.L. Ch. 31 §§ 1 et seq.; M.G.L. Ch. 30 § 53; and M.G.L. Ch. 150E §§ 1 et seq.). In addition, there are state-specific laws with respect to grievance and discipline of teachers in public schools (M.G.L. Ch. 71 § 42).
At-will or notice At-will status and/or notice period? Massachusetts has adopted the at-will employment doctrine for individual employees who are not subject to an employment agreement. The employee may be terminated with or without cause, provided that the termination violates no law or other contractual arrangement.
What restrictions apply to the above? Courts have begun to employ common law contract and tort theories to issues surrounding the employment relationship. Further, the legislature continues to create increased protections for employees. Therefore, while the at-will doctrine is still applicable, employers should be extra vigilant in making sure that the termination does not violate an express or implied contractual right or any state or federal law.
Often, employee’s counsel may argue that the at-will doctrine was modified by an oral promise at the time of hire or later during employment (Carnig v. Carr, 46 N.E. 117 (Mass. 1897) and Boothby v. Texon, Inc., 608 N.E.2d 1028 (Mass. 1993)). In addition, arguments may be made that the at-will relationship was altered by employment policies or practices (Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d 1187 (Mass. 2008)). Specifically, the Massachusetts Supreme Judicial Court has held that personnel handbooks may create a contract (Jackson v. Action for Boston Community Development, Inc.,525 N.E.2d 411 (Mass. 1988) and O’Brien v. New England Tel. & Tel. Co., 664 N.E.2d 843 (Mass. 1996)).
Final paychecks Are there state-specific rules on when final paychecks are due after termination? Yes—under Massachusetts General Law Ch. 149, § 148, “any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday.” If, however, an employee is discharged by the employer, he or she “shall be paid in full on the day of his discharge” or, if the employer is in Boston, “as soon as the laws requiring pay rolls, bills, and accounts to be certified” are complied with (Mass. Gen. Law Ch. 149, § 148).