Tag Archives: employees

“Ban-the-Box” Update for Employers

By on May 21, 2018

Since 2010, employers in Massachusetts have been prohibited, under the Criminal Offender Record Information (“CORI”) Reform Act, from requiring a job applicant to check a box indicating that he or she has a criminal history (the “ban-the-box” law).  Employers are also prohibited from requiring applicants and employees to disclose certain criminal information, including arrests and criminal cases that did not result in a conviction; first convictions for various misdemeanor offenses; misdemeanor convictions where the date of conviction or release from incarceration occurred five or more years prior to the date of the employment application (in the absence of an intervening conviction); juvenile records; and sealed criminal records.

Under new amendments to the CORI Reform Act signed by Governor Baker on April 13, 2018, and slated to take effect on October 13, 2018, employers may not inquire into misdemeanor convictions where the date of the conviction occurred three or more years from the date of the application (unless there was an intervening conviction).  In addition, employers may not ask applicants about “a criminal record, or anything related to a criminal record, that has been sealed or expunged . . . .”  Finally, employers must include the following statement on any application “which seeks information concerning prior arrests or conviction of the applicant”: “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

Employers are advised to take note of these important changes and revise their applications, and application processes, accordingly.

Federal Judge Allows Tort Claims Over Rescinded Job Offer to Proceed

By on August 10, 2016

A federal court judge has allowed a plaintiff to proceed with claims against a Massachusetts company that rescinded a job offer shortly after the plaintiff left his prior job. The defendant, Loomis, Sayles & Co., is an international investment firm that had intended to launch a new hedge fund. Over a course of six months, the defendant recruited plaintiff Vishal Bhammer, then employed by a different financial services firm in Hong Kong, to join the new fund.

During the recruitment process, the defendant allegedly informed Mr. Bhammer that the new fund was an opportunity that warranted leaving his current job and relocating his family to Singapore. The defendant allegedly emphasized that the fund had an “appropriate and well-defined investment process, strategy, and philosophy.” Several of the defendant’s employees allegedly made similar statements to Mr. Bhammer via Skype video calls, conference calls and in-person meetings. In early June, 2015, the defendant allegedly told Mr. Bhammer that he should not delay in giving notice of his resignation to his current employer. Mr. Bhammer’s resignation became effective on July 5, 2015. On July 16, 2015, the defendant informed Mr. Bhammer that it had decided to abandon the new hedge fund, and thus Mr. Bhammer’s job no longer existed. The defendant allegedly told Mr. Bhammer that the fund was abandoned in part because the defendant did not approve of the Fund’s strategy and its odds of success were too low.

Mr. Bhammer filed suit on December 23, 2015, alleging three claims: misrepresentation (intentional and negligent), tortious nondisclosure, and tortious interference. Shortly thereafter, the defendant moved to dismiss all counts, and the Court denied the motion. The defendant moved to dismiss the misrepresentation claim on several grounds, including that the complaint did not meet the strict specificity requirements of the Federal Rules of Civil Procedure.  The Court disagreed, finding that the complaint contains several allegations that the defendant intended to move forward with the new fund, was committed to the fund, and that there was no reason Mr. Bhammer should delay in moving his family to Singapore. The defendant also argued that such statements are not actionable fact statements, but instead merely opinions. The Court acknowledged that the distinction between opinion and fact is “often blurry,” and that the overall circumstances must be evaluated to determine the true meaning of the language used. While the defendant’s representation of the fund’s investment strategy was “appropriate and well-defined” could be considered an opinion, those words imply that the defendant believed the strategy was appropriate and well-defined, implying that it was an opinion grounded in fact. The Court found that the facts alleged covered both intentional misrepresentation and negligent misrepresentation (the claims are similar but negligent misrepresentation requires a less demanding standard).

“Tortious nondisclosure,” perhaps the most interesting claim due to its rare appearance, is a tort arising out of a duty to disclose. It is distinct from misrepresentation in that it covers what a party does not say. The Court found that the facts alleged in the complaint represented, at a minimum, circumstances in which the defendant had a duty to disclosure matters necessary to prevent its partial statement of fact from being misleading. In other words, if Mr. Bhammer’s allegations are true, then the defendant had an obligation to disclose its true belief regarding the hedge fund.

The third claim, “tortious interference,” requires a plaintiff to prove that it had an advantageous relationship with a third party (including an employment relationship), the defendant knowingly induced a breaking of the relationship, the interference was improper in motive or means, and the plaintiff suffered harm. The parties here dispute whether the defendant’s conduct was must be directed at a third party, or whether conduct directed at the plaintiff is sufficient. All of the defendant’s conduct was directed at Mr. Bhammer, not at his then-current employer. The Court stated that recent Massachusetts cases do not require the defendant to have induced the employer to break the relationship. Put differently, preventing the plaintiff from performing its own end of the contract is apparently sufficient under Massachusetts law, and this claim was also allowed to proceed to the next stage of litigation.

One lesson from this case is that employers should recruit new employees with care, particularly when such employees are leaving current jobs for a new opportunity. As the Court noted, the distinction between fact and opinion is often blurrier than one might think, and thus employers must ensure that their recruiters and senior staff avoid over-promising. Concerned parties should contact a Massachusetts employment attorney to review the recruitment process.

Massachusetts Enacts Equal Pay Law

By on August 3, 2016

On August 1, 2016, Massachusetts governor Charlie Baker signed the equal pay law, a law that has been working through the legislature since 1998. The law takes effect on July 1, 2018.  The law bars discrimination on the basis of gender in the payment of wages, including benefits and other compensation, for “comparable work.”  The statute defines comparable work to mean work that requires substantially similar “skill, effort and responsibility” and is performed under similar working conditions. The law allows variation in wages based on:

  • seniority;
  • merit;
  • productivity as measured by quantity or quality of sales or production;
  • geographic location;
  • education, training, or experience reasonably related to the job; or
  • regular travel.

The law provides several direct remedies for violations with a three-year statute of limitations.  Aggrieved employees can bring a lawsuit on behalf of themselves and similar situated employees, and recover the amount of wages underpaid, as well as an additional amount of wages underpaid as liquidated damages (amounting to double damages), plus reasonable attorney’s fees.  Employers also face liability for retaliation under the law.

An employee’s previous wage or salary history may not be used as a defense, but the law does provide employers with one affirmative defense:  if, within the prior three years and before a lawsuit is brought, employers complete a good faith self-evaluation of its pay practices and demonstrate that reasonable progress has been made towards eliminating pay differentials based on gender, liability under this law can be avoided. Employers may design their own self-evaluations, if they are reasonable in detail and scope in light of the employer’s size.

Finally, this law makes illegal some common practices.  Employers may not bar employees from discussing their own wages or the wages of fellow employees.  Further, employers may not screen job applicants based on salary history or even ask about prior wages or salary history.  However, prospective employees may provide written authorization for a prospective employer to confirm prior wages, but only after the prospective employer makes an employment offer.

The attorney general is empowered to bring its own lawsuit based on equal pay violations and may issue regulations interpreting this law, which can include templates for employer self-evaluations.  Although gender discrimination has long been illegal in Massachusetts, this law provides employees with new avenues for relief and places additional restrictions on employers. Employers should consult with Massachusetts employment attorneys to confirm that hiring practices will comply with the law and to ensure that potential liability is limited through self-evaluations.

Massachusetts Supreme Judicial Court Interprets the “Tips Act”

By on April 16, 2015

Massachusetts law protects the “tips” or gratuities that waiters and similarly employed individuals typically receive from customers.  That law is commonly known as the Tips Act  (M.G.L. ch. 149, sec. 152A). The Tips Act provides that all tips must be given to the employees that earned the tips, and that tips cannot be shared with managers or the employer itself.  The Tips Act applies to three categories of employees:   “wait staff employees,” “service employees,” and “service bartenders.”  “Wait staff” includes waiters, waitresses, bussers, and counter staff who serve food or beverages (or bus tables) in a restaurant or banquet facility and who have no managerial responsibility.  “Service employees” is a catch-all definition that includes any employees who provide services directly to customers and who customarily receive tips, but also have no managerial responsibility.  “Service bartenders” are employees who prepare beverages to be served to customers by other employees.

A recent Supreme Judicial Court case, Meshna & others vs. Scrivanos & another, interpreted some key provisions of the Tips Act.  In Meshna, current and former Dunkin’ Donuts employees filed suit over a “no-tipping” policy found at some individual stores that prohibited employees from receiving tips from customers.  The plaintiffs argued that the Tips Act prevented employers from instituting a “no-tipping” policy.  The defendants prevailed, with the Court finding that the Tips Act allows employers to have a “no-tipping” policy so long as the policy was clear to customers.

The Court went on to consider the scenario where an employer has a no-tipping policy, but does not communicate that policy to customers.  The Court held that if the policy is not communicated, then any tips left at the store belong to the employees, as customers have a reasonable expectation that the money left as tips will be given to the wait staff.  As long as the policy is explicitly stated by the employer, however, even money left by customers may be retained by the employer without violating the Tips Act, regardless of the customer’s intent.  The Meshna holdings are consistent with existing interpretations of the Tips Act.

Some restaurants and banquet halls impose an additional “administrative” fee on their invoices and contracts. Under the Tips Act, employers are permitted to impose an “administrative fee,” or something similar, but such fees must be clearly stated to all customers (in a contract or on the bill itself) that the administrative fee is paid to the employer or management.  Because the Tips Act defines “service charge,” “tip,” and “gratuity” as synonyms, employers that desire to include an additional charge beyond the cost of the food, should avoid the term “service charge” and use “administrative fee” or “management fee” as a best practice.  Massachusetts Courts want to see evidence that the employer informed customers that any extra fees do not represent a gratuity for employees.  Should you have questions regarding whether your invoices or current practices comply with the Tips Act, consult your employment law attorney for a definitive answer.