By Adrienne Catherine H. Beauregard-Rheaume, Esq.
I am a small business owner, and I am lucky to have many friends and clients who own their own businesses. I have found that regardless of the backgrounds of these friends and clients, the size of their businesses, or their industries, that a common theme exists: a lack of awareness of potential legal pitfalls that employers can face if they aren’t being proactive.
This is not to fault my friends and clients. Heck, I’ve even guided fellow attorneys as to employment matters. Here is a non-exhaustive list of things that should be on your legal radar if you are an employer:
(⇐ Mouse who watched me while I typed this blog.)
To Incorporate or Not?
Yes. See prior blogs as to why.
The Wage Act
The Wage Act is big on this list because it is the scariest of all for employers. If you deprive an employee of wages whether it be by misclassifying them as exempt (salaried) when they should be non-exempt (hourly), didn’t pay them enough or on time, etc., regardless of your intention, you will automatically be on the hook for triple damages and their attorneys’ fees if they prevail. Plus there is a burden shifting element to this that puts the onus on the employer to prove it properly classified the employee. So, make sure you are complying with the requirements of the wage act, classifying employees properly, and paying them fully and on time.
The ADA/Title VII and G.L. c. 151B
These are the federal and state laws that say it’s not ok to discriminate against an employee for being a member of a protected class, or retaliate against someone who has complained about being discriminated against for being a member of a protected class. These also encompass the requirement that if your employee has a disability and needs accommodation, you have to provide them with a reasonable accommodation. If you are considering disciplining/terminating, changing the job duties, relocating, or demoting an employee who is a member of a protected class, it’s a good idea to reach out to counsel prior to taking any action to make sure you are handling it the right way to decrease your exposure.
Personnel Records Statute
This one doesn’t have a ton of teeth (a fine from the AG’s office), but it is good to be on your radar anyway. Massachusetts requires employers to keep certain records regarding employees. Pro tip, if you are on the receiving end of a personnel records request that cites the statute, you may want to consider engaging legal counsel immediately because litigation could be imminent.
I get a lot of people asking me to review their handbooks, or to create one. You may want to consider whether you even need one, and, if so, what content to include. My advice varies depending on the size of the business and how it is operated.
Paid Leave Laws
Make sure you know what your employees are entitled to legally insofar as PTO and leave goes (FMLA and PFMLA are at play now!).
Non-Disclosure, Confidentiality, and Non-Solicitation Agreements
Non-competes are essentially banned in MA as of 2018 (any that predate the enactment of the 2018 act are still enforceable if they are otherwise legally sound). But, you may want to consider whether it would be prudent to have employees sign Non-Disclosure, Confidentiality, and/or Non-Solicitation Agreements (beware of certain requirements if you are having current employees sign them!)
Finally, keep in mind that the Commonwealth has certain requirements that you post certain laws in a common employee area. If you have employees working remote, make sure you disseminate them to them electronically.
The Law Offices of Beauregard, Burke & Franco is a civil litigation firm specializing in civil rights, business, malpractice, employment, municipal, and personal injury law. Employment law is our jam, having represented employers and employees alike. This blog is not meant as legal advice, nor should you take it as such. Each situation is unique and the discussion here may not apply to you. If you have an employment law issue that you need to have addressed, you should reach out to an experienced attorney like those here at BBF.