Employment Law Bits

Unemployment benefits in Massachusetts explained

The Massachusetts Division of Unemployment Assistance (DUA) works to help get Massachusetts citizens back on their feet when they lose a job. DUA provides unemployment insurance (UI) benefits and transitional services while workers are awaiting re-employment. Listed below is a brief description of the services offered to the temporarily unemployed.

Weekly Benefits
Unemployment Insurance claimants are able to receive a weekly benefit of approximately 50 percent of their average weekly wage, up to the statutory maximum. The current maximum benefit rate is $628 per week. However, those with children may be eligible to receive an additional $25 per child per week up to a total of one half of the weekly benefit amount.

The maximum number of weeks a claimant can collect full benefits is 30 weeks. The maximum benefit credit amount is $18,840. Like many regular paycheck schedules, workers who are eligible for UI benefits receive a weekly payment for the prior week’s benefit.

Additionally, through the Emergency Unemployment Compensation (EUC) Program, Massachusetts claimants may be eligible for extended federal benefits.

Health Insurance Coverage
Massachusetts residents who receive UI benefits and meet certain income eligibility guidelines may also qualify for health insurance coverage under the Medical Security Program (MSP). Participants in the Program can receive assistance with making payments to a COBRA or personal health insurance plan and may even qualify for enrollment in a free health insurance plan.

Job Training
While receiving UI benefits, workers can apply for approved training if they feel training will help to secure new employment. Though DUA will not cover the costs of training, workers may be eligible for up to an additional 18 weeks of UI benefits while attending approved full-time training.
 
Job Search Assistance - One-Stop Career Center Services
For those who are either unemployed or just looking for a better job, the Commonwealth offers helpful guidance. With locations across the state, One-Stop Career Centers provide employment services that allow workers to search for jobs in an environment that is comfortable and resourceful.

As the economy works to fight its way out of this slump, it is good to know exactly how our government is aiding us through our most trying times.

Employment-at-Will - what is it and what does it mean to you?

This post is the first in a 4-part series.

The majority of employees in the United States are employed without a written employment contract, which is also known as being employed-at-will. While most employees know that they can quit at any time, what they do not know is that their employer can also fire them at anytime, without any legal recourse for the employee.

In an at-will employment relationship, either party may terminate the employment without the risk of liability for doing so. Employees can quit without providing a reason and employers can fire an employee for good cause, bad cause, or for no cause at all. Although it is common courtesy for an employee to give two weeks’ notice prior to leaving a job, it is not legally required. The at-will employment doctrine is based on the idea that individuals should have the freedom to choose where they work and be able to work free from restraint.

That is not to say that employees never have any legal remedy for being terminated. There are several protections for employees who are fired because of discrimination or are retaliated against for reporting an employer’s unlawful activity. Additionally, there are several exceptions to the employment-at-will doctrine that can result in liability for the employer. The three main exceptions are: the public-policy exception, the implied-contract exception, and the covenant-of-good-faith exception.

Information on these employee protections and exceptions will be discussed in upcoming blog posts.

Entitlement to employee benefits on termination of at-will employment

Most employees in Massachusetts are employees-at-will—meaning that they can quit or be terminated for any reason, or for no reason at all. This lack of job security may be unsettling to many employees, especially in these difficult economic times. However, in the event that an individual loses their job, they may take some comfort in the fact that certain benefits could be guaranteed to them by their employer’s personnel handbook.

Employee handbooks generally to not contractually guarantee an employee’s job. Yet, the Supreme Judicial Court has held that where the handbook promises that certain benefits will be paid when employment ends, the employer may be obligated to pay those benefits.

The benefits are due to the employee because of the services rendered to the employer. See LeMaitre v. Massachusetts Turnpike Authority, 452 Mass. 753 (2008). Whether the employer’s promise to pay certain benefits is legally enforceable depends on the context of the preparation and distribution of the employment policies. If you have questions about an employer’s legal obligation to pay benefits, you should contact an attorney.

Employer’s failure to adhere to employee handbook’s discipline policy is evidence of improper termination

Companies with employee handbooks: Beware. An employer’s failure to adhere to a handbook policy regarding progressive discipline may be used as evidence of an improper termination. Therefore, it is critical that an employer be familiar with its own employee handbook and ensures that its practices conform to the stated policies.

It is also important that the language in a handbook is flexible enough to allow the employer to alter and adjust such policies as needed. Consequently, employers are urged to invest some effort and carefully draft their employee handbooks to reflect their business needs.

For example, in a recent Massachusetts Superior Court case, Ferry v. Rosewood Construction, a contractual employee sued his employer, claiming a breach of the employment contract, after he was suddenly terminated. The employment contract provided that the employee would maintain his employment as long as he maintained the responsibilities of his job description according to industry standards.

Prior to the employee’s discharge, the employer had adopted a “generic” employee handbook, without consulting with an attorney or an employment specialist. This handbook’s progressive discipline policy provided that for a first offense, a written or verbal warning would be issued; the next offense mandated suspension; and a subsequent offense would mean termination. The company, however, retained the right to discharge, demote or suspend an employee without warning for serious offenses. The employee had never received any type of discipline prior to his termination.

The court recognized that, notwithstanding an employment contract, an employer in Massachusetts does have the right to terminate a contractual employee, in good faith, for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior.

In this case, the court found that the employer had no such reason. The court agreed that the disciplinary policy was not binding on the employer with respect to this particular employee. Nevertheless, it concluded that the employer’s failure to follow the disciplinary protocol outlined in the handbook was evidence that the employee was improperly fired, in breach of the employment contract. Subsequently, the employer was responsible for paying the remainder of the employment contract.

The court’s decision reveals that, although the employee handbook is an integral part of the communication between an employer and the employee, it presents many pitfalls. If you need any assistance with drafting or reviewing your employee handbook, you are urged to contact an attorney or an employment specialist.

Steering clear of retaliation claims: tips for employers

Retaliation is the name given to the act of punishing or terminating a person who has complained of unlawful employment practices, and they are perhaps the most difficult claims for employers to defend. Because of this, retaliation claims are particularly attractive to employees who feel their rights have been violated. Although they are often brought in conjunction with discrimination claims, they often succeed even though the discrimination claim fails. As an employer, it is important to keep abreast of practices that may support an employee’s retaliation claim and take steps to avoid them.

An employee proves retaliation if he can show:

1. That he engaged in legally protected conduct;
2. That he suffered an adverse employment action; and
3. There was a link between the adverse employment action and the legally protected conduct.

It is important to note that the “unlawful employment practice” to which the employee is opposed does not necessarily have to be unlawful in order for a retaliation claim to succeed. Instead, the employee only needs to have a reasonable, good faith belief in the illegality of the conduct. Because of this, it is particularly important to educate your employees on lawful and unlawful employment practices. Consider outlining the legal bases for your practices in your employee handbook.

The link between the adverse employment action and the legally protected conduct can be inferred if the two actions are close in time and there is no independent explanation offered by the employer. In order to avoid this trap, employers should keep records of the reasons for any adverse employment action.

Investigating claims of improper conduct

Occasionally an employee will accuse a coworker or supervisor of improper conduct such as sexual harassment. These situations are difficult to deal with on several levels. To start, an employer must conduct a proper investigation of the allegations before deciding to terminate the accused employee. If the company fails to do this, it may be liable to the employee for damages.

While Massachusetts is an “at-will” state, some employees have employment contracts with their employers. If there is an employment contract, the company should carefully read it prior to conducting the investigation to ensure compliance with the terms of the contract. This will help avoid any breach of contract claims. Even if there is not an express contract, an employer may be bound to follow procedures set forth in an employee manual.

In addition to contract claims, a company may face potential liability for interference with a contractual or advantageous relationship. If a company fails to properly and objectively investigate allegations of misconduct, but goes ahead and terminates the accused employee, this may make the company liable to the discharged employee.

If you are an employee that has been fired due to allegations of misconduct, consult an attorney today to know your rights. If you are an employer investigating an employee’s allegations of harassment, you should consult an attorney to know your obligations and to develop a proper investigation technique.

Making sure your company’s policies are up to speed legally

Employment law is constantly changing. These changes can result from many sources including the legislature, various regulatory agencies and court cases. Accordingly, employers must keep up with these changes. This is especially important in Massachusetts in light of the implementation of certain provisions of the new health care law.

To avoid litigation, a comprehensive employee manual is a great way to start. But it’s only effective, however, if it is regularly updated to reflect the current laws and standards. A company audit is a great way to ensure that you are in full compliance.

Following are some steps in conducting a company audit:

• Put together an audit team including either in-house or outside counsel, a member of the Human Resource team and a fair representation of your company’s mangers and employees.
• Any member of the audit team should be informed about the handling of confidential information.
• Start with your employee manual and carefully review it to make sure that it accurately reflects not only the current state of the law, but also the actual policies and practices occurring within your company.
• Inspect employee bulletin boards to assure that proper disclosure notices are posted.
• Determine if your company’s policies are implemented consistently. If not, make a plan to do so.
• Remember that many lawsuits against employers can be traced to four distinct areas: hiring, employee evaluation, employee discipline or termination and post-employment. A careful review of how your company conducts itself in regard to these areas can help keep everyone on the same page.

The most important areas to target in this auditing session are:

• Occupational Safety and Health Act
• COBRA
• Employee Retirement Income Security Act
• Title VII of the 1964 Civil Rights Act
• Family and Medical Leave Act
• Americans with Disabilities Act
• The new Massachusetts Health Insurance Law

For more information or ideas on conducting an employment law audit, contact an employment law professional.

How to avoid retaliation claims and what to do if you are involved in one

If an employee complains about the actions of his supervisor or the company he works for, and is soon after terminated or demoted, he may have a claim against the employer for retaliation. Retaliation is a prohibited employment practice whereby employers punish employees for complaining about unlawful practices.

To succeed in a claim against an employer for retaliation, the employee must show several things.

1. The employee must show that he engaged in a protected activity defined nder Massachusetts law, such as informing on an employer's unlawful activity
2. The employee must show that an adverse employment decision was taken against him
3. The emoloyee must show a causal connection between the activity and the adverse employment decision

If the adverse employment decision occurs fairly quickly, that is good evidence of a causal connection. Of course, this showing is not conclusive and must be justified on legitimate grounds. The important thing is that employees should not fear reporting or brining to light unlawful activity.

If you believe you have been retaliated against by your employer, or if you are an employee who wants to terminate an employee, but you fear a subsequent law suit, contact an attorney who specializes in employment law today.

Reemployment rights of military personnel when returning from active duty

If you are a member of the United States Military, or if you employ someone who is, then you must be aware of the Federal rights granted to members of the military. An employer may not refuse to employ or reemploy a person simply because they are a member of the National Guard of a branch of the Reserves. An employer also may not take any adverse action against a current employee for that reason.

If a member of the military is called up to active duty, they are entitled to reemployment rights when they return to civilian life under certain conditions. To be entitled to reemployment, the employee generally must have given advanced notice of their deployment, must not have had a total of five years absence by reason of prior deployments and the employee must have submitted an application for reemployment.

There are various exceptions to these general rules. If you are a member of the armed forces and want to know your rights, or if you are an employer and would like to know your obligations under the law, consult an attorney.

Employment "At Will" - what that really means

In Massachusetts, a basic rule exists that all employment relationships are “at will.” In an “at will” employment relationship, either the employer or the employee may terminate the relationship whenever they choose.

There is no requirement that an employer give notice to the employee that they are being fired. However, there is also no requirement that an employee give notice that they are quitting. A two-week notice is generally considered to be a courtesy but not a legal requirement.

There are exceptions to this general policy. The “at will” doctrine is a default rule for employment practices and gives way to any binding agreements by the parties. Employers and employees are free to dictate the terms of employment through an employment contract.

Courts in Massachusetts have been willing to find that employee handbooks are similar to contracts. It is important, then, to make sure that your employee handbook clearly designates that employment remains “at will. “

Another limitation to the “at will” doctrine includes terminations that violate public policy. This prevents employers from terminating the employment of “at will” employees for any reason, even if there is no contract between the parties.