Job Loss Survival in Massachusetts
Massachusetts Employment Law
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Losing a job, or even making the decision to leave a job on your own, is almost never easy. You may have legal questions, practical questions, and no clear idea where to turn for answers. Below is a quick reference to some of the questions and concerns we hear most often from people facing the loss of a job.
Unemployment Benefits if You Are Fired From a JobOne of the first questions you may have is "can I collect unemployment?" If it was your employer's decision to let you go, in most cases you can collect unemployment benefits. It is only if you were terminated for serious misconduct that you will be disqualified from benefits. Serious misconduct includes violation of a clear and uniformly enforced policy of your employer. It also includes willful misconduct against the employer's interests. If the reason for your termination is simply that your employer was not satisfied with your performance, or that you failed to meet expectations, you should still be able to collect.
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Health Insurance and COBRA Benefits If You Are Fired from a Job or Laid Off
Another key concern of people facing job loss is health insurance. If you were on your employer's health insurance, in most circumstances they are required to offer you the opportunity to continue on that group plan for a period of time. The catch? You can continue on the plan, but your employer is no longer required to contribute toward the premiums.
The obligation to offer continued coverage is based on a federal law known as the Consolidated Omnibus Budget Reconciliation Act (COBRA). When it was passed in the 1980's, health insurance companies were allowed to deny coverage to new customers based on preexisting medical conditions. COBRA therefore provided substantial protection for workers who could not easily transition to a new insurance plan.
Now, under both the federal Affordable Care Act and Massachusetts law, you cannot be denied health insurance because of a preexisting condition. What this means is that in many cases you may be able to find a better deal than continued coverage under COBRA.
Your employer is required to give you a notice of rights under COBRA before terminating your coverage, and you should be given 60 days to make a decision. During that time, you should evaluate all of your options, including the possibility of joining a spouse's coverage or shopping the marketplace for a policy. For some, the loss of income associated with job loss makes them eligible for Mass Health, at least until they are re-employed.
The obligation to offer continued coverage is based on a federal law known as the Consolidated Omnibus Budget Reconciliation Act (COBRA). When it was passed in the 1980's, health insurance companies were allowed to deny coverage to new customers based on preexisting medical conditions. COBRA therefore provided substantial protection for workers who could not easily transition to a new insurance plan.
Now, under both the federal Affordable Care Act and Massachusetts law, you cannot be denied health insurance because of a preexisting condition. What this means is that in many cases you may be able to find a better deal than continued coverage under COBRA.
Your employer is required to give you a notice of rights under COBRA before terminating your coverage, and you should be given 60 days to make a decision. During that time, you should evaluate all of your options, including the possibility of joining a spouse's coverage or shopping the marketplace for a policy. For some, the loss of income associated with job loss makes them eligible for Mass Health, at least until they are re-employed.
Severance Pay and Severance Agreements
One decision you may have to make fairly quickly is whether to accept a severance package offered by your employer. Typically these include an amount of severance pay in exchange for your signature on a release of claims against your employer.
You can read more about how to evaluate your severance agreement. In short, the underlying question is whether you have any legal claims associated with your termination that are potentially worth more than what they are offering you in severance.
You should also know that if you decide to accept a severance payment and sign a release of legal claims, the settlement payment does not count against your unemployment benefits. That means you can apply for unemployment right away, even if you are receiving money in severance.
You can read more about how to evaluate your severance agreement. In short, the underlying question is whether you have any legal claims associated with your termination that are potentially worth more than what they are offering you in severance.
You should also know that if you decide to accept a severance payment and sign a release of legal claims, the settlement payment does not count against your unemployment benefits. That means you can apply for unemployment right away, even if you are receiving money in severance.
Non Competes and References: Your New Job Search
Neither severance payments nor unemployment benefits last forever, so you will soon be thinking about your next step.
One thing you should make sure is that you understand whether you have a non compete or other agreement that could restrict what jobs you accept. There are important limits to your employer's ability to enforce those agreements, especially non compete agreements signed on or after October 1, 2018. However, if you don't have a copy of your agreement or even know if you signed one, it can be difficult to make a plan.
You have a right to ask for a copy of your complete personnel file even after termination, which should include any agreements you signed. There is no special form for this- you can write a letter or an email to your manager or the human resource department and simply ask for a complete copy of your personnel file, including any agreements signed by you.
If it turns out you have a non compete, you may want to have someone review it for you before you start your job search so you can know what limitations you may have.
With respect to references, most companies will provide an "official response" which does no more than verify your employment. This can be a positive if you are worried about people bad mouthing you but it is hardly a glowing endorsement. You should consider reaching out individually to people who know and respect your work and asking them to serve as a reference.
One thing you should make sure is that you understand whether you have a non compete or other agreement that could restrict what jobs you accept. There are important limits to your employer's ability to enforce those agreements, especially non compete agreements signed on or after October 1, 2018. However, if you don't have a copy of your agreement or even know if you signed one, it can be difficult to make a plan.
You have a right to ask for a copy of your complete personnel file even after termination, which should include any agreements you signed. There is no special form for this- you can write a letter or an email to your manager or the human resource department and simply ask for a complete copy of your personnel file, including any agreements signed by you.
If it turns out you have a non compete, you may want to have someone review it for you before you start your job search so you can know what limitations you may have.
With respect to references, most companies will provide an "official response" which does no more than verify your employment. This can be a positive if you are worried about people bad mouthing you but it is hardly a glowing endorsement. You should consider reaching out individually to people who know and respect your work and asking them to serve as a reference.
Wrongful Termination Claim: Time Limits You Need to Know
If you have a severance offer to consider, that offer will contain its own time limits for your decision. If not, or if you have decided not to accept the offer, you do have some time to consider whether you want to bring a claim arising from your termination.
If you suspect that your termination was the result of discrimination, actionable harassment, or retaliation for reporting or complaining about one of those things, you have 300 days to bring a complaint in either the Massachusetts Commission Against Discrimination or the federal EEOC. 300 days is approximately 10 months, but the exact count can vary as different months have different numbers of days.
This means if you are considering a wrongful termination claim, you should start the process of selecting an attorney well before the 300 day cut-off, so that you have tie to choose someone you are comfortable with and they have time to adequately prepare your complaint. Ideally you will have identified and retained an attorney at least three months before the tie limit runs out.
If you suspect that your termination was the result of discrimination, actionable harassment, or retaliation for reporting or complaining about one of those things, you have 300 days to bring a complaint in either the Massachusetts Commission Against Discrimination or the federal EEOC. 300 days is approximately 10 months, but the exact count can vary as different months have different numbers of days.
This means if you are considering a wrongful termination claim, you should start the process of selecting an attorney well before the 300 day cut-off, so that you have tie to choose someone you are comfortable with and they have time to adequately prepare your complaint. Ideally you will have identified and retained an attorney at least three months before the tie limit runs out.
How Our Employment Lawyers Can Help
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We can help you assess your employment situation and get clarity on your rights and obligations. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
