Massachusetts workers who are suffering a short-term disability may be disappointed when they discover that the state has no legislation requiring employers to pay short-term disability.

There are some options, however, that employees in Massachusetts are encouraged to explore.

One of them is the Family and Medical Leave Act (FMLA). Under this federal law, employers are required to provide workers with as much as 12 weeks of unpaid but job-protected leave every year. “Job-protected” means that while the worker is on FMLA leave, the employer is not allowed to hire a permanent replacement for that employee. Workers should understand, however, that employers are allowed to, and usually will, requires a doctor’s not verifying that the worker is suffering from a condition requiring leave. This is standard operating procedure in most companies, and insures that workers are using FMLA leave for legitimate reasons.

Another option is workers’ compensation. Under what is sometimes called “workers’ comp,” employees may not only receive payment for a disability, but medical expenses as well.

A third is the Pregnancy Disability Act. As a hypothetical example, assume that Company A employee Julie is pregnant. Company A offers paid leave to workers with other disabilities.” In the interest of fairness, then, the company is required to offer the identical benefits to women who are pregnant and who are suffering from a medical condition.

Workers are strongly urged to actively explore the options available to them. It is important that they educate themselves about the benefits offered by the company for which they work. Employees with questions would be well advised to contact their company’s human resources department. The “HR” department will provide information.

While Massachusetts has no legislation requiring short-term disability benefits, it is not alone in this regard. Only five states in the U.S. have passed laws requiring benefits. They are Rhode Island, California, New Jersey, Hawaii, and New York. Of these, only Rhode Island requires that the disability coverage be paid through payroll deductions. In the other four states, employers must pay costs. In Rhode Island, workers may receive benefits for as many as 30 weeks.

Massachusetts employees are concerned about the safety of ATVs.

This is a valid concern. As fun as ATVs (All Terrain Vehicles) appear, they can be the cause of injury and fatalities. In Arizona over Labor Day, a recreational accident with an ATV resulted in a tragic death.

ATVs are being used more and more as workplace equipment. Landscapers, construction companies and other businesses that perform outdoor work have found that ATVs work very well for them. Unfortunately, as the use in industry increases, so do the accidents.

According to a recent Consumer Product Safety Commission report, injuries while using ATVs have hit an all time high at over 136,000. Fatalities, too, have soared, going from only 29 in 1982 to 470 in 2004.

By following a set of safety precautions, however, the injuries and deaths from ATV accidents can be prevented by Massachusetts employees.

The first mistake people make is assuming that ATVs with their four puffy tires will drive just like the family car. No. The family car balances on four points (all four tires). The ATV, however, balances on three points, because the rear axle pivots for greater maneuverability. Balancing on three points makes the ATV less stable on hills and uneven surfaces, which is unfortunately the type of terrain where ATVs are most used.

To help minimize ATV accidents, employees must be trained in the correct way to drive these vehicles. All workers must wear safety gear, such as helmets and seatbelts. Employees should never stand up, either, because standing in an ATV shifts the weight which can then cause the vehicle to overturn, possibly resulting in serious head injuries.

Employers, too, must understand that modifying an ATV in any other way than the manufacture suggests, can be dangerous. The ATV is designed for one driver and contains limited cargo space. Adding extra people adds weight and destabilizes the ATV. Increasing the cargo space or adding equipment also adds weight and causes destabilization.

According to the Occupational Safety and Health Administration (OSHA) many of the ATV fatalities are due to modifications that were made beyond the manufacturer’s specifications.

Many employers in Massachusetts and elsewhere nationwide are often surprised to discover that some salaried employees are entitled to overtime pay.

It is also important for employers to understand that not every salaried employee who carries the title of “manager” or executive is automatically outside the protection of overtime pay.

Federal law is specific about dividing salaried employees into two categories, those who are protected by overtime laws and those who are not.

Misunderstandings may arise because of nomenclature. One category is the “salaried exempt” employee. This is the employee who is “exempt” from the overtime law, and consequently not entitled to overtime. The other category is the “non-exempt” employee. As “non-exempt,” they are protected by the overtime law. They are entitled to overtime pay when working more than 40 hours a week.

Remembering that “exempt” employees are those not entitled to overtime, the next question is which employees are exempt?

First and most important, any employee making more than $455 weekly is exempt. He or she is not entitled to overtime. Any employee, regardless of responsibilities, duties, or job title, who makes less than that is non-exempt and must be paid overtime.

After pay, job description, duties, and responsibilities are the next set of significant criteria.

Provided the salary criterion is met, executives and administrators are exempt. Simply having the title is not enough. To meet the standards, the employee must be directing the work of at least two other workers. Administrators must also have important decision-making functions. For example, the purchasing agent who determines which vendors to use would be an exempt employee. The employee who calls in the orders to those vendors, on the other hand, would be non-exempt and entitled to overtime.

professionals with advanced degrees, highly-paid computer professionals, outside salespeople, lawyers, emergency room doctors, and the like are also exempt. Creative professionals such as sculptors and artists would be exempt. Exempt computer professionals would be, for example, programmers, system analysts, and software engineers.

The FLSA or Fair Labor Standards Act is the federal law guiding these standards for employees working more than 40 hours a week. Some states have their own overtime laws. 

Massachusetts law does not require employers to provide workers paid sick time. Neither does federal law. In fact, there is no state or federal law regarding sick pay at all.

No state requires employers to pay for accrued sick time either. Ten states mandate that companies pay for accrued vacation time at termination, but not sick time. Not even California, which has the country’s toughest labor laws, requires employers to pay accrued sick time at termination.

The decision to offer, or not, paid sick time as an employee benefit is completely up to the individual employer, unless a union contract is in place. If the union contract stipulates paid sick time for the employees, the employer must comply.

An employer who has previously offered paid sick time can cancel the benefit at any time. Revoking this benefit is completely legal. Most companies provide workers with a few days notice prior to the cancellation date. There is no standard for notification. If a company revoked paid sick time without notifying the employees, the workers could have a basis to lodge a complaint.

Workers often feel they are “owed” sick time and are entitled to it. Companies, however, offer paid time with the knowledge that not every employee will take the all of his or her sick time every year.

When employers cancel paid sick time with little notice, they often do so to save some money. Many employees use paid sick time as additional vacation days. They call in sick when they aren’t ill, just to get a day off or a “mental health” day. Because of this practice, employers will often give short notice of paid sick time cancellation, to prevent paying those workers.

Also because of this practice, many employers have switched from vacation leave and sick leave to Paid Time Off (PTO). PTO allows workers to take time off for any reason. Under PTO, whether or not the employee is sick is no longer relevant.

Not all employers like the fact, but the FMLA (Family and Medical Leave Act of 1993) allows workers to use their unpaid, job-protected leave intermittently, as little as an hour or two at a time.

In Massachusetts as well as elsewhere around the U.S., unscheduled intermittent leave topped the list of concerns among employers, says a U.S. Labor Department report issued in 2007.

While many report that intermittent leave was not the intention of the original act, such leave is legal, provided employees follow their companies’ call-in policies. Failing to report an absence under FMLA can result in firing, under regulations developed in February of 2008.

Under FMLA rules, employees are allowed a maximum of 12 weeks of unpaid, job-protected leave annually, whether in a block or an hour at a time. Employees must be taking the leave to deal with a serious health condition illness or to cope with a pregnancy, among other things. They must also have worked for their current employer for no less than 1,250 hours during the past 12 months in order to qualify for the leave.

As an example, full-time employee Keisha suffers from pregnancy-related vomiting and nausea, also known as morning sickness. The condition is severe enough for her to require time off. That could be partial days. Her company may require a statement from her doctor certifying to her medical condition. Once she has that, however, she may take whatever time off she needs until she reaches 480 hours, or the equivalent of 12 weeks.

Keisha must be careful, however, because the time she takes before childbirth will be deducted from her overall FMLA leave, and she may wish to save a considerable part of her FMLA leave for the post-birth period. If Keisha uses all of her FMLA leave before the baby is born, she will not be entitled to any leave, paid or unpaid, after the birth.

A number of states have family leave laws that confer additional benefits to employees.

When assigning an employee to a light duty position, employers must apply the protocol evenly and fairly. For example, a company can’t provide light duty positions to female workers, but deny them to male workers. Doing so would constitute discrimination and violate Title VII of the Civil Rights Act of 1964.

Understand, however, that employers are not legally bound to provide a light duty position if one isn’t available. There is no Massachusetts law pertaining to light duty, nor is there a federal law on the topic. Several cases have gone to court regarding light duty, so the U. S. Department of Labor established several light duty regulations.

The main point of the regulations is that employers must treat all workers evenly and fairly when assigning light duty work. If situations are similar, then the company must react in the same way. In addition, if a company has provided light duty positions in the same situation in the past, it must continue to do so.

Some companies have enacted policies not to provide light duty work. The reasoning includes a fear that the employees could further injure themselves. In these cases, the courts have ruled that as long as every light duty restriction is treated in the same way, the company is permitted to enforce this policy.

Another factor to consider in light duty work is the position itself. A secretary who sits at a desk all day may more easily adapt the job to a light duty position, than a warehouse worker who lifts heavy packages all day. For the secretary, his or her duties can be streamlined while on light duty restriction. The warehouse worker probably will not be able to perform all of his or her job functions, so he or she must be transferred to a light duty position, if available.

The exception to providing light duty work applies to employees with either temporary or permanent disabilities. The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for disabled workers. Failure to do so constitutes discrimination and is illegal.

Consider a company that is tired of hiring immature workers. As an antidote to the problem, the business decides to set a minimum age of 25 for all future hires. Some employees wonder if this policy would constitute age discrimination.  

If an employer in Massachusetts institutes this minimum age policy, he or she is not violating a Massachusetts or a federal age discrimination law. The federal age discrimination law, ADEA (Age Discrimination in Employment Act of 1967), prohibits job discrimination due to age only for workers aged 40 or over. The ADEA prohibits this age discrimination in hiring, termination, layoffs, harassment, promotion, and any other aspect of employment. 

In fact, there are some cases where age is a “bona fide occupational qualification”. For example, the courts have ruled that police departments may hire only applicants who are 21 or older. In addition, courts have upheld policies that require airline pilots to retire at age 65. 

Court cases have also allowed preferential treatment for older workers. For instance, a business can offer a retirement plan only to workers of a certain age. Usually, these workers are 62 to 65, but sometimes companies offer early retirement buyouts to younger workers, too, say ages 50 to 60. The law states, however, that if the business makes an offer to the younger workers, it must make the same offer to employees over 60, even if those workers already qualify for another pension plan. 

The ADEA, which covers private businesses, unions, government agencies and employment agencies, is not the only federal age discrimination law on the books. The Age Discrimination Act of 1975 prohibits age discrimination in any institution that receives financial assistance from the federal government. This means that hospitals, day care centers, nursing homes, and other social service providers may not exclude persons from programs, activities or benefits solely due to their age. 

Some states have enacted laws at the state level to prohibit age discrimination against younger workers, too. Kansas is one of these states and has laws on the books to protect employees under the age of 40.

It is illegal in Massachusetts, and most of the other states in the U.S., for an employer to delay or refuse to pay an employee on payday. The Wage and Hour Division of the U.S. Department of Labor, which also enforces minimum wage guidelines, allows an employer to decide payday such as weekly, biweekly or monthly but once that policy is set with their employees they must stay with it. Several states require that hourly employees be paid at least twice per month.

The federal law applies to companies that have revenue of more than $500,000 per year or engage in interstate commerce.  Interstate commerce could include selling manufactured goods to another state, dealing with phone calls between states or ordering products from another state.

For example, Benny pays his employees once a week. In addition, even though his company is financially sound, Benny would like to move the payday to biweekly rather than weekly as a cost cutting measure to save time for the clerks.  Thursday comes and he makes the announcement that payday will be next week.  Even if his workers accepted this decision, this action would be illegal because they were entitled to pay that day.  By not receiving their pay and not paying them anything Benny has paid them less than minimum wage which is a violation of the Fair Labor Standards Act of 1938 (FLSA).

The appropriate way to do this is for Barry to pay the workers on time, and notify each one in writing that the payday has been changed.

Currently, the FLSA sets the federal minimum wage at $5.85 per hour.  On July 24, 2008, that rate will go to $6.55 per hour. Workers who believe they are being paid less than minimum wage should contact the U.S. Department of Labor Wage and Hour Division toll free at 866-487-9243. 

In addition to the federal minimum wage law, there are also some states that have their own minimum wage regulations.  Also, some states require an employer, in addition to honoring wages, must also honor benefits that may have been promised to an employee.  For questions regarding these issues the employee should contact their respective state’s Department of Labor, which will investigate the allegations.

Employees in Massachusetts are protected against a broad spectrum of discrimination on the job site. This protection must be maintained by the employer whose responsibility it is to insure that his or her company complies with federal laws and regulation.

Included in the vast array of federal mandates are those which deal with the matter of confidential employee information, especially medical information. Businesses must obtain certain information from employees which could potentially be abused and might result in discriminatory acts. While the government recognizes the need to gather such information, it also has established accountability for the safe and proper use of that same information.

In particular, such confidential information must be stored separate from the usual personnel files.

Federal law has dictated that much of this confidential information be kept under lock and key. However, each business employer is allowed to use discretion in formulating appropriate policies and procedures. Some employers will need to take more elaborate measures than others. But the basic principal is that protection of this information is the employer’s legal obligation. There are some guidelines which would be wise to follow.

Employee access to files, even by those in management, should be kept to a minimum. The more that access is restricted, the less chance there is for abuse.

Under no circumstances should files be kept in an unlocked file cabinet. It is best to keep them in a locked cabinet within a locked office where there is little traffic. No one outside of the company should have access to these files.

It is preferable to establish a policy that prohibits a file being left unattended, even in a locked office, at any time. If the file is not being used for an immediate purpose, it should be returned to the locked cabinet immediately.

Medical information is of particular concern and is addressed by the Americans with Disabilities Act of 1990. Employers with at least 15 employees are governed by this law and must ensure that absolutely no one sees an employee’s medical information unless they have established a legal right to do so. Employers are required by HIPAA to maintain such medical information at the highest level of secrecy.

Concerns about maternity leave and job security have arisen in Massachusetts. In particular, employees have concerns about whether they will still have a job if they are out on maternity leave. Are there any protections for these workers? The answer is somewhat complex.

Under the federal Pregnancy Discrimination Act, employers are strictly prohibited from discriminating against women just because they are pregnant. If other employees are being treated in the same way, such as being laid off or fired, then the law does not prevent employers from treating pregnant women the same as other workers.

Most states provide family leave under the federal Family and Medical Leave Act. Established in 1993, the act can be utilized by employees for any number of reasons. Some of these might be medical reasons, while others might be to tend to a newborn child or newly adopted child.

In New Jersey, Minnesota, California, Wisconsin, Connecticut, Washington, Hawaii, Vermont, Maine, Rhode Island, New Jersey, Oregon, and Minnesota, each state has enacted laws of their own in regards to family leave. The regulations in each of these states varies, so it is not likely that employees will find consistent answers to their questions from state to state.

The Family and Medical Leave Act protects the jobs of those who have to take leave from work. Even if an employee’s old job is not available upon his or her return from leave, that employee is still entitled to receive a job that is nearly identical in terms of benefits, working conditions, and compensation.

Employees who are on maternity leave, or who are pregnant, are not likely to be exempt from any type of layoff if their employer experiences a general layoff that affects other staff members equally.

Massachusetts employers, as well as some employees, have increasing questions about the rights of employees when it comes to dress code requirements. Several cases, for example, have gone to court and shown support for an Islamic woman’s right to wear clothing that protects her modesty.

A car rental agency in Phoenix wound up firing an Islamic woman in 2002 because she refused to take off her headscarf while on the job. The woman was wearing the headscarf during Ramadan, the Muslim holy month. After her termination, she filed a claim with the EEOC, citing religious discrimination. Courts awarded her approximately $287,000. Most of that money was a penalty for the company’s violation of the law.

To explain the federal regulations behind these rulings, it is important to understand where they originated. In 1964, Title VII of the Civil Rights Act was created to protect workers from being discriminated against at work because of their religion. Under this law, employers are strictly forbidden from discriminating against people for any conditions or terms of employment.

In regards to the sincere religious beliefs and practices of some employees, employers are required to make reasonable accommodations to support those beliefs and practices. The only way for an employer to avoid this edict would be if by doing so, it would place an undue hardship on the employer.

For example, an undue hardship might occur if making reasonable accommodations for an employee were to become quite a bit more expensive for the employer. There are different standards of undue hardship, of course. Larger companies can afford to make more expensive adjustments than smaller ones. A $2,000 per year adjustment for a small company might very well be considered an undue hardship, whereas the same amount for a larger company would not be any type of hardship.

Generally, court cases have ruled that making dress code exceptions for employees is normally a reasonable accommodation. This is according to the regulations of the law.

The year 1964 saw the creation of a law that offered protection against discrimination for employees in Massachusetts, as well as in all other states of this country. This is known as Title VII of the Civil Rights Act. Discriminatory acts within the workplace that are based on someone’s national origin, color, race, sex, or religion are illegal under this law. To elaborate further, any policy or practice that an employer puts into motion that limits employment opportunities for a protected group is usually illegal under this act.

When employers try to establish minimum weight or height standards as stipulations for employment, they are limiting opportunities for women, who tend to be shorter than men, as a group. They are also limiting employment opportunities for people of certain ethnic groups or national origins. Such cases have been successfully challenged in court many times.

Employers can usually not get away with such behavior, unless they can show that there is a valid business need for such restrictions. If a person needed to be at least six feet tall in order to reach the controls for a piece of equipment, then it might qualify as a legitimate necessity for that business.

It is much more acceptable for employers to require stamina or strength testing if there is a legitimate need to ascertain a person’s abilities when it comes to hiring people for particular jobs. Such tests are considered fair, because they do not automatically eliminate any class of candidates from contention. Some of the different jobs that might require such testing include paramedics, firefighters, police officers, and security guards.

Hostile work environments are another type of discrimination. It is most commonly used to define situations where a worker is repeatedly subjected to behavior that is offensive or abusive in some way. The behavior may also be sexual in nature. In a recent case, a court ruled that when a worker found racist paraphernalia in the employee break room, it constituted a hostile work environment for that individual.

The Americans with Disabilities Act is a federal Act that applies to employees in all states, including employees in the state of Massachusetts. However, the Act does not apply to all employees. In order for the Act to apply to employees, the employees need to first work for a company that qualifies for coverage.

In order for a company to qualify for coverage, the employer needs to have at least 15 employees that work for him or her for any given calendar year.

Employees may be covered by the Act for both physical and mental disabilities. An example of a covered physical disability is a missing lib or a visual impairment. A mental disability may be depression or an addiction.

When both an employer and an employee are covered by the Act, the employee cannot be discriminated against by the employer for reasons that are based on the employee’s disability. For example, the employer cannot take the disability into consideration during any employment related period, such as a period related to hiring, termination, compensation, promotion, training, or otherwise.

Also, employers may need to make reasonable accommodations for employees with disabilities. For example, if an employee has a mental addiction, the employer may have to work with the employee to develop a treatment schedule for the addiction.

Employers may be able to discriminate against employees for reasons that are related to the disability only if the employee is unable to perform the functions of the job for reasons that are related to the disability.

Also, the ADA only applies to current employees and to job applicants of a covered employee. The Act does not apply to clients or customers of the employee. The Act only protects employees from discrimination for reasons that are based on the disability and not from other factors, such as age or race. CB

Many employees in the state of Massachusetts will qualify for coverage under the Rehabilitation Act. However, the Act only pertains to some employees. In order for employees to be eligible for coverage, the employees need to work for covered employers. However, because the Act is a federal Act, it may apply to employees in Massachusetts in the same way that it applies to employees in all states.

Covered employers must meet certain employment-related criteria, including at least one of the following:

·         The employer needs to be a federal government agency, contractor or office working in any branch of the federal government

·         The employer could also be a local or state government office, contractor, or agency working in any branch of the government as long as the employer receives federal funding

·         Educational institutions may be covered if they receive federal funding

·         Public and private employers may also be covered if they receive federal funding

Employees are covered for physical and mental disabilities. An example of a physical disability could be a missing limb or a visual impairment. An example of a mental disability could be an anxiety issue or depression. However, in order for employees to be covered, they need to have a record of having a particular disability.

When an employee is covered, the employer should not take the disability into consideration when making any employment-related decisions about the employee and his or her employment. Such decisions might include decisions related to hiring, termination, compensation, training, promotion, or otherwise.

Also, covered employers may need to make reasonable accommodations for employees, such as providing an employee that is in a wheelchair with a modified work station so that he or she can reach his or her desk.

Employers with contracts worth at least $10,000 must take affirmative action to hire employees with disabilities. Employers with contracts worth at least $50,000 must have a written affirmative action place in place to hire workers with disabilities. CB

The Disaster Unemployment Assistance program is a federal program that is in place for workers in states across the country that are out of work as a direct result of a disaster. Many types of disasters will qualify for coverage under the Act, including natural disasters such as floods, storms and fires.

When an employee has been in a disaster that caused him or her to lose work, the employee may be able to be covered by the Act for a period of up to 29 months after the disaster. However, in order to the funds to be released to the employee, the disaster needs to be declared a federal disaster by the President of the United States. Once the President has made this declaration, the employees can receive funds from the program.

Employees in all states may qualify to receive funding, including employees in the state of Massachusetts. However, in order for the employee to receive compensation, the employee needs to meet at least one of the following employment-related requirements:

·         The employee should have been employed at the time of the disaster with the expectation that the employment would have continued if it had not been for the disaster.

·         The employee should also have been injured in the disaster or worked for an employer that has lost his or her place of work in the disaster. Employees should not be able to work as a direct result of the disaster.

·         If an employee had a contract for work to begin, but had not yet begun work, the employee may also be eligible to receive funding from the program.

·         Also, the employee cannot already be receiving unemployment insurance assistance from any state across the country, including from the state of Massachusetts, if he or she wishes to receive funds.

·         Individuals may also receive funding if they have become the heads of the household as a direct result of the death of the former head of the household in the disaster. CB

The Jury Systems Improvement Act is a federal Act that applies to employers and employees in all states across the country, including employers and employees that work in the state of Massachusetts. The Act helps to ensure that employers do not discriminate against employees for reasons that are directly related to jury duty service that an employee has to perform.

Employees should notify the employer at once if they receive a jury duty notice so that the employer can make accommodations for the employee. However, the employer must not take the upcoming jury duty service as a reason to discriminate against an employee. Employers also cannot terminate employees for reasons that are directly related to the jury duty service.

If an employer is guilty of discriminating against an employee that serves on a jury, the employer could be fined up to $1,000 per instance, per employee. Also, if the employer terminates an employee for serving on a jury, the employer may have to pay for lost wages and benefits to the employee.

While the employee serves on the jury, the employer should continue to provide normal benefits, such as health care, if the employer provides health care regularly. Also, when the employee completes jury duty service, the employee should be able to return to work to have the same job or an equivalent job to the one that he or she left behind. The employee should also have the same salary and benefits that she or he had prior to serving on the jury.

Employees may be able to postpone jury duty service for their own reasons. For example, if the employee has a planned vacation, the employee may be able to postpone service. However, the postponement must not be because of coercion from the employer or because of attempted coercion. CB

The Family and Medical Leave Act is a federal Act that helps to ensure that employees can take time away from work for covered reasons and not be discriminated against by the employer for doing so. The Act also helps to ensure that if an employee does need to take time away from work for a covered reason, the employee can return to work to have the same job.

Not all employees are covered by the Act. In order for an employee to be covered, the employee needs to have worked for a covered employer for at least 1,250 hours out of the previous year. Also, employers are covered by the Act as long as they have at least 50 employees that work within a 75-mile radius of the employee that wishes to take the FMLA time off

When an employee takes the FMLA time off, the employee should be able to return to work at the end of the period of time off to have the same job or an equivalent job. Also, the employee should have the same salary and benefits that he or she had prior to taking the time off.

Employees may be able to take up to 12 weeks off of work per year in order to tend to one of the following conditions:

·         Their own healthcare issues

·         The health of a spouse

·         The health of a child, as long as the child is under the age of 18

·         The health of a parent, as long as the employee is at least 18 and as long as the parent is a biological parent and not an in-law

·         A newborn child, a newly adopted child, or a child recently taken in through foster care. Both male and female employees can take time off for these conditions. CB

While Massachusetts law does not cover the use of pre-employment polygraph testing, federal law, which applies in the state, outlines the rights of both employers and employees on the subject.

Generally, private companies are limited in their use of polygraphs, both in pre-employment screening and in tests of current employees. Local, state, and federal governments have more latitude, particularly in positions involving national security.

Under some conditions, private businesses are allowed to use pre-employment polygraph testing. It’s allowable if the firm is involved in work connected with national security, Certain security companies such as alarm services, security guard services, or armored car companies, may pre-screen job seekers with the polygraph. So may companies that distribute, dispense, or manufacture drugs.

Current employees face polygraph screening if they are reasonably suspected of a significant offense such as embezzlement or theft. They have a right to refuse or discontinue the test. They also have the right to forbid that the test results be disclosed to unauthorized people.

If a business is allowed by law to administer the test and a prospective employee refuses to take it, the employer in turn has the right to eliminate that person from consideration for the job.

The relevant law is the federal Employee Polygraph Protection Act. A poster of the same name should be displayed in a prominent location in the workplace by all Massachusetts employers. See www.laborlawcenter.com to obtain posters.

State, federal, and local governments may give polygraph tests, according to the Act. Anyone applying for a position in homeland security should expect to be asked to take one. Those applying for positions with law enforcement agencies are also likely to be asked.

The polygraph usually goes under the name “lie detector,” and measures (continuously, visually, permanently and simultaneously) any changes in cardiovascular, electrodermal, and respiratory patterns. The information is used to render an opinion about the truth or falsity of the subject’s answer to a question.

Other devices are also “lie detectors” — deceptographs, voice stress analyzers, psychological stress evaluators - and are covered by the Act as well.

The state of Massachusetts does not have a law that says an employer must give employees any paid holidays. There is also no federal law which requires paid holidays.

Despite this, most companies choose to give five to seven paid holidays. The decision to do this, however, is solely a matter of company policy. Information about the company policy regarding holiday pay can be found in employee handbooks.

Some people wonder if workers are entitled to receive additional payments when they work on holidays. The general answer to this is no. No federal or state laws require employers to pay a higher rate for any work that is performed on weekends, holidays, or at night. Generally speaking, wages that are paid for work on holidays is considered to be “holiday pay.”

Human Resources professionals typically refer to the term “holiday pay” as extra pay that an employee receives when he or she is off work on a holiday. The majority of companies pay each worker for eight hours more than he or she worked during that week. Most of the time, holiday pay is paid at the employee’s regular rate. It is not paid at the overtime rate.

As an example, suppose that Charlie is off work on Labor Day, and it is a paid holiday at his place of employment. Charlie worked for 40 hours that week. Charlie should be paid for 40 hours at his regular rate for the time that actually worked, plus an additional eight hours of “holiday pay” at his regular rate.

Employees, under federal and Massachusetts state law, are entitled to overtime if she or he works for more than 40 hours per week. Holiday pay is for hours that the employee did not work, so it can be paid at the regular rate.

There are some companies that are willing to pay a premium for hours that are worked on holidays. Some union contracts actually require that premium.

Many states have passed laws banning smoking in the workplace, at least indoors. That has meant many smokers must leave the workstation if they want a cigarette. It has created a new job issue.

First, smokers should know that no Massachusetts law or federal law requires a company to give a worker a smoke break.

In reality, no state or federal law obliges employers to give any kinds of breaks to anyone over 18 years old. That applies to lunch breaks or coffee breaks, and is true no matter if the work day is 8 hours or 12.

In reality, numerous firms have their own policies, finding that allowing a worker a half-hour lunch break and two quarter-hour coffee breaks on a typical 8 hour shift results in greater productivity. Beyond that, employers certainly need not offer any added smoking breaks. California and other states mandate lunch and rest breaks, but there is no state in the union that demands an employer provide breaks for smoking.

Some companies have policies, written or unwritten, that allow smoking breaks, but put limits on them. They may urge that the breaks be no more than 5 or 10 minutes long and may urge the workers to limit those breaks to 3 to 5 times daily. As far as employers are concerned, that’s 15 to 50 minutes of unproductive time. Nonsmokers, meanwhile, are not using that time and are being productive. Workers who are taking advantage of smoking breaks would be well advised to stick to their company’s standards.

The Fair Labor Standards Act (FLSA) of 1938 says employers must pay workers for all breaks under 20 minutes long, or on those breaks where the employee is expected to be called back to work. An employee seeking a 5 or 10 minute break to smoke is asking for paid, unproductive time, and companies are within their legal rights to refuse it. An employer could demand that a smoke break be at least 20 minutes long and that employees “punch out” during them. But nonsmoking employees would have to get the same time.

In Massachusetts, the state minimum wage went from $7.50 to $8.00 on January 1, 2008.  This was an increase of 50 cents.

There are significant exceptions to the Massachusetts minimum wage.  Most notably, tipped employees can be paid as little as $2.63 per hour.  This, of course, is only as long as they earn an average of $5.37 per hour in tips during the shift.  Agricultural workers can be paid as little as $1.60 per hour.

State “Blue Laws” in Massachusetts require some retailers to pay a premium for employees who work on Sundays or holidays.  The minimum wage statute in Massachusetts, however, does not require employers to pay any type of premium for holidays, night work, or weekends.

Employers in Massachusetts must compensate their employees for any accrued vacation time upon termination.  They do not, however, have any laws regarding paid sick days or severance pay.

Though most Massachusetts workers are entitled to an overtime rate that is 1.5 times their normal rate of pay, some employees are excluded from the overtime provision.  These include golf caddies, child actors, fishermen, newsboys, residential janitors (who are furnished with living quarters), seamen, switchboard operators for the phone company, and handicapped persons under special license.

Employees of seasonal businesses are also exempt from overtime payments, as long as the business operates for less than 120 days per year.

There are several other industries in which employees are exempt from the state overtime provisions, including those who work in hotels, hospitals, restaurants, nursing homes, amusement parks, and gas stations.  Some employees in non-profit summer camps and non-profit schools or colleges are also exempt from overtime.

Under federal regulations, some of the workers named above might be entitled to overtime.

Employers are required to post updated labor law changes with new labor law posters.  Listings for all labor law changes can be found at http://www.laborlawcenter.com/.

The United States Department of Labor says that in some situations paid leave in Massachusetts may be deducted from an employee’s unpaid leave under FMLA.  This depends upon what state a worker is in, as well as the company policy.

Also according to the U.S. Department of Labor, employers can establish policies stipulating that employees have to use any paid leave that is available to them prior to using FMLA.  Paid leave might include personal days, vacation days, sick time, or short-term disability.

If paid time off is going to be counted against an employee’s 12 weeks of FMLA leave, the employer must make this policy clear to the employee at the beginning of the leave.  This is usually done formally in writing.

The Family and Medical Leave Act, or FMLA, entitles employees with up to 12 weeks of unpaid leave per calendar year.  This type of leave can be used when employees are seriously ill, or recovering from childbirth.  FMLA may also be used for employees to care for immediate family members who are ill, or to care for newborn children, newly adopted children, or new foster children.

After an employee returns from FMLA leave, he or she is entitled to the same job that they left, or a similar equivalent.  If a similar job is given to the employee, it must be a job with similar benefits, working conditions, and pay.

There are no federal laws protecting an employee’s job if he or she is off of work for more than 12 weeks.  Some companies, at their own discretion, may choose to reinstate or rehire an employee who does not return to work after exhausting their 12 weeks of FMLA leave.

California, New Jersey, New York, Hawaii, and Rhode Island are the five states in America offering state-mandated short-term disability leave.  As an example, in California, employees are entitled to take up to one year of disability.  The employee simply has to have a doctor’s certificate stating that the employee has a serious condition that makes him or her unable to work.

Approximately 14 United States increased their minimum wages at the beginning of 2008. The Massachusetts minimum wage increased by 50 cents, from $7.50 to $8.00 per hour.

Some states tend to raise minimum wage as the cost-of-living increases.  The cost of living is reflected in the Consumer Price Index (CPI) for clerical and urban employees.  The CPI might be figured on the regional or federal level.  As of New Year’s Day, Florida, California, Massachusetts, Washington, Colorado, Montana, Delaware, Iowa, Kentucky, New Mexico, Oregon, Vermont, Missouri, and Arizona will all have a higher minimum wage. 

California and Massachusetts both increased the high minimum wage to $8.00 per hour.  This is an increase of $.50 for each state.

The federal minimum wage will rise on July 24, 2008.  The new federal minimum wage will become $6.55 per hour.  Several states, such as Utah and Texas, will be waiting until this date to make their minimum wage increases.  Washington D.C. always has a minimum wage $1.00 higher than the federal rate.  So, in July, the minimum wage in Washington D.C. will be $7.55.

There are also a handful of states that will raise their minimum wage on the first day of July.  Illinois will have a new rate of $7.75 per hour, a $.25 increase from $7.50 per hour.  West Virginia will increase their minimum wage by $.70, making the new rate $7.25.

Not all states will be making changes to their minimum wage laws in 2008.  South Carolina, Tennessee, Mississippi, Alabama, and Louisiana will not be changing their minimum wage in 2008, since they don’t have one.  Kansas hasn’t increased the minimum wage from $2.65 for more than 10 years.  Other states will keep the same minimum wage for 2008.

Most companies within states that do not have a set minimum wage are covered under the federal minimum wage law. 

Massachusetts copyright laws present many questions.  One of the most confusing aspects of copyright laws is the fact that the laws that govern copyright in this country are actually federal laws.  The often-heard term “international copyright laws” is actually used because most other countries recognize United States copyright laws, and in turn theirs are recognized here.

Some people wonder what copyright laws cover.  Essentially, they cover intellectual property.  Intellectual property may include various works of art, such as sculpture, photographs, or paintings.  It may also include software, songs, the written word, and a variety of other types of work.

Copyright law stipulates that the creator of a work owns that work until he or she transfers the copyright to someone else.  This is generally done in writing.

However, simply giving someone a copy of a photograph, poem, or software, does not mean by any stretch of the imagination that that individual now owns the rights to that work.  Test cases, usually involving presidential letters, have reinforced such rulings.

As an example, if O.J. Simpson sent a woman a letter stating, “I did it”, the woman would have the right to auction the letter for any amount she could get.  She would not, however, have the right to publish the letter in her local newspaper.

As another example, if a woman gave her sister a copy of her original recipe for Kahlua Chocolate Pie, her sister would own the piece of paper, and she could do with it whatever she liked.  She would not have the right to publish the recipe in her cookbook.

Copyright law stipulates that all intellectual property is protected from the moment that it is put into a fixed medium.  This might include videotapes, letters, computer hard drives, or paper.  Because of this, it is not absolutely necessary to register a copyright right away.  The only time that a copyright would need to be registered would be if an individual intended to pursue a copyright claim in court.

Employees across the country, including in the state of Massachusetts, are covered by the Uniformed Services Employment and Reemployment Rights Act when they make a commitment to the military. USERRA is in place to prevent employers from discriminating against employees that are going to make a military commitment or that have made a military commitment in the past.

When an employee has made a military commitment, the employee should be able to leave work for the military service and return to work to have the same job or an equivalent job as well as the same salary and benefits that the employee had prior to taking the military leave.

Employees may take time off of work in order to serve in a variety of branches of the military, including the following:

·         U.S. Armed Forces

·         Coast Guard

·         National Guard

·         Reserves

·         Public Health Service

Employees may also take time off of work for the following reasons:

·         Voluntary or involuntary duty

·         Voluntary or involuntary duty for training

·         Active or inactive duty

·         Active or inactive duty for training

·         Full-time guard duty

When an employee takes time off of work to serve in the military, the employee must return to work within a predetermined time period. The employee should also not be dishonorably discharged from service. That time period is as follows:

·         When military service lasts up to 30 days, the employee must return to work on the next business day after returning from service

·         When service lasts between 31 and 180 days, the employee must return to work within 14 days after return home from service

·         For service lasting more than 181 days, the employee must return to work within 90 days after returning home from service

·         Employees may not serve for more than five years, cumulatively CB

Many employees across the country will have the benefits that are offered by the Womens Health and Cancer Rights Act. This federal Act was put into place in 1998 by Congress sin order to ensure that if a woman needs to have a mastectomy, her health care coverage provider will pay for the cost of reconstructive surgery. The Act, however, only applies to health care coverage companies that already offer mastectomies. If a company does not offer a mastectomy, the company will not be obligated to pay for any additional treatments by the WHCRA.

In some situations, an employee may want treatments that are covered by the WHCRA for reasons that are not associated with a mastectomy. While the health care coverage company may provide coverage for these treatments for other reasons, they are only required when they are directly associated with a mastectomy.

Not all employees will have coverage under the WHCRA. Also, the WHCRA does not necessarily apply to employees that have health care coverage through their employer. For example, the WHCRA may extend coverage to group health care plans that are provided through the employer, but it may also extend coverage through a health insurance company or even a health maintenance organization.

As long as an employee has a health care plan that covers the cost of a mastectomy, the plan should also cover the following:

·         Reconstructive surgery that is associated with the mastectomy

·         Additional optional reconstructive surgery that the employee may desire in order to create a symmetrical appearance between the breasts

·         Surgery that involves the implantation of a prosthetic breast, including the cost to purchase the synthetic breast

·         Treatment for conditions that may result from the mastectomy or additional surgeries

·         Treatment for complications that could result

The employee will be required to pay annual fees and deductibles for the treatment even when the treatment is associated with the WHCRA. CB

Employees may not take time off of work in order to take care of the medical needs of pets. However, many employees may take time off of work for a qualifying condition as long as they work for a covered company and as long as the employee has worked for a company for a certain amount of time.

As long as an employee has worked for a covered company for at least 20 weeks out of the preceding year or a total of 1,250 hours, the employee may take up to 12 weeks off of work each year. The employee must also work for a covered company, which includes companies that have at least 50 employees that work within a 75-mile radius of the company.

The employee must be able to have the same job or an equivalent job upon returning to work after the leave. Also, the employee must be able to have the same salary and benefits upon returning to work after the leave.

According to the FMLA, the covered employee may take time away from work for tend to the following conditions:

·         To care for himself or herself in the event that the employee needs to take care of a medical condition or injury

·         Both male and female employees may take time away from work for the birth of a child, to adopt a child or to take a child in through foster care

·         To care for a sick or injured spouse

·         To care for a sick or injured child, as long as the child is under the age of 18

·         To care for a sick or injured parent, as long as the employee is over the age of 18. The parent should also be a biological parent and not an in-law. CB

Employees in all states across the country should have the benefit of being able to review their labor law rights by looking at labor law posters that are displayed in the workplace. These labor law posters should contain both the state and the federal labor laws that apply to a particular place of work.

When an employee reviews his or her rights on a labor law poster, the employee should know that the employer cannot discriminate against him or her for reviewing the posters. Also, these posters should be displayed in an area of the workplace that is visible and accessible to all employees, such as an employee break room or on a public bulletin board.

The labor laws may be divided into two different posters, or both the state and the federal labor laws may be displayed on one poster. Also, it is required that the employer replace these posters as the labor laws change. The employers should also replace the posters if they are damaged or removed from the workplace.

The following labor laws should be posted on the state labor law poster:

·         Discrimination Notice

·         No Smoking Notice

·         Unemployment Insurance

·         Parental Leave Act

·         Massachusetts Maternity Leave Act

·         Sexual Harassment

·         Workers’ Compensation

·         Minimum Wage/Payment of Wages/Child Labor Law

And the following federal laws should be displayed in the workplace:

·         2007, 2008, 2009 Federal Minimum Wage

·         USERRA – Uniformed Services Employment and Reemployment Rights Act

·         OSHA – Job Safety & Health Protection

·         Equal Employment Opportunity is the Law

·         Employee Polygraph Protection Act

·         Family and Medical Leave Act

·         IRS Withholding Notice

·         Anti-Discrimination Notice

·         Payday Notice

Employees should be aware of the minimum wage increase that will occur over the next few years. Employers will need to keep the labor law posters up to date so that the latest information about the minimum wage is displayed on the poster. CB

The Age Discrimination in Employment Act applies to employees in states across the country. However, the Act only applies to those employees that are over the age of 40. The ADEA does not apply to employees that are younger than 40, to customers, or to employees that may be discriminated against for a bona fide reason.

When an employee works for a company that is covered under the Act, the employee may not be discriminated against during any process that involves a decision about personnel in the workplace. For example, the employer could not discriminate against an older employee when making a decision about training or hiring.

In order for an employer to be covered, the employer needs to meet any of the following conditions:

·         Be a government agency in any department, including local, state, and federal government agencies

·         Be an employment agency

·         Be an employer that deals in the business of interstate commerce and that has at least 20 full-time employees. Those 20 employees qualify only if they have worked for the company for at least 20 weeks out of the preceding year.

There are some conditions in which an employer may be able to legally discriminate against an employee for reasons that are associated with the age of the employee. For example, if an employee wishes to hire employees that can only lift at least 50 pounds, then the employer is able to hire employees that can lift 50 pounds, as long as that requirement is in the job description. The employee must be able to lift the weight and if he or she cannot as a result of age, then the employer may still be able to legally discriminate against the employee. However, the employer will have to prove that the discrimination occurred because of the employee’s inability to lift they weight and not as a result of the age of the employee. CB

The state of Massachusetts requires that all marriages that take place there are certified by laws with a marriage license.  Normally proof of age and identification are required to receive a marriage license in Massachusetts.

In order to get a marriage license both parties must be present to pick up the marriage license.  When both parties appear at the clerk’s office they must have some form of state issued ID.  Driver’s licenses are the best option.  If a driver’s license is not available, then a birth certificate and social security number is required to show proof of identify.

Applicants must be at least 18 years old when applying for a marriage license.  If the applicants are under 18, then parental permission and a court order is required.

It is best to pick up the marriage license at least 30 days before the date of the ceremony.  Picking it up later can lead to delays and not enough time to fix any issues that may come up.

A medical certificate must be presented to the clerk before a marriage license is issued.  The medical certificate has to be in writing and certify that both parties are in good health.  The couple can be married without the medical certificate but the license will not be issued until the medical certificate is turned in.

If either party has been married, then proof of divorce must be presented to the clerk.  Make sure the divorce is registered so certified proof can be shown.  If the person is divorced in Massachusetts then it takes 90 days for the divorce to be certified.

Massachusetts allows for traditional marriage and same sex marriages.  As far as the same sex marriages, the couple must check with the local clerk on the requirements.

The cost for the marriage license is $4.00 plus additional fees based on the county where the marriage will take place.  The fee must be paid in cash only.  The license is valid for 60 days from the date it was issued.

Marriages can be solemnized by a minister, rabbi or priest.  The officiant must register in Massachusetts showing they are clergy in good standing.  Ministers have to keep records of all marriages they perform.  Family members can also ask for a non-minister or non-justice of the peace certification for the ceremony.  This must be picked up from the Governor’s office.  This type of license cost $25.00 and must be paid to the Secretary of the Commonwealth.

When the ceremony is completed, the officiant must return the marriage certificate to the same place it was picked up so it can be certified.

Check with the state before picking up a marriage license because the laws change and it is important the couple understand the laws before getting married.