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Lawrence
B. Morse & Associates
Attorneys At Law
19 Cherry Street, Danvers, MA 01923
Tel. (978) 777-1176 Fax. (978) 777-3104
Email us at attylm@bizatty.com
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FAQ - Advice for Employees
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- If you think you are getting set up for a firing or demotion,
there may be nothing you can do or there may be plenty.
Improving communication with your manager, improving job performance,
seeking professional counseling and getting help from a Human
Resources Department (sometimes!) may be advisable. Remember
that HR works for the Company, but it also may want to help
a valued employee. On the legal front, you need to know
your legal rights. First you need to determine if you have
any contractual rights and what they may be. High level
employees may have written contracts and union members operate
under collective bargaining agreements. Written agreements may
spell out severance rights and include stock options and other
compensation that may come under the Wages Act. There may be company
handbooks with important policy statements that you should check.
Most other employees are considered under the law as employees–at-will.
This legal term means that, with certain very important
exceptions (i.e. categories of possible discrimination,
many of which are discussed below) you may be dismissed
for any reason or no reason at all. Workers do not have
a right to sue over miserable treatment or difficult
work situations (with some exceptions). Each fact
situation is different and it is important to consult an experienced
employment attorney. An employee who thinks that the company
is violating his contractual rights, the Wage Act regarding payment
of compensation (see below), and/or his rights against employment
discrimination based on age, sex, sexual orientation, sexual harassment,
hostile work environment, race, religion, or ethnic background
should document all interactions with his employer (manager, fellow
employees and all witnesses). Take careful notes of what was said,
by whom, and the date, for any comments that indicated a bad attitude
toward you and unfairness. Perhaps you were treated differently
than others who are of a different age, sex, race, or ethnic background.
Such notes or going back as soon as you can to reconstruct past
events will be very helpful to your lawyer. Sometimes comments
are subtle but show “an attitude.” When certain actions are compared
with certain comments, discrimination can be "inferred" or the
natural conclusion to be drawn.
Once Fired, Take Certain Steps Immediately – Duty to Mitigate,
Keep Records of Emotional Distress, Get Help Consult our office
for more detailed suggestions, but you have a duty to find another
job, so starting the job search and documenting it is essential.
Get books from your library on job hunting. Richard
Nelson Bolles What Color is
Your Parachute? is a classic updated
for the age of the internet. Apply for unemployment
compensation. Rarely will employers contest it and
more rarely will it be denied. While proof of emotional
distress by an expert, a psychologist or psychiatrist, is
not required, it can both help you deal with the stress of job
loss and help prove your emotional distress damages.
Keeping records of the effect of the emotional distress on your
life, particularly of any side effects of depression, loss of
sleep, anger, diminished enjoyment of various aspects of life,
and stress on relationships will help. Go back and
fill in all parts of the events journal that you may or may not
have had time to completely document regarding the acts of discrimination.
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- Age Discrimination
Anyone over age 40 may have a case for age discrimination if
you have been fired or demoted and a younger person has taken
your place. Others may too but age 40 triggers a clear look.
Were there other reasons for the negative job action that are
valid and not pretext for discrimination? Then you may not have
a claim. You should be realistic about whether performance problems
or the other person’s having better qualifications gave the
employer good cause for the negative employment action. The
penalties for age discrimination are severe. They include triple
damages and attorney’s fees. Damages include potential money
awards for back pay, front pay, and emotional distress. These
concepts are discussed below
under an actual case history involving the Town of Wakefield
Electric Light Department.
- Handicap or Disability Discrimination or Retaliation
If you have a physical or mental impairment that still allows
you to meet the basic requirements of your job with or without
accommodation and are otherwise qualified for your job, you
have rights to employment under Massachusetts law. Your employer
cannot discriminate against you because of your impairment or
because you require some “reasonable accommodation” to do the
job. You need to advise your employer of your impairment
and ask for necessary accommodations. The process is supposed
to be a two way street of open communication. The employer has
to consider requests for adjustments in schedules or other accommodations
that your physician, surgeon, or psychiatrist documents as being
necessary for your health, but the wording of such a request
is important. The company cannot fire or demote you because
it learns of your physical or mental impairment. It cannot retaliate
against you for your exercise of your rights, for example if
you consult a lawyer who writes to the employer pointing out
your legal rights. If the company retaliates it will also have
violated the employment discrimination law. Thus, G.L.
c. 151B, § 4 (16), provides that it shall be an unlawful
practice "[f]or any employer . . . to dismiss from employment
or refuse to hire . . . or otherwise discriminate against,
because of his handicap, any person alleging to be a qualified
handicapped person, capable of performing the essential functions
of the position involved with reasonable accommodation, unless
the employer can demonstrate that the accommodation required
to be made to the physical or mental limitations of the person
would impose an undue hardship to the employer's business.”
The definition of handicap is a legally complicated one but
includes the following three separate concepts: “Handicap” is
defined as:
(a) a physical or mental impairment which substantially limits
one or more major life activities of a person; (b) a record
of having such impairment; or (c) being regarded as having such
impairment.
Each case is fact specific and no one should rely on the materials
here to decide whether he or she has a case of discrimination.
- Discrimination Based on Sex, Sexual Orientation, Harassment
and Hostile Work Environment
To feel that you have been demoted or fired or passed over for
promotion based on your sex or sexual orientation is debilitating
and unlawful under G.L. c. 151B. In some types
of cases, you need to show that you were qualified or more qualified
and that the person who was chosen was not in a protected category.
To be passed over for promotion because of your sex, is both
wrong and against the law and can result in significant damage
awards.
Sexual harassment is a particularly insidious form of employment
discrimination violating Massachusetts and Federal law. A hostile
work environment characterized by sexual innuendo, requests
for favors, or inappropriate comments, photos or actions can
cause severe emotional distress to a woman or man. It should
not be tolerated. Such harassment or abuse causes the victim
to feel intimidation, humiliation and isolation whether the
person is heterosexual, homosexual or transgendered.
Sexual harassment may be defined as:
...sexual advances, requests for sexual favors and other
verbal or physical conduct of a sexual nature when (a) submission
to or rejection of such advances, requests or conduct is
made either explicitly or implicitly a term or condition
of employment or as a basis for employment decision; (b)
such advances, requests or conduct have the purpose or effect
of unreasonably interfering with an individual's work performance
by creating an intimidating, hostile, humiliating or sexually
offensive work environment.
It may include “sexual overtures, requests for sexual favors
and/or verbal or physical conduct of an explicit sexual nature,
which thereby creates a hostile, humiliating or offensive work
environment and interferes with one’s ability to work. Sexual
harassment occurs when employment decisions are based on submission
to or the rejection of the sexual overtures.”
Hostile work environment does not always include the classic
elements described above. Our office has pending a case where
a heterosexual male was treated by co-workers as if he were
a homosexual with overtly hostile acts and behavior that was
verbally degrading and included sexually explicit and humiliating
drawings and pictures. Previously degrading verbal acts were
permitted by a manager and they escalated to even more intolerable
conduct. Such harassment is unlawful whether based on requests
for favors, quid pro quo, or simply allowing an intolerable
environment to exist or continue.
- Racial, Ethnic Origin or Religious Discrimination
General Laws c. 151B, Section 4 provides: "It shall be an unlawful
practice: 1. For an employer, by himself or his agent, because
of the race, color, religious creed, national origin, sex, .
. . or ancestry of any individual, to refuse to hire or employ
or to bar or to discharge from employment such individual or
to discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification.”
In one case, the MCAD found for the complainant, when the employer
failed to select her for the two promotional opportunities for
which she had applied. As an African-American, she clearly is
in a protected category. Her evidence established that she was
qualified for the promotional opportunities for which she applied.
She was not selected for either position. Finally, she demonstrated
that the employer filled the positions with persons outside
of her protected category.
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- Generally an attorney will begin by contacting the employer
by mail to obtain your personnel file. After investigating the
facts and the legal basis for your claims, your attorney will
send a demand letter stating the claims at issue and the laws
that have been violated. The first goal is usually to resolve
the situation amicably, obtaining a fair settlement for you, without
going to the Massachusetts
Commission Against Discrimination (“MCAD”) or court.
This is not always possible and your situation may present a “he
said, she said” type problem in which case a more aggressive route
may be appropriate.
If you choose to file a claim against your employer for employment
discrimination, Massachusetts law requires you to first file a
complaint with the MCAD. The MCAD enforces G.L.
c. 151B, among others, and is a separate entity from the courts.
The role of the MCAD is to protect the citizens of the Commonwealth
and ensure that the discrimination laws are being followed by
employers in the Commonwealth.
A claim must be filed with the MCAD within 300 days of the discriminatory
act. See 804 CMR 1.10. The MCAD then conducts its own neutral
investigation and decides whether or not there is probable cause
for a discrimination claim. If probable cause is found, the MCAD
can, after a hearing, award damages which may include back pay,
front pay, emotional distress damages, attorneys’ fees, and 12%
interest from
the date of filing. The MCAD may also order the employer
to conduct training or other affirmative relief. Unfortunately,
this process is lengthy and is currently taking as long as two
years for a decision.
Once 90 days have passed after the filing of a complaint, you
have a right to remove the case from the MCAD to Superior Court.
There it may move faster. There are several factors to consider
in weighing whether to remove. However, pay close attention to
the statute of limitations. If you choose to remove your case
and file in court, you must file within three years of the discriminatory
act. Otherwise your claim will be barred.
A settlement
may occur at any time in this process, often after discovery.
Your attorney will advise you whether or not to accept a settlement
offer based on your specific circumstances. Some factors to consider
when faced with a settlement offer are the reasonableness of the
settlement (is it a fair settlement given the discrimination you
suffered and the responsibility of the employer), the expense
of further legal action (court fees, attorneys’ fees, expert witness
costs, if needed, etc.), the delay in obtaining relief and other
factors.
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- What kinds of justice can a wronged employee hope to obtain
if he or she proves his or her case and is entitled to the
full remedies that the law can provide? A case of age discrimination
against a town Electric Light Department
arose when it failed to advise an employee of the right to work
beyond the age of 65. With proof of the violation before
the MCAD, the following award of damages followed. Back
pay of $65,000 was awarded for the period from when the
employee retired at 65 until he tried to get his job back.
Another award of $210,000.00 in back and front pay damages
was also applied against the Gas and Light Department. Finally
the court ordered $100,000.00 in emotional distress
damages. This award was based solely on the complainant’s
and the family testimony without any experts. More
commonly the MCAD awards emotional distress damages in the $5,000
to $20,000 range depending upon the facts.
Front pay for future lost pay is often difficult to obtain
but is justified where a comparable position would be difficult
to find. The MCAD and the courts have long held that given the
speculative nature of front pay, such an award will be made
only in very limited instances, such as where the discriminatory
act occurs near an individual's retirement date.
For age discrimination cases removed from the MCAD to Superior
Court, the statutory remedies allow for triple damages
and attorney’s fees.
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- The Massachusetts Weekly Wage Act, G.L.
Ch. 149, Section 148, requires, with certain exceptions,
that wages be paid at the latest within a week of when they are
earned. It
also requires, among other things, that an employer pay
in full the wages of any discharged employee on the day of discharge.
According
to the statute, the term 'wages' includes holiday or vacation
payments due on the date of discharge as well as commissions finally
determined and due.
For
violations, you may recover three times the unpaid compensation,
attorneys' fees and costs, and the attorney general
may assess civil penalties. See G.L.
c. 151, Sect. 1B; G.L.
c. 149, Sect. 27C.
Covered
employees, certain types of compensation, stock options and the
definition of covered commission income, are some of the
hot topics today since neither the law nor Massachusetts regulations
give definitions as to what exactly is covered by the law. We
await higher court guidance on these issues.
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Please Note:
The materials in this advisory should not be relied upon
in making decisions about your personal situation. Competent
professional advice concerning your individual situation is
essential. |
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Copyright© 2000 to the present year, Lawrence B. Morse
Please See our Disclaimer Concerning
Reliance on these Materials.
www.BizAtty.com
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