Articles Posted in Employment Law

Innovative, highly-lucrative and controversy-riddled ride sharing tech company, Uber, has appeared in headlines this year for their predatory and misogynistic business practices that led one female engineer to author a comprehensive blog post about her experience, which ultimately led to the resigning of Uber’s CEO, Travis Kalanick in June of 2017.

“When I joined Uber, the organization I was part of was over 25% women. By the time I was trying to transfer to another [engineering] organization, this number had dropped down to less than 6%,” wrote Susan J. Fowler in February of 2017, following her departure from Uber. “There were two major reasons for this: there was the organizational chaos, and there was also the sexism within the organization.”

Among Fowler’s jaw-dropping account of Uber’s organizational sexism, which is well worth a read, was multiple instances of sexual harassment faced by herself and her female coworkers, which were followed up by ineffective human resources meetings where it was clear that cutting down on sexual harassment was not the goal of the company, but rather performance and appearance were much more important.

Larger implications of this situation

At one point in her ordeal, Fowler was told by a manager that she was on thin ice (meaning she was close to being fired), because she had reported a higher-up to HR. Since California is an at-will employment state, he threatened that she could be fired if she ever did such a thing again.

Fowler had already been previously told by an HR rep that, were she punished for such actions, “it wouldn’t be retaliation if I received a negative review later because I had been ‘given an option’” to leave her group, or Uber entirely.

Even throughout all this, and the investigation launched with the help of then-Attorney General Eric Holder which led to the eventual resigning of Kalanick, Fowler never joined with her fellow female employees to file a class action suit against the company.

Why was this? Simply, because joining Uber as an employee included agreeing to a contractual clause that they would not be allowed to organize for such an action.

The legality of such a clause is now the subject matter of three cases scheduled to appear and present arguments before the United States Supreme Court this October. The potential weight of those rulings could have major consequences for companies that utilize similar contract language to Uber, which attempt to prevent employees from organizing class action suits after being wronged and, instead, insist that the employees hash out agreements to mitigate their concerns in closed-door, one-on-one meetings. Continue reading

The workplace is where Americans spend close to 10,000 hours of their lives, on average. Needless to say, if your place of employment makes you unhappy, you won’t exactly be able to simply endure the negative way it makes you feel, day in and day out.

But how can you be sure if your Massachusetts workplace is simply an unpleasant place to be, or if it has turned into something that is simply not acceptable anymore? How can you tell if work conditions have gone from slightly unbearable, to downright hostile? Use the following information to ascertain whether or not you work in a hostile work environment, and whether or not you have legal recourse to remedy this.

Are you being harassed?

Harassment is a large umbrella that encompasses a wide range of discriminatory behavior. It boils down to this: if you are being singled out or otherwise targeted due to something completely unrelated to your work performance – such as your race, gender, age, sexual orientation or a disability – then you are being unlawfully harassed.

If you are subjected to conditions, work expectations or other behaviors that are not endured by other employees, then you are most likely the victim of harassment. It is not acceptable for a supervisor to force one employee to clean their office, or get them lunch every day, if this is not a task laid out clearly in a job description.

Harassment can take many forms, from threats of firing for not performing tasks unrelated to your job to being mocked openly in front of your coworkers by a supervisor. If the conduct of a coworker, supervisor or anybody else in the workplace makes you uncomfortable, scared or emotionally affected in a way that it negatively impacts your ability to perform your job, then that is textbook harassment, which is illegal.

Is someone else being harassed?

You can righteously make the claim that you are working in a hostile work environment even if you aren’t the subject of any harassment.

The workplace needs to be a safe, accepting space for all of its workers. If there is somebody else who is consistently victimized, in plain view of other employees, then this can create a hostile work environment for others even if they aren’t directly being harassed. Seeing somebody else be harassed can be equally alarming and traumatizing for the person who is actively being treated poorly.

Sexual harassment

Perhaps the most egregious condition that causes a hostile work environment is sexual harassment. If you are ever subjected to uncomfortable, unwanted sexual advances by an employee, supervisor or other person in the workplace, this is unacceptable and highly illegal. Sexual harassment can be physical or verbal in nature, and can also take the form of various threats, which may be carried out if sexual favors are not performed.

What can be done?

Instances of harassment, when possible, should first be discussed with the offending person. Calmly tell them that their behavior is causing you undue harm and stress, and ask them to stop the behavior immediately. Keep a written, dated record of any instances of harassment that occur.

If you are too scared or uncomfortable to bring up your concerns to the offender personally, or if you have told them to stop and the behavior has not stopped, bring the issue forward to your human resources representative. From there, any number of actions may be taken. Likely, a workplace investigation will take place, ideally from an independent, outside investigator with no stake in the company.

If this course of action doesn’t cause the behavior to stop, then you may wish to file a complaint with the Equal Employment Opportunity Commission, which is the federal agency that enforces civil rights laws in the workplace. The EEOC can investigate complaints regarding harassment, as well as instances where an employee was unlawfully retaliated against for formally filing a complaint to stop harassing behavior. Continue reading

Sexual harassment can occur anywhere. And it’s shockingly common, especially in the workplace. In fact, one in three women between the ages of 18 and 34 report being sexually harassed at work. Sexual harassment is a form of discrimination, and a violation of Title VII of the Civil Rights Act of 1964. As such, it is a federally prohibited act. Even so, workplace sexual harassment continues to occur with shocking frequency. Read on for more information about what constitutes sexual harassment in the workplace, and what to do if you are being harassed.

Title VII protects workers from unlawful discrimination, including discrimination based on race, gender, sexual orientation, and religion. Sexual harassment encompasses a diverse array of behaviors, including unwelcome sexual advances, verbal sexual misconduct, physical sexual misconduct, and requests for sexual favors. Title VII applies to employers with at least 15 employees, and includes government entities. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of sexual harassment in the workplace.

Whether or not an action is considered sexual harassment is largely dependent on the particulars of the situation. For example, the telling of sexually-suggestive jokes between co-workers who are friends outside of work and who engage in that type of banter is probably not sexual harassment. However, if a superior tells sexually-suggestive jokes to a new employee and it makes her uncomfortable, this may be considered a form of sexual harassment. This is especially true if he continues to tell the jokes even after discovering that they make the employee uncomfortable.

Quid Pro Quo vs. Hostile Work Environment

Workplace sexual harassment is usually placed in one of two categories: quid pro quo or hostile work environment.  A MA employment law attorney can help you protect your rights if you’ve been the victim of workplace sexual harassment.

  • Quid pro quo: This type of sexual harassment occurs when the harassment is tied to an employment decision, such as a promotion or termination.
  • Hostile work environment: This type of sexual harassment occurs when the harassment of a superior or co-worker makes your work environment offensive, intimidating, or hostile.

In addition to sexually-suggestive jokes, sexual harassment may include threats or bribes soliciting sexual activity, sexual comments or innuendos, unwelcome touching, displays of sexually explicit or graphic images or content, and any type of sexual assault. If you have been sexually harassed, the severity of the incident will have a significant impact on the outcome of the case. In some cases, even a single unwelcome advance may constitute sexual harassment; for example, the request of a sexual favor in exchange for a promotion, or a uniquely severe form of harassment, such as assault. If an isolated incident is less serious, such the telling of a sexually-suggestive joke, it may be difficult to qualify as sexual harassment. When a pattern exists, however, painting a picture of a hostile work environment will be an easier task. Continue reading

Whistleblowing protections are cut and dry. If you see something illegal occurring and you report it to any type of authority – whether it’s to local law enforcement or a federal anti-fraud organization – and you are threatened, reprimanded, fired or punished in any way by your employer as a result, then you have been wronged, and are eligible to file suit against the offending party.

Protections exist for whistleblowers because, were they not in place, those who witness or are aware of criminal behavior would have no incentive to report these actions, and would have no protection from retaliation against them if they chose to do the right thing anyways.

Any individual can blow the whistle on any type of illegal behavior, whether it’s on a massive scale or a micro scale. No matter how big the crime, or the number of victims, the same protections apply.

The United States’ biggest whistleblowing protection agencies are housed within the Internal Revenue Service (IRS), and the Securities Exchange Commission (SEC). The IRS provides protection for those who blow the whistle on crimes involving tax fraud, while the SEC protects whistleblowers who report acts of fraudulent securities practices, such as insider stock trading and malicious stock practices.

Not only is it the right thing to do…

Providing information that leads to a successful investigation and, in most cases, criminals winding up in custody, is not only the right thing to do morally – it can also be incredibly lucrative for the whistleblower.

Since 2007, the IRS Whistleblower Office has helped the IRS collect $3.4 billion in may otherwise have been totally lost revenue due to tax fraud and other illicit tax activity. In turn, the IRS has awarded over $465 million in rewards to whistleblowers who helped them collect this revenue. Similarly, the SEC has awarded over $111 million in whistleblowing rewards since their program began in 2011.

To be rewarded for whistleblowing, you simply have to provide credible, accurate information that aids investigators in rooting out a criminal activity. There are stipulations and conditions for each the IRS and the SEC whistleblowing programs, which you can learn more about HERE and HERE.

Providing protections helps ensure whistleblowers are comfortable reporting illicit actions, but providing monetary awards actually incentivizes whistleblowers to speak up when they have proof of criminal activity. Continue reading

Do you believe that you are being discriminated against at work? Is the discrimination due to your race, or the color of your skin? In 2017, racial discrimination still occurs with shocking frequency. Unfortunately, proving it isn’t always an easy task. The article below provides tips on the different types of racial discrimination and how to substantiate your case. An experienced Boston employment law attorney can help you determine how to proceed if you are being discriminated against at work.

Direct Discrimination

This is the easiest type of discrimination to recognize. When an employer, supervisor or co-worker makes obviously racist remarks with no attempt at hiding their intent, this is direct discrimination. This is the easiest type to prove, but it’s also quite rare. Knowing the consequences, few people will make blatantly racist jokes and comments in the workplace. But it does happen from time to time.

Indirect Discrimination

This type of discrimination is more common. For example, if everyone gets a bonus except Bob, who happens to be black, the employer may claim that it’s because Bob is too new. Is that racial discrimination, or is Bob actually too new for a bonus? The good news is, the answer can usually be discovered with a bit of leg work, including research of employment policies and the company’s past handling of similar situations. A MA employment law attorney can help you uncover the evidence necessary to back up your claim.

Harassment

Consider the following example of racial harassment: Dave is Asian. Dave is constantly scolded in front of his co-workers for not leaving his workspace clean when he heads home for the day. At first Dave thinks his employer must be a perfectionist, and he begins emptying his trash bin twice a day, wiping dust off his computer screen, and washing out his personal coffee mug every evening. But the scoldings continue. When Dave looks around, he realizes that his cubicle is far cleaner than any other cubicle at his place of employment. Is Dave being harassed because of his race? It’s very possible.

What Discriminatory Practices are Prohibited?

If you experience discrimination related to any of the following aspects of employment, you are protected under Title VII of the ADA, GINA, and the ADEA.

  • Hiring process
  • Terminations and layoffs
  • Compensation
  • Job postings
  • Promotions
  • Transfers
  • Testing
  • Training
  • Retirement plans, benefits, and disability

Continue reading

If you were terminated from your job but you are owed commission payments, what are your rights? And what are the employer’s rights? There are specific requirements for receiving your last paycheck following termination, but are commission payments included in that check? Read on for more information about commission payments and the variables that may affect how, or if, they’re paid out following employment termination.

Commission payments usually follow a certain schedule. For example, if you sell 50 widgets to Company A, you will likely provide a time frame within which Company A has to pay for their widgets. Maybe it’s 15 days, maybe 30, maybe 60.  Payment is rarely received when the sale is negotiated. Let’s say Company A has 30 days to pay for their widgets, but they find cheaper widgets somewhere else and cancel their order with you. If you had already received a commission payment on those widgets, this could present a serious problem. For this reason, commissions are rarely paid to employees until full payment has been received.

Factors Affecting Commission Payments

Whether or not you are owed a commission payment after termination is dependent on several factors. These include:

  • Terms within your contract
  • Your level of involvement in generating the sale
  • Circumstances of the sale and your termination

Unless there is an agreement to the contrary, if the commission was earned prior to the date of the termination, the employer will likely be obligated to pay. If, however, the commission was not earned by the date of the termination, but the sales process has been initiated, the policy will be dictated by past practices. It is important to keep in mind, however, that the waters can get a bit muddy if the employee was fired for cause. That doesn’t mean that no commissions can be paid…it just makes things more complicated.

The Contract

If compensation is entirely or partially commission based, there should exist a clear commission schedule between the employee and employer. This payment schedule should include information about when commissions are paid on a closed sale, the impact of renegotiated or canceled sales, and guidelines for handling commission payments following termination. By reviewing this contract, a MA employment law attorney can help you determine if, how much, and when commissions should be paid. If you are still employed and you do not have a contract with clear commission policies, you should request one to avoid serious headaches in the future.

Save Emails

If you have exchanged emails with your supervisor, human resources, or anyone within your company prior to your termination, save these emails. Just as they say “one man’s trash is another man’s treasure,” what seems to you like an insignificant email could be a gold mine. Don’t delete. A Boston employment law attorney can help you determine how to proceed if you’re owed commission payments following a termination. Continue reading

Has Uber not heard about the dangers of fatigued driving? According to the National Highway Traffic Safety Administration (NHTSA), at least 100,000 annual motor vehicle accidents are likely caused by a fatigued driver. Yet, the company behind the driver-for-hire app is vehemently against the 70 hour workweek limit for its drivers. Could it have anything to do with the launch of its new accident insurance policy?

Yes, you read that correctly – Uber wants drivers to be permitted to work more than 16 hours in a single day, and it wants to further profit by insuring those drivers against accidents that are sure to occur as a result. The insurance plan is being tested in eight states; Massachusetts is among them. In exchange for coverage in work-related accidents, drivers will pay a per-mile fee to Uber.

No Workers’ Compensation?

The question isn’t whether or not Uber drivers should protect themselves with insurance; taxi-related jobs have five times the death rate as other occupations. The issue is with Uber’s decision to charge drivers for medical care and lost wages rather than purchase workers’ compensation insurance to cover all drivers. In addition, the benefits that will be provided by Uber’s accident policy will be less robust than those provided by traditional workers’ comp. According to press reports, the plan will cover up to half of the individual’s average weekly earnings, compared to workers’ comp benefits which cover up to 66 percent of lost wages.

Employees in other companies and industries get overtime pay, which acts as a deterrent to employers to overwork their staff. In addition, those workers are generally covered by workers’ comp. It is true that Uber’s drivers are independent contractors, not employees. However, state agencies in Alaska, California and Oregon have audited Uber, collected payroll taxes, and demanded real protections for the company’s drivers. A MA workers’ compensation attorney can help you determine if you are entitled to workers’ comp benefits.

Driver Fatigue

The NHTSA conservatively estimates that fatigue results in about 1,550 deaths, 71,000 injuries, and $12.5 billion in financial losses every year. The statistics below provide further insight into this serious problem.

  • Individuals between the ages of 18 and 29 are most likely to drive while drowsy.
  • Men are more likely to drive while drowsy than their female counterparts.
  • Adults with young children have a greater tendency to drive drowsy.
  • The AAA Foundation for Traffic Safety released a study revealing that individuals who get six to seven hours of sleep per night have double the risk of a fatigue-related crash than those who sleep eight hours or more.
  • A study in Australia revealed that a person who has been awake for 18 hours will have a level of impairment equal to someone with a blood alcohol concentration (BAC) of .05.

Other factors, including obesity, smoking, alcohol consumption and conditions such as sleep apnea weigh heavily when calculating the risk of driver fatigue. However, one thing is certain; driving for more than 16 hours in one day is unsafe. Consider asking your Uber driver how many hours he or she has been working the next time you go for a ride. And if you work for Uber and were injured on the job, a skilled Boston work injury lawyer can help you determine how to proceed. Continue reading

To understand workplace assault we must first understand what assault actually means. Many people incorrectly assume that assault requires physical violence. In fact, even a verbal threat can be assault; it’s the intent that matters. For example, if a supervisor threatens an employee’s life if the employee doesn’t complete a project by Friday, the supervisor may be guilty of assault. However, if the supervisor and employee are buddies, and the “threat” was an obvious joke, it wouldn’t be considered assault.

Generally speaking, assault occurs when a person intentionally harms or threatens to harm another person. Simple assault doesn’t require physical injury, and aggravated assault typically involves a deadly weapon or serious physical injury. Assault crimes usually conjure images of bar fights or domestic disputes, but workplace assaults are actually quite common. Work environments can become tense due to confined spaces and close groupings of people who are required to see each other regularly, sometimes every day. Personality conflicts and power struggles may escalate in this environment, erupting into workplace violence with little to no warning.

Some incidences of workplace assault are serious, even fatal. We’ve all seen mass media coverage of disgruntled workers who “shoot up” the office, killing everyone from the supervisor who disciplined them to the secretary and mail-room clerk who just happened to be in the wrong place at the wrong time. Other cases of workplace assault are much less serious. A Boston personal injury lawyer can help if you’ve been a victim of assault in the workplace.

When is the Employer Liable?

In addition to the supervisor or employee who is accused of assault, the employer can also be liable for the victim’s injuries under certain circumstances, including:

  • If employer negligence contributed to the incident.
  • If the employer intentionally played a role in the assault.
  • If the employer is not covered by workers’ compensation.

The first of the above bullet points addresses how employers respond to hostile work environments. If an employer knows about, or should have known about, threatening behavior and fails to take action, it may be liable if the person responsible for the behavior harms a co-worker. This may even be true if the person in question is a non-employee, such as a vendor or contractor.

When is Only the Employee Liable?

On the other hand, an employee who assaults a co-worker will likely be exclusively liable if:

  • The employer was unaware of the employee’s conduct.
  • The conduct was not related to the accused’s job.
  • The conduct was not encouraged or tolerated by the employer.

Workplace assault can result in criminal penalties, but it can also result in a civil action, such as when the victim brings an injury claim to recover financial damages for medical expenses, pain and suffering, and lost wages. A MA injury lawyer can help you determine how to obtain compensation for medical expenses, pain and suffering, lost wages, and other associated costs if you’ve been harmed in a workplace assault . Continue reading

Embezzlement is a form of theft that is typically characterized by the misappropriation of funds by a person in a position of trust. Anybody who handles money can embezzle funds, from cashiers and bank tellers, to accountants and individuals in charge of large family estates.

According to recent studies, employee embezzlement is a massive – and growing – problem in the United States, accounting for about $400 billion in stolen funds annually. And embezzlement doesn’t discriminate based on company size; small mom-and-pop stores are just as at risk as  giant corporations. A MA defense lawyer can help you determine how to move forward if you’ve been charged with embezzlement.

How Are Investigations Into Employee Embezzlement Conducted?

Basically, they are conducted in much the same way as all other investigations into employee misconduct. Of course, the manner of the investigation will depend largely on the amount of money stolen – a few hundred dollars missing from the corner store isn’t likely to warrant the same investigation as a Fortune 500 company with millions in potentially-embezzled funds.

As with any employment investigation, both employer and employee have rights. In fact, employees have an extensive list of federal and state rights and protections. For example, without strict compliance with federal and state laws, an employer cannot use outside investigators, credit or background checks, monitoring devices, or polygraph tests to investigate an employee or an employee’s suspected misconduct.

If an employer suspects embezzlement, an investigation will likely be conducted to determine the following:

  • Whether a theft actually occurred
  • The total amount of the theft
  • The method used to steal the funds

Once this information is available, the employer will likely terminate the person or persons responsible for the theft, and implement procedures that will prevent a similar theft from occurring again. The next step would be to try and recover the stolen money or property.

Penalties for Embezzlement

In MA, if you get convicted of embezzlement, the penalties will vary depending on the severity of the case and prior criminal history. These penalties may include:

  • Value of money or property worth $250 or less: First offense carries penalties of between six months in jail and two-and-a-half years in prison, and a fine of up to $600.
  • Value of money or property worth more than $250: Fine of up to $25,000 and up to five years in prison.

Were Your Rights Violated?

It’s important to remember that embezzlement is almost never caught by direct observation of the act. Suspicions are usually initiated by the report of another employee, through an audit, or are based on circumstantial evidence. Employers are usually quick to begin an investigation when embezzlement is suspected, lest they lose more money. For this reason, they often make mistakes, violate employee rights, or make incorrect assumptions based on rumors and personal opinions. A MA defense attorney can help you determine your rights and options if you are being investigated for embezzlement in the workplace. Continue reading

Racism is still a problem in this country. In some situations, it’s blatantly obvious; more often, however, racism is subtle and harder to identify. This is especially true of racial discrimination in the workplace. For example, an employer may fail to hire an individual based on his race, but claim the decision was based on another factor, such as attitude or lack of experience. A MA employment attorney can help if you believe you’ve been a victim of racial discrimination.

What is Discriminatory Intent?

Whether racial discrimination in the workplace is obvious or subtle, there are multiple federal and state laws prohibiting this type of discrimination in any form. In many cases, identifying – and proving – racial discrimination can be difficult. But sometimes, an employer inadvertently displays discriminatory intent.

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