Rules of the Road Table of Contents
Chapter 1 Termination and Discipline
Chapter 2 Employee Illness and Disability
Chapter 3 Wage and Hour Laws
Chapter 4 Employee vs. Independent
Chapter 5 Non-Compete Agreements
Chapter 6 Start-Ups and Closely Held
Corporations: Special Issues
Chapter 7 A Few Words About Unemployment
Chapter 8 Just Because It's Legal Doesn't Mean It Won't Get You Sued
Rules of the Road
What You Need to Know About Employment Laws in Massachusetts
I was on a conference call recently with some colleagues, a group of lawyers from other states and other practice areas who talk once a week about how our practices are going, share ideas, and sometimes commiserate. One says: “I just made a terrible mistake. I had to let go an employee who was a real problem, but I didn’t warn her that if she didn’t do [something] she would be fired. Now she is upset and I think I have opened myself up to a lawsuit.”
Behind this simple statement lie some of the myths, truths, and half-truths about employment law that stymie many businesses and the people who work for them.
Myth: the law requires warnings, or “progressive discipline” before terminating an employee for a minor or moderate transgression.
Truth: in states like Massachusetts that are “employment at-will” states, if you do not have a contract that says otherwise, an employee can be fired for a good reason, a bad reason, or no reason at all, so long as the termination is not discriminatory or done in retaliation for the employee exercising a legally protected right.
Half-Truth: being in an “at-will” state protects an employer from lawsuits for firing an employee. My colleague in all likelihood did not violate any law in his handling of the termination, but was still correct that he may have opened himself up to a lawsuit. Why?
Because (i) discrimination and retaliation are not difficult to claim, though they may be difficult to prove; and (ii) there are many other ways that a business can run afoul of employment laws, and a terminated employee who is angry about the process may well go looking for them.
The purpose of this book is to provide both businesses and their employees with a simple guide to their rights and obligations. I am writing for both audiences because from years of experience on both sides of employment disputes, I can say with conviction that there are employees who are truly wronged by their employer’s actions, and also that there are business owners and managers who are trying to do the right thing by their employees but find themselves in trouble because they don’t know the rules, or don’t have an easy way to ask for help or advice before a situation gets out of control.
In the first two chapters, we cover issues that frequently come up around employment decisions like termination and discipline, and the rules everyone should be aware of concerning exceptions to the “at-will” employment doctrine. In Chapter Three, we cover wage and hour and overtime rules, a frequent source of expensive and distracting lawsuits. In Chapter Four, we address the often-misunderstood issue of when someone can be lawfully classified as an independent contractor rather than an employee. In Chapter 5, we cover the issue of non-compete agreements, another common source of disagreement between employers and former employees. In Chapter Six, we cover some issues and problems that we commonly see in start-ups and closely held corporations. In Chapter Seven, we cover the issue of unemployment benefits and what considerations might affect your decision about whether to contest a departing employee’s eligibility. Finally, in Chapter Eight, we offer some practical advice to employers based upon our years of experience navigating employment relationships gone bad.