Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
What state-specific laws govern the employment relationship?
There is a broad Anti-discrimination Law (Mass. G.L. c. 151B) which covers all employers with six or more employees. There is also a strong Payment of Wages Law, mandating payment of all wages due to an employee (including those accrued through unused vacation time) at the time of termination. Treble damages for violation of this law are mandatory. Further, there are a number of laws relating to time off and leave of absence. For example, there is a mandatory Sick Leave Law, a Domestic Violence Leave Law, and a “Small Necessities” Leave Law (which allows time off for medical appointments, school activities, and to care for parents).
Who do these cover, including categories of workers?
The wage laws apply to most private employers. The Anti-discrimination Law governs employers with six or more employees. The Sick Leave Law applies to all employers, but leave must be paid only for employees working for employers with 11 or more employees. The Domestic Violence Leave Law applies to employers with 50 or more employees. The Small Necessities Leave Law has the same eligibility requirements as the federal Family and Medical Leave Act.
Are there state-specific rules regarding employee/contractor misclassification?
Yes. G.L. c. 149, Section 148B is among the stronger state laws regarding misclassification. Generally all work is presumed to be performed by employees (as opposed to contractors) unless certain specific requirements have been met. To be deemed an “independent contractor”, the following criteria must be met:
- The work must be free from control and direction, both under contract and in fact;
- The work must be outside the usual course of the employer’s business; and
- The worker must be customarily engaged in an independent trade, occupation or profession.
Must an employment contract be in writing?
Are any terms implied into employment contracts?
An implied covenant of good faith and fair dealing is part of all employment contracts. This has been interpreted to prohibit terminations in violation of well-defined public policy, or terminations designed to deprive employees of commissions or other earnings due to past services. With respect to the public policy exception, Massachusetts courts have been relatively restrictive regarding the types of public policy which give rise to a legal claim. Further, if the public policy is set forth in a statute which contains its own cause of action, the employee will be limited to proceeding under the statute.
Are mandatory arbitration agreements enforceable?
Generally, yes, although arbitration provisions must be drafted with care if the intention is for them to have broad scope. To be enforceable regarding statutory claims, the arbitration provision should make at least some reference to either the statute (i.e., the Massachusetts Wage Act) or type of claim (i.e., discrimination claims). This area of the law is somewhat dynamic, so employers should ensure that the most recent judicial pronouncements have been reviewed before drafting arbitration provisions. Private arbitration agreements generally do not deprive state investigatory agencies (e.g., the Massachusetts Commission Against Discrimination or the Office of the Attorney General) of their right to investigate.
How can employers make changes to existing employment agreements?
No specific requirements exist in this regard. The terms of the agreement should establish the means of amendment. Generally, continued employment is adequate consideration to make changes in terms of an at-will employment relationship.
What are the requirements relating to advertising open positions?
All advertisements must be non-discriminatory on the basis of race, age, gender and other protected categories. Advertisements must specifically note whether applicants are sought to replace workers engaged in a labor dispute.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
An employer cannot make a criminal records inquiry in an initial application for employment. Thereafter, the employer may make inquiries regarding conviction of felonies (for any time period) or misdemeanors (within five years). An employer must conduct criminal record searches in a non-discriminatory manner. Employers cannot pick and choose which candidates to perform criminal records checks on. Further, any criminal records checks which utilize state criminal history records must comply with state law.
(b) Medical history
Most pre-employment medical inquiries and examinations are barred by the state’s Disability Discrimination Law. An employer can condition employment on a post-offer medical exam.
(c) Drug screening
Pre-employment drug tests are permissible if conducted with adequate procedural and privacy protections and in a non-discriminatory manner. Post-employment, reasonable suspicion and post-accident testing is also permitted. Random testing is permitted for employees in “safety sensitive” positions, and for those subject to random testing under federal law.
(d) Credit checks
Massachusetts has its own version of the federal Fair Credit Reporting Act (FCRA). In most situations, compliance with the FCRA will equal compliance with state law.
(e) Immigration status
No inquiries are stipulated beyond those allowed or required by federal law.
(f) Social media
There are no statutory restrictions. Legislation has been introduced to prohibit employers from requesting applicants’ social media passwords, but it is yet to be enacted.
Massachusetts prohibits employers from requesting or requiring applicants and employees to take lie detector tests. A notice to this effect must be included on employment applications. Further, effective as of July 1 2018 as part of the pay equity law, employers will not be permitted to ask the wage and salary history of job applicants.
Click here to see the full article.