Massachusetts Employment Law Update for Out of State Employers 

October 28, 2015

The U.S. Court of Appeals for the First Circuit has ruled that a salesman employed by a Kansas-based company, but who lived and worked from his Massachusetts home, can bring a Massachusetts Wage Act Claim against the employer, and he can do so in Massachusetts Court. The decision, Cossart v. United Excel Corporation, et al., is a reminder that in our far-flung economy, even out-of-state employers must be attentive to the Commonwealth's many employment laws, which we highlight here. 


Earned Sick Leave. As of July 15, 2015, private employers with 11 or more employees must allow every employee to accrue up to 40 hours of paid sick leave each year. Employers with fewer than 11 employees must provide this leave as well, but it may be unpaid. 

  • Employees may use earned sick leave to address their own health needs or those of an immediate family member. Employees may use earned sick leave to: 

care for a physical or mental illness, injury or medical condition;attend routine medical appointments;address the effects of domestic violence; and/or travel to and from an appointment, a pharmacy or other location related to the purpose for which the leave was taken. 

  • All employees, whether working in or outside Massachusetts, are counted for the purpose of determining employer size. 

The Massachusetts Wage Act. Like many states, Massachusetts requires the regular payment of wages to employees. Unlike many states, however, an employer faces severe penalties for violating the Massachusetts Wage Act. What you need to know:

  • Even if unintentional, failing to pay wages brings stiff penalties, including mandatory treble damages and payment of the employee's attorney's fees.

  • Certain agents and officers of a corporation can be held personally liable for violations of the Wage Act. 

  • When terminating an employee, an employer must pay to the affected employee all wages earned as of the termination date, in addition to compensation for any accrued but unused vacation time.

Massachusetts Parental Leave Act. As of January 2015, Massachusetts extends to both women and men the right to take 8 weeks of unpaid parental leave for the birth or adoption of a child, the placement of a child under the age of 18 (i.e. fostering a child), or placement of a disabled child under the age of 23.

  • Eligibility: Employers with six or more employees must provide parental leave to all full-time employees who have completed the employer's initial probationary period or three months of consecutive employment, whichever is less.

Discrimination Based on Sexual Orientation or Gender Identity. In Massachusetts, employers with six or more employees may not discriminate on the basis of an employee or applicant's sexual orientation or gender identity.

Sexual Harassment Policies. Massachusetts requires every employer with six or more employees to have a written policy against sexual harassment and to distribute the policy annually to every employee. The best practice is to adopt a policy prohibiting all unlawful harassment.
 

Criminal Record Information. Massachusetts maintains a public database containing certain limited criminal record information ("CORI") about individuals. Employers may access the database in connection with employees and applicants, and, in certain circumstances, may obtain more thorough information about an individual's criminal record. In every circumstance, however, employers must abide by strict rules limiting the use of CORI in employment. For example,

  • Most employers are prohibited from inquiring about an applicant's criminal record on a written job application, or from requiring an individual applicant or employee to provide his or her own CORI.

  • Employers must obtain an individual's written acknowledgement before seeking non-public CORI. 

  • An employer must provide an employee or applicant a copy of his/her CORI before questioning him/her about it.

  • Before making an adverse employment decision based on CORI, an employer must provide the employee or applicant: (i) a copy of the CORI; (ii) an opportunity to dispute its accuracy; and, (iii) information on how to correct a CORI.

Personnel Records. Like many states, Massachusetts requires employers with 20 or more employees to maintain personnel records. In Massachusetts, however, an employer must notify an employee within 10 days after adding information to the personnel record that has been, or may be used to, "negatively affect the employee's qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action." Employees, in turn, are entitled to submit a counter-statement to any such information, which the employer must permanently include in the personnel record.
 

Independent Contractors. The Massachusetts statute governing independent contractors makes it very difficult for employers to treat workers as independent contractors rather than employees. The Attorney General is charged with enforcing this law, although a violation can give rise to private claims by individuals (including, for example, wage and hour claims).
 

Health Insurance and Plant Closings. Facilities with 50 or more employees must continue to provide health insurance to the affected employees for up to three months after the facility closes, subject to certain exceptions.


Massachusetts Blue Laws. Massachusetts "Blue Laws" restrict certain commercial activities on Sundays and holidays. 

  • There are 55 exemptions that allow businesses to operate legally on Sunday, one of which allows the operation of a retail store or shop on Sundays.

  • Special rules apply to retail employers. For example, retail employers with more than seven employees (including the owner) must offer "premium pay" for hourly workers on Sundays and certain other holidays, at a rate of 1.5 times their regular hourly rate.

  • Regardless of whether an employee is exempt from Sunday Premium Pay, employers covered by the statute cannot require employees to work on Sunday.

  • Retail establishments must comply with Sunday Premium Pay and voluntariness of work requirements on six statutory holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, and Veteran's Day. (If New Year's Day or Independence Day falls on a Sunday, the holiday is observed on the following Monday.)

Getting Hauled into Massachusetts Court. Out of state employers may wonder, Can my Massachusetts employees sue me in Massachusetts? The answer is yes, so long as the Massachusetts court has personal jurisdiction over the out-of-state employer. In the recent Cossart decision, the First Circuit held that by having an employee who lived and worked in Massachusetts, albeit out of his home, the Kansas-based employer was "transacting business" in Massachusetts, and therefore subject to the jurisdiction of the Commonwealth's courts.

For more information or questions, feel free to contact Allyson Kurker and Margaret Paget at Kurker Paget LLC.