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- Last verified: 8/09/2012
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Northeastern University School of Law, J.D., 1993
University of Massachusetts at Amherst, B.A., 1984
Massachusetts Bar Association
MCAD Discrimination Training Certified since 2004
South Middlesex Legal Services
About Jack Merrill
Jack K. Merrill specializes his practice in employment law, civil litigation and small business law. He counsels companies on employment matters; drafts contracts, leases and other business/corporate documents; litigates all types of civil matters in state and federal courts; handles discrimination, sexual harassment, and other cases at the Massachusetts Commission Against Discrimination (MCAD); litigates landlord/tenant disputes; represents local towns in municipal matters; negotiates and brings/defends enforcement actions in noncompetition disputes; provides training and other education to businesses; drafts employment manuals; and handles other matters. Mr. Merrill has an extensive background in practical and intellectual areas of civil litigation and employment law. His legal practice includes private consultations and arguments before administrative agencies and state/federal courts. He is admitted to practice law in the Commonwealth’s state and federal courts.
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Legal Questions & Answers
This is a difficult problem for you to deal with. While it may be true that the associate is damaging your reputation by false accusations, forcing your employer to discipline him/her is probably not plausible. Taking legal action is impractical.
Under Massachusetts law, there is no requirement that employers treat their employees fairly, reasonably, or in any other particular fashion. Laws regulate the payment of wages, the prevention of discrimination, and other discrete areas of the working relationship. They do not require employers to treat their workers well. Instead, the employment relationship is governed by what’s called the at-will rule. It provides, in sum, that work is effectively a day-to-day endeavor. Either employer or employee is free to end the relationship at any time, for any reason, with or without notice. The effect of this rule is to permit a broad range of conduct in the workplace, subject to the parties’ individual decisions how to react to it. As a worker, then, you cannot force your company to react in any particular way to this associate. You have no “right,” at least, to do so.
Your situation presents substantive legal issues that are complicated by practical realities. Though it’s true that employers are required to pay workers their wages without delays like these, forcing them to do so through a legal action takes time and can be very costly. Massachusetts law on employee wage payments is clear and well-established. Under what is called the state’s Wage Act, employers must pay earned wages to their employees within specified time limits, normally weekly. Wages include a worker’s earned pay, whether calculated by salary, hours worked, or otherwise. Wages also include commissions when they are definitely determined and due. Employers who fail to comply with the Wage Act face stiff penalties that include triple damages for improperly withheld pay and reimbursement of any costs or legal fees a worker incurs enforcing his/her rights. Employees can bring claims for unpaid wages in court, but must first file a complaint with the Massachusetts Attorney General’s office. In your case, wages are being paid, albeit late. You should probably take one of two actions. First may be to talk to your employer to explain the difficulties you are experiencing and, hopefully, obtain assurances that future wages will be paid on time. Second is to file an attorney general complaint for unpaid wages. That would/could involve only the wages due but unpaid at the particular point at which the complaint is filed. This second option could have the effect of snapping your employer to attention. Remember that, though either of these suggested actions might raise concerns that your employer will retaliate for your complaints, the Wage Act also includes anti-retaliation provisions that provide, in effect, that you cannot be punished for complaining about the law’s violation.
Although the law governing criminal record information was amended in 2010 to provide more protections to job applicants, the changes do not appear to reach your situation. Under the revised Criminal Offender Record Information (CORI) law, employers generally cannot ask for criminal histories on a written job application that is completed prior to a job interview. The new law does not expressly reach questions at the interview stage, however, and historical information regarding felony convictions has traditionally been permissible regardless of age. While this is not true in the case of misdemeanor convictions such as drunkenness, disturbing the peace, or speeding, you unfortunately have a felony history and do not appear to be protected by law.
The propriety of random drug testing of employees depends upon the type of work being performed. Under Massachusetts law, individuals have a protected privacy interest that prevents certain intrusions into their lives. Employers, conversely, have a strong interest in ensuring the safety of their workers and the public. State court have attempted to balance these competing interests when it comes to drug testing and, equally as important, the action an employer can take when a test is positive for drug use. Generally, employees whose jobs involve the use of machinery, cars and trucks, and other potentially dangerous equipment can be randomly tested. If you fit into this category or if your company has some other legitimate reason for the tests, it was probably permissible in your particular case.
Random tests should be conducted in accordance with carefully considered procedures that both ensure accurate results and protect employee privacy to the extent possible. Again, Massachusetts courts have required a balancing of privacy and business interests in this area. They’ve also held that, with random testing, summary termination of employees for a single failed test may be improper. In your case, this question clearly exists, as does a related one — why were you let go for failing the test when others were not? As to this latter point, a comparison between your co-workers and you may be in order to determine whether illegal discrimination occurred. If you were let go due to your gender, race, etc., discrimination may have occurred. To explore this issue as well as ones surrounding the propriety of the drug test in the first place, you should consult an employment attorney.
Unfortunately, the law in Massachusetts does not expressly protect you from a bad job reference. Your former employer is free to say what it wants about your work performance with few restrictions. Although you might be able to pursue damages for a patently false reference that causes you to lose out on a job, doing so will not be easy. You would probably need to proceed under legal standards that generally bar people from defaming — also known as libeling or slandering — another person by the publication of false information. This type of case, however, is very difficult to prove, particularly in the employment context. For starters, you would need to show both that any statements made by your former employer were factual as distinct from mere opinions, which are protected by law and normally cannot be acted upon. You’d then have to prove the statements were false, were made to a prospective employer who would otherwise have hired you, and caused you to lose out on a job opportunity. If you succeeded in all this, your damages could be measured by the amount you lost from missing the job opportunity. These damages, however, need to be mitigated; that is, you need to continue trying to find work in a diligent fashion and, once you do, any amount you make will be deducted from the damages you’d otherwise be entitled to. Given all this and the heavy expenses normally associated with litigation, suits for defamation in this area rarely make much sense.
The answer to your narrow question is pretty straightforward -- yes, you would likely be considered an hourly employee in a court of law under the circumstances you describe. Whether and how much overtime you might be entitled to is much more complex.
Overtime pay is mandated by federal and state laws, but exceptions are numerous. Entitlement can turn on specific job duties or on the category of work performed. Employees who qualify must receive 1.5 times their regular hourly rates of pay for all hours above 40 in a workweek. Contrary to popular belief, paying an otherwise overtime-eligible worker a salary does not affect an employer's pay obligation. Paying a salary is, however, a requirement for the exemption of certain management personnel from overtime laws. Employers who don't carefully honor an agreement to pay a salary -- that is, the same amount of wages for every week, regardless of sick time or missed days, and without docking for medical appointments or other personal time out of the office -- can convert their otherwise exempt workers into overtime eligible employees. Your description suggests that this occurred, since your employer apparently paid you an hourly rate with some overtime pay. It should have records of your hours worked. It the company owed you overtime for, say, 6 hours weekly but you in fact worked more overtime hours, it likely failed to pay you what is due. Penalties for transgressions of the law include triple the amount of unpaid wages, interest, and legal fees.
To determine where you in fact stand here, you'll need to consult an employment attorney for a review of your job duties and the treatment of your pay. If you have your own records of the hours you worked, the information will be helpful.
In terms of job references, there are few limits to worry about. You may ask pretty much any questions you want and think are important, with obvious exceptions for subjects that may touch upon an applicant’s race, gender, religion, etc. You are correct that a former employer faces more risk in the job reference process than a prospective new employer. He/she needs to be careful to provide only accurate factual information. In addition, and though former employers are legally free to offer opinions about their employees, they are normally careful to avoid derogatory remarks. That’s because making negative comments can lead to allegations of defamation, something every company wants to avoid, regardless of the merits of such a claim.
It is largely for this reason that many employers now decline to give job references at all. They simply provide confirmation of job titles and dates of employment. This is, in fact, the preferred policy, legally speaking, as it avoids risks to employer and employee alike. Practically speaking, a former employer has no interest in keeping its old workers from finding jobs. On the contrary and particularly where a worker was fired, the opposite is true. The best development for an employer that has terminated an employee is for that worker to land a new job. This gets him/her focused on the future rather than any past disputes. For this reason, it may be hard for you to get any information at all via direct contact with an applicant’s former company. You may be better off seeking personal references from your applicants and contacting them for insights.
If you think one of your workers is stealing, undertake your own investigation to start. I trust you have a sense how this is being done and can review financial or bank records for evidence. You might also find other ways to watch a particular employee’s conduct on the job, either yourself or by enlisting another employee to help you. If none of this is practical or if it simply does not work, a direct confrontation with the worker may be in order. You might be surprised to learn that thieves often fess up when confronted, especially if they are surprised by questioning, when even a denial can suggest guilt because of the way it is delivered. Remember that as an employer, you are generally free to terminate your employees when you want, with or without cause. If you believe a worker is stealing, you can summarily terminate him/her for that reason. If you obtain evidence of actual theft, job termination and a call to the local police may be in order.
Jack Merrill is a Boston, MA employment lawyer providing legal services to employees, employers and businesses throughout Massachusetts and the Boston Metrowest and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts