News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Employment Law

capitol-building-415839_1920By Sophie Nguyen, Law Student Intern

Eight years ago, a teacher in San Diego was fired from her job for experiencing domestic violence. After her abusive ex-husband showed up at the school where she taught to confront her, the school decided that her mere presence posed too much of a “risk,” and fired her, despite the fact that her ex-husband was arrested and later incarcerated. Later that year, California passed a law prohibiting this type of discrimination against people who were experiencing domestic violence. This teacher’s story is not unique: 74% of domestic violence survivors report that they have suffered some form of abuse at work. As a Washington, D.C. court noted, quoting testimony provided at a legislative hearing: “Studies have shown that 96% of employed domestic violence victims experience problems at work related to the abuse and that 30% lose their jobs due to domestic violence.” While many of us think of domestic violence as an issue that resides within the home, the reality is that it inherently affects survivors’ ability to function in the workplace. Employment is also often the only way for survivors to achieve financial independence from their abusers; without it, many survivors must remain with their abusers. Employers have a significant role to play in addressing domestic violence, both by protecting their employees at work and ensuring that their employees can remain employed even while dealing with domestic violence situations. Despite these facts, 65% of companies do not have a formal workplace domestic violence prevention policy.

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pexels-photo-357514In Massachusetts, as in many other states, the Legislature has adopted a personnel record law that specifies documents and information that every employer must maintain in an employee’s personnel record, such as documents relating to an employee’s qualifications and possible promotions, transfer, or discipline. For instance, many employers must include an employee’s job description and rate of pay, job application and resume, performance reviews, warnings, and termination notices. Employees have the right to review or receive a copy of their personnel records on request, and employers must notify employees if negative information is put into their personnel records. In order to promote accuracy of personnel records, the law allows employers and employees to agree to remove or correct information in these files, and if an employee disagrees with information contained in their personnel record, they have the explicit right to submit a written response, which the employer must include whenever they transmit the disputed information to a third party (such as a potential future employer).

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Gordon-CollegeTwo weeks ago, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Deweese-Boyd v. Gordon College, a case which tests the limits of the “ministerial exception” and the legal protection it provides for religious employers. CONTINUE READING ›

By Lilly Gill, Law Student Intern

mother-5354379_1920The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.

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By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.

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photo-1444840535719-195841cb6e2bDue to the COVID-19 pandemic, many parents are exploring new arrangements for education and childcare for their children. Families who can afford to are creating “micro-schools” or “school pods”—groups of a few families with similar-aged children who hire a teacher to provide lessons in the families’ homes. Others are simply looking to hire extra childcare help for children who are out of daycare or doing school remotely.

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woman-in-blue-sweater-lying-on-bed-3873179-scaledIf you have been exposed to COVID-19 or have COVID-19, the last thing you want to worry about is your workplace rights and obligations. However, both you and your employer have certain rights and obligations to ensure your health and safety, and the health and safety of people you come into contact with at work.

What do I do if I’ve been exposed, tested positive, or have symptoms of COVID-19?

The Massachusetts Attorney General has made clear that employers can require employees who have been exposed or have a family member who has been exposed to stay out of work, even if quarantine has not been recommended. If you exhibit symptoms of COVID-19, your employer can also require you to stay out of work even if you have not tested for COVID-19. If your employer requires you to stay out of work, you are eligible to apply for unemployment benefits, and may also be eligible for the new paid sick leave benefits the federal government recently enacted.

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girl-1641215_1920The Families First Coronavirus Response Act (H.R. 6201) provides $100 billion dollars worth of relief to Americans coping with the coronavirus outbreak.  Below is a summary of the provisions that affect workers most directly. The bill goes into effect on April 2, 2020, and expires December 31, 2020.

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cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 

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person-holding-thermometer-3873171-scaledOn March 10, Governor Charlie Baker declared a state of emergency in Massachusetts to combat the ongoing threat posed by COVID-19.  As of this writing, Massachusetts had 108 cases confirmed, and experts warn that the virus will likely continue to spread.  What do our state and federal leave laws provide for employees who contract COVID-19, or who have family members who contract COVID-19? 

First, and foremost, Massachusetts guarantees earned sick time to the vast majority of employees.  Workers earn and may use up to 40 hours of job-protected sick time per year.  That’s roughly five days of leave.  And the law applies even to part-time workers: workers earn at least one hour of sick leave for every 30 hours worked.  Workers can use that earned time to care for themselves or a “child, spouse, parent, or spouse’s parent.”  Employers with 11 or more employees must pay employees who take that sick time.  Small businesses that employ fewer than 11 employees must provide the sick time but are not obligated to compensate employees who use sick time.  To utilize sick time, an employee must provide an employer with some notice – employees must make a “good faith” effort to notify their employers in advance of any time taken.  In most circumstances, employers cannot insist on specific documentation; the law only allows employers to request additional medical or other documentation from an employee who uses 24 consecutive hours – or three days – of earned sick time.  

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