In a decision recently issued in the case of Maldonado et al. v. Cultural Care, Inc. et al., a group of "local childcare consultants" ("LCCs") brought a class action suit against Cultural Care, a company that places foreign au pairs with host families located in the United States. The plaintiffs alleged that Cultural Care and its officers violated the Fair Labor Standards Act ("FLSA") by misclassifying them as independent contractors and paying them less than the minimum wage required by both the FLSA and state law in Massachusetts, New York, and California. Cultural Care moved to dismiss the plaintiffs' claims based on a lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.
In a recent Memorandum and Order, the United States District Court for the District of Massachusetts District Court granted summary judgment to a group of defendant banks after applying a "precondition" test established by the First Circuit regarding overtime pay to employees for their participation in required training programs. The case, Miller et al v. Citizens' Financial Group et al., stemmed from the plaintiff employees' claims that the banks had failed to pay them overtime compensation for time spent outside of regular working hours to study for mandatory licensing exams, and that this failure constituted a violation of both the Fair Labor Standards Act and Massachusetts and Pennsylvania state law. The District Court analyzed the summary judgment motion under controlling First Circuit precedent as established in Ballou v. General Electric Co. and Bienkowski v. Northeastern University. In both cases, the plaintiffs claimed that they were not compensated for time spent on mandatory classwork and/or training in connection with their employment and, in both cases, the First Circuit upheld summary judgment rulings against the plaintiffs.
Perhaps you are considering finding employment at a new company or already have a new job offer and remember that the employment agreement you have with your current or recent employer includes a non-compete clause. What is a non-compete agreement? Does this mean you cannot take the new job? Is the non-compete clause enforceable?
In the recent case of Fitzgerald v. The Chateau Restaurant Corp., No. 14-01990-J, 2016 WL 344155 (Mass. Sup. Ct. Jan. 4, 2016), a former manager at The Chateau Burlington and The Chateau Andover restaurants filed a putative class action against parent company The Chateau Restaurant Corporation, Inc. and several related corporations which owned individual Chateau restaurants in the Massachusetts Italian restaurant chain. In his complaint, the Plaintiff alleged that he was routinely denied the opportunity to take his off-site meal break--because of a company policy that if only one manager was on site, that manager could not leave the restaurant--yet he still had his pay automatically deducted to account for such a thirty-minute meal break. Id. at *1-2. Fitzgerald filed a putative class action on behalf of himself and other similarly situated hourly managers at any Chateau restaurant location during the six-year period preceding the commencement of the action, alleging violation of the Massachusetts Wage Act, violation of the Massachusetts Overtime Act, breach of contract and unjust enrichment. Id.
A recent Appeals Court decision should serve as a warning to employers about the importance of clarity in communications with employees concerning policies on overtime pay and timekeeping.
The Supreme Judicial Court has recently affirmed in Monell v. Boston Pads, LLC, 471 Mass. 566 (2015) that real estate brokerage companies can continue to classify real estate salespersons as independent contractors and are not subject to the Massachusetts independent contractor statute.
Even a seemingly objective performance evaluation process may not insulate an employer from claims by an employee that their termination was discriminatory. In a 2013 unpublished decision, Rochat v. L.E.K. Consulting, LLC, 83 Mass. App. Ct. 1108 (2013), the Appeals Court reviewed a Superior Court decision to dismiss gender discrimination claims made by a terminated employee against her former employer. The terminated employee, a second-year consultant with a previously promising career with the firm, earned a negative performance review from the supervisor of a project she worked on toward the end of her second year. That review led, ultimately, to the termination of her employment. Until the last few months of her employment, the employee had generally positive reviews every six months during her tenure with the company and consistently received praise for her work ethic and enthusiastic attitude. She claimed that the decision to terminate her was the product of gender bias.
In August 2014, An Act Relative to Domestic Violence was signed into law and became effective immediately. Section 10 of the Act, codified at G.L. c. 149, §52E, created new protections for an employee who is, or whose covered family member is, a victim of abusive behavior. Abusive behavior includes domestic violence, sexual assault, stalking, and kidnapping. Under the new law, employers with 50 or more employees must provide employees up to 15 days of unpaid leave in any 12-month period if the employee or covered family member of the employee is a victim of abusive behavior.
In November 2014, Massachusetts voters approved a ballot question that requires all private sector employers to provide employees with up to 40 hours of sick leave per calendar year. Under the new law, which goes into effect July 1, 2015, employers of 11 or more employees must provide paid sick leave for employees. Employers having less than 11 employees must provide unpaid sick leave for employees. This law applies to full-time, part-time and temporary employees performing work for compensation.
The First Circuit Court of Appeals issued a decision last week allowing a retaliation lawsuit to proceed because the company's CEO told others that he wanted to "get rid of" an employee, even though there was no evidence that the CEO made those statements directly to the supervisor who terminated the employee, or that the CEO was in any way involved in the termination decision.
The Supreme Judicial Court recently held that a Massachusetts company could be sued by non- Massachusetts residents for conduct that occurred outside of Massachusetts. In Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191 (2013), employees of a Massachusetts company who worked and lived in New York sued their employer under several Massachusetts statutes (specifically, those that govern the classification of workers as employees or independent contractors and the payment of wages and overtime compensation), claiming - among other things - that their employer had improperly classified them as independent contractors. Notwithstanding the fact that their written contracts with the employer contained "choice-of-law" provisions specifying Massachusetts state court as the jurisdiction where suit could be brought, the employer moved to dismiss the plaintiffs' claims, claiming lack of subject matter jurisdiction.
A recent Superior Court decision warns employers of the pitfalls that result from using non-compete agreements that contain consistent terms. In ARS Services, Inc. v. Morse, 2013 WL 2152181 (Super.Ct. 2013), Judge Edward P. Leibensperger considered whether to issue a preliminary injunction to a company that sought to enforce a non-compete agreement against a former employee who began competing directly against it in its existing market.
Most employers know that they have a duty to make a reasonable accommodation for an employee's disability or job restriction, but what that actually means in practice can be confusing. Statutes that require such accommodation are the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and, in Massachusetts, the Massachusetts Fair Employment Practices Law, General Laws Ch. 151B. To fall under the protection of either statute, the employee must have a physical or mental disability (or handicap) that substantially limits one or more of his or her major life activities. The statutory definitions of major life activity are quite broad and can range from bodily functions to cognitive activities.