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Boston, Massachusetts 02108-3002

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Fax: (617) 720-3693

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State Court Joins Federal Court to Uphold Earned Sick Time Law, Employers Try to Navigate New Law Effective July 1, 2015

Tuesday, July 14, 2015

By: Curtis B. Dooling

A Massachusetts District Court judge upheld the earned sick time law on Monday (July 13), the second court to uphold the new law after construction contractors unsuccessfully challenged the law. A U.S. District Court judge dismissed their claims last week.

The earned sick time law, which requires nearly all Massachusetts employers to provide earned sick time to their employees, was approved by  voters last  November and  went into effect  July 1, 2015.

Basic Summary of Sick Time Law

Employees who work for employers having eleven or more employees can earn and use up to 40 hours of paid sick time per calendar year, while employees working for smaller employers can earn and use up to 40 hours of unpaid sick time per calendar year. Employers must provide all employees, including part-time and seasonal employees, one hour of sick time for every 30 hours worked. The maximum amount of sick time an employee can accrue in one year is 40 hours.

An employee can use earned sick time if required to miss work for the following reasons: (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child.

Employees can carry over up to 40 hours of unused sick time to the next calendar year, but cannot use more than 40 hours in a calendar year. Employers are not required  to pay employees for unused sick time at the end of their employment. If an employee misses work for a reason eligible for earned sick time, but agrees with the employer to work the same number of hours or shifts in the same or next pay period, the employee will not have to use earned sick time for the missed time, and the employer will not have to pay for that missed time. Employers may not interfere with, restrain or deny the exercise of an employee’s rights under the law and employers may not retaliate against employees for exercising their rights under the law.

The Massachusetts Attorney General’s Office (“AGO”) has issued final regulations (available at http://www.mass.gov/ago/docs/regulations/940-cmr-33-00.pdf) regarding the interpretation and enforcement of the law.

A Brief Summary of the AGO’s Final Regulations For  Employers and Employees

  • An employer’s paid time off policy already in place may be substituted for earned sick time as long as 40 hours of time off under the policy complies with the following:
    • Accrual at the rate of no less than one hour for every 30 hours of work;
    • Pay at the employee’s same hour rate;
    • Access to time off for all uses authorized under the law;
    • Availability with the same rules concerning notice and documentation;
    • Offers the same job protections.
  • Employees must be paid at the “same hourly rate” when using earned sick time, with specific carve-outs for tipped employees, employees paid on commission and salaried employees.
  • Employees may accrue and use their time if their primary place of employment is in Massachusetts.
  • The smallest increment of sick time employees may use is one hour.
  • Employees may not use sick time as an excuse to be late for work. If an employee engages in a clear pattern of taking leave on days just before or after a weekend or vacation, an employer may discipline the employee for misuse of sick leave time unless the employee provides proof or verification of authorized use of sick leave.
  • Employees may retain earned sick time when they are terminated and rehired with certain restrictions.
  • Employees must provide notice to their employers when using sick time except in cases of emergency.
  • Employers can require written documentation (within seven days, with certain exceptions) for an employee’s use of sick time in the following circumstances:
    • if the leave exceeds 24 consecutively scheduled work hours;
    • exceeds three consecutive days on which the employee was scheduled to work;
    • occurs within two weeks before an employee’s final scheduled day of work, except in cases of temporary employees;
    • occurs after four unforeseeable and undocumented absences within three-month period;
    • for employees aged 17 and under, occurs after three unforeseeable and undocumented absences within a three-month period.

Understandably, many employers are concerned with the daunting task of implementing a sick leave policy that fully complies with the statute and the newly-enacted regulations. Pierce & Mandell’s experienced employment law attorneys are here to guide employers through this process. We strongly encourage employers to contact us in order to proactively implement compliant sick leave policies.

Employment Law Rights and Sexual Harassment Laws in Massachusetts

Thursday, February 28, 2013

Employment Law Rights in Massachusetts: The Latest Developments from the Massachusetts Commission Against Discrimination on Sexual Harassment and Discrimination

By: Michael C. Fee

Massachusetts General Laws c. 151B prohibits sexual harassment in the workplace.  Sexual harassment is defined as “sexual advances , requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (a) submission to or rejection of such advances is made either explicitly or implicitly a term or condition of employment and (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or sexually offensive work environment.

In order to prove a claim of hostile work environment harassment, a complainant must prove that he or she was: (1) subjected to sexually demeaning conduct; (2) the conduct was unwelcome; (3) the conduct was objectively and subjectively offensive; (4) the conduct was sufficiently severe or pervasive as to alter the conditions of employment and create an abusive work environment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. See College-Town Division of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987); Ramsdell v. Western Mass Bus Lines, Inc., 415 Mass. 673, 678 (1993).

In a case recent decided by the Massachusetts Commission Against Discrimination, Avila v. J&S Restaurant, et al., Docket No. 09-BEM-01557, a complainant alleged that she was subjected to unwelcome touching, comments and propositions of a sexual nature by her restaurant owner boss.  She testified that such conduct occurred on a number of occasions and was demeaning, intimidating and threatening to her.  Notable to the Hearing Officer was the fact that the complainant was a relatively small woman, and the respondent a very tall, large man.  The complainant alleged that she was intimidated by his size and physical strength, and that his conduct included a physical altercation that began with the boss cornering her and touching her breast. The incident frightened and intimidated the woman sufficiently to cause her to leave her employment and to file a criminal complaint for assault and battery.

In proceedings before the Massachusetts Commission Against Discrimination, evidence of sexual harassment must be considered from the perspective of a reasonable person in complainant’s position, and by evaluating all the circumstances, including the frequency of the conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the worker’s performance .  See Scionti v. Eurest Dining Service’s, 23 MDLR 234, 240 (2001) citing Harris v .Forklift Systems, Inc., 510 U.S. 17 (1993).  Also relevant is the subjective standard of sexual harassment, which requires a determination as to whether the complainant personally experienced the behavior to be unwelcome. See Couture v. Central Oil Co., 12 MDLR 1401, 1421 (1990).  In this case, the Hearing Officer determined that the Complainant met all the requisite standards of proof.

In order to find that a worker who has left a job was constructively discharged, the evidence must show that the conditions under which complainant worked were so intolerable that a reasonable person would have felt compelled to resign. Choukas v. Ocean Kai Restaurant, 19 MDLR 169 (1997).  On all of the evidence in Avilla, the Hearing Officer determined that the woman had no option but to resign her employment after the physical confrontation with her boss. Prior to those events, she was intimidated, demeaned and humiliated by her employer’s unwelcome sexual comments and propositions, but his actions of that evening caused her to feel threatened and fearful.  The evidence also showed that there was no individual in the workplace with whom complainant could lodge a complaint, no avenue for seeking relief, and that she was without expectation that the situation would improve.  On those facts, the Hearing Officer found that the woman’s refusal to return to work after the altercation was the result of a constructive discharge.

Upon a finding of unlawful discrimination, the Massachusetts Commission Against Discrimination is authorized to award remedies to make a complainant whole and to ensure compliance with the anti-discrimination statutes.  G.L. c. 151B, §5; Stonehill College v. MCAD, 441 Mass. 549, 576 (2004).  The Commission may award monetary damages for, among other things, lost wages and emotional distress suffered by a complainant as a direct and probable consequence of the unlawful discrimination.  In this case, the woman was awarded lost wages and tips for a period exceeding six months after she left her employment, as well as damages for emotional distress in the amount of $50,000.00.  While awards for emotional distress are not commonplace, when appropriate they must be fair and reasonable, as well as proportionate to the harm suffered.  It is also the burden of the complainant to show a sufficient causal connection between the respondent's unlawful act and the complainant's emotional distress. Stonehill College v. Massachusetts Commission Against Discrimination, et al., 441 Mass. 549, 576 (2004).  In this case, the woman presented substantial evidence that her employer’s conduct caused her grievous mental pain and suffering, and as a result, the Commission felt a substantial monetary award for her emotional distress was warranted.

If you believe that your employment law rights have been violated, or are an employer with questions on how best to comply with statutory obligations, contact the employment law professionals at Pierce & Mandell.

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