Tag Archives: Earned Sick Time Act

Employee Handbooks: Have you covered the basics?

By on August 3, 2015

Many companies use an employee handbook or manual, which can be a useful management tool when properly utilized. An effective handbook sets forth company policies in plain English and covers every important company policy. Clarity is vital when implementing any kind of policy, and employees will benefit from understanding both what the company offers and what it expects in return. Although an employee handbook is recommended for most businesses, it is possible to do more harm than good, particularly when policies are poorly presented, or if the company sets forth a series of policies but fails to follow them.

There is no one-size-fits-all employee manual. Some manuals that just cover the basics may be ten to fifteen pages long, while some large corporations have manuals numbering into the hundreds of pages. In general, an employee handbook should serve as an employee resource, a convenient way for a company to communicate with its employees.

Most handbooks set forth employer commitments, which are useful to provide clarity to employees and as a partial defense to some employment-related claims. For example, employers should include policies relating to discrimination, sexual harassment, workplace bullying, drug and alcohol use, and violence, and then state how complaints are handled. This ensures that employees know that the company will not stand for any kind of dangerous and illegal conduct. Employees will feel safe in the workplace, and should a problem occur, the employer will be prepared to handle the problem and minimize the impact. For example, should an employer face a claim from an employee regarding sexual harassment, an anti-sexual harassment policy in a handbook will demonstrate that the employer has taken proactive steps to comply with the law and provide a safe environment, which can be helpful in resolving the claim with a minimal cost.

Employers and employees will also benefit from clearly stated internal policies and procedures related to the day-to-day operations of the company. For example, employees should be well aware of the company’s dress code, the company’s standard business hours, what sort of lunch breaks and other breaks are permitted, as well as how the company handles tardiness and unexcused absences. It is also wise to set forth how the company handles various kinds of leave: paid vacation is considered a “wage” in Massachusetts, and the Commonwealth recently enacted the Earned Sick Time law. There are also laws governing time off for holidays and jury duty. The various employment-related laws provide benefits and obligations to employers and employees, and so it is in everyone’s best interest to set forth how the company handles these matters in writing.

Today’s technology focused world has many traps for the unwary. Companies of all sizes have begun implementing policies related to the use of social media in (and sometimes outside of) the workplace, the use of company email, and the requirement to maintain the confidentiality of sensitive company information. Although risk can never be eliminated, an effective handbook can minimize the company’s exposure to lawsuits and costly government investigations.

An effective handbook can aid with both hiring and firing. On the hiring side, there is a real cost to bringing on a new employee, as that person must spend time learning the ways in which matters are handled by the company. A good handbook will ease the transition, minimizing the time that must be spent learning the company’s system and also acting as a resource for questions the employee has regarding company policy. On the firing side, an effective handbook will set forth grievance and termination procedures, so both the managers in charge of firing and the employees understand what is expected of them. A handbook also aids an employer in fighting off wrongful termination lawsuits by showing that a particular policy was in place, an employee was warned about violating such policy, and then the employee was ultimately terminated for violating the policy. Further, fired Massachusetts employees are entitled to unemployment assistance unless the employer can demonstrate one of a few factors, including the employee’s deliberate violation of a company policy. A handbook, read and signed by each employee, is evidence of the existence of company policies.

Any company with more than a handful of employees should consider developing an employee handbook. Consulting with a qualified employment attorney will ensure that the handbook complies with current law and does not expose the company to unnecessary risk.

Enforceability of Massachusetts’ New Earned Sick Time Act

By on March 2, 2015

By Michael T. Mullaly

On November 4, 2014, Massachusetts voters approved the Earned Sick Time Act (“Act”). The Act is codified at G. L. c. 149, § 148C and becomes effective on July 1, 2015. The application of the Act to unionized employees, however, raises complex legal issues and is already the subject of active litigation in Massachusetts.

The Act applies to all private-sector employers in Massachusetts, including individuals, and requires employers to credit each employee with one hour of earned sick time for every thirty hours worked by such employee. In the case of an employer with eleven or more employees, each employee is entitled to accrue and use up to forty hours of earned sick time — with pay — per calendar year. In the case of an employer with ten or fewer employees, each employee is entitled to accrue and use up to forty hours of earned sick time — without pay — per calendar year. Additionally, the Act provides for the limited “carrying over” of unused earned sick time into the following calendar year.

Under the Act, earned sick time may be used for a broad range of purposes relating to the mental and physical health of, or the effects of domestic abuse upon, the employee and certain of his or her relatives.

The Act provides strong protections against employer retaliation. Moreover, any violation of the Act, even an unintentional one, entitles the aggrieved employee to recover three times his or her actual damages, together with reasonable attorneys’ fees.

The administrative burden and considerable exposure that arise from the Act demand the attention of every employer in Massachusetts, irrespective of its size or sophistication. Indeed, the above description sets forth only a brief summary of the Act, which must be analyzed in its entirety and with careful attention to the circumstances of each employer.

Particularly complex legal questions arise where the Act must be applied to unionized employees. The source of this complexity is federal preemption, a legal term used to describe the situation that results when Congress demands, or the Constitution itself indicates, that only federal law may govern a particular matter. (Ordinarily, there is no prohibition against states enacting legislation addressing the same subject matter as federal law, provided that the state law does not conflict with or undermine the policy aims of the federal law.) Although preemption is, relatively speaking, somewhat rare, labor-management relations is one of the principal areas in which it does appear.

There are three distinct types of federal preemption in the realm of labor law. The Act implicates one type in particular, which is generally called “Section 301 preemption” in reference to its origin in § 301 of the Labor Management Relations Act (“Section 301”). See 28 U.S.C. § 185. Section 301 would appear simply to confer a right to sue in federal court upon a plaintiff alleging the violation of a contract between an employer and a labor union representing an employee (i.e., a collective bargaining agreement). The United States Supreme Court, however, has long read Section 301 to articulate a strong policy interest in favor of having all such contracts interpreted according to a single, nationally uniform body of law (i.e., federal law). As a result, the actual effect of Section 301 is to “preempt” — that is, extinguish — any state-law claim that requires the interpretation of a collective bargaining agreement. Some preempted state-law claims (e.g., for breach of contract) can be construed as claims under Section 301 and then be adjudicated under federal law. In other cases, however, the complaint must be dismissed for failure to state a claim.

Notably, the Act contains many provisions that, in the case of a unionized claimant, appear to require an interpretation of the underlying collective bargaining agreement. For example, in cases where the Act requires an employee to be paid for his or her use of earned sick time, the employee must be “compensated at the same hourly rate as the employee earns from the employee’s employment at the time the employee uses the paid sick time.” The Act also provides that “nothing in [the Act] shall be construed to diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan . . . that provides to employees greater earned sick time rights.” Further, the Act states that an employer may satisfy its obligations by means of “a paid time off, vacation or other paid leave policy” that makes “available an amount of paid time off sufficient to meet the accrual requirements of [the Act],” provided that such policy permits time off “for the same purposes and under the same conditions as earned paid sick time under [the Act].” Determination of the applicable rate of pay, of the comparative generosity of the labor contract and the Act, and of the compliance of any alternate paid time off policy all seem to depend upon an analysis of the collective bargaining agreement applicable to the claimant. For this reason, there is a strong possibility that unionized employees seeking to bring actions under G. L. c. 149, § 50 for violation of the Act will be thwarted by Section 301 preemption.

Section 301 preemption may likewise preclude the Attorney General from pursuing civil sanctions against employers alleged to have violated the Act with respect to unionized employees. In fact, this is among the relief sought in a recent petition for declaratory relief filed by a group of employer associations in the construction industry. See Labor Relations Division of Construction Industries of Massachusetts et al. v. Commonwealth of Massachusetts, No. 1:15-cv-10116 (D. Mass.). The litigation remains in its beginning stages, but may ultimately provide a greater measure of certainty in this area before the Act becomes effective on July 1, 2015.