Employment Law FAQ in Boston

“At-will” employment is a legal doctrine that applies to most employment relationships in Massachusetts and throughout the United States. It means that an employer can terminate an employee at any time, for any lawful reason, or for no reason at all. Likewise, employees are generally free to leave their job at any time and for any reason. For example, an employer may eliminate your position because it is no longer needed, or you may leave your job because you found a better opportunity.

However, there are important exceptions to this rule. While an employer may terminate an employee for many reasons, they cannot terminate an employee for unlawful reasons, such as discrimination, retaliation, whistleblowing, or for exercising legally protected rights.

Determining whether your termination falls under lawful “at-will” employment or constitutes unlawful conduct can be complicated. If you have questions about your termination you should contact an attorney immediately.

Most employees in Massachusetts are considered at-will employees. If you are not covered by a collective bargaining agreement or a written employment contract that limits when you can be terminated, you are most likely an at-will employee.

Workplace discrimination occurs when an employer treats an employee unfairly because of a characteristic protected by law. These characteristics are often referred to as “protected classes.” Under Massachusetts and federal law, it is unlawful to discriminate against employees based on:

• Race
• Color
• National origin or ancestry
• Sex or gender
• Pregnancy
• Sexual orientation
• Gender identity
• Religion
• Age (40 or older)
• Disability
• Genetic information
• Military or veteran status

Several laws protect employees from workplace discrimination, including:

• Title VII of the Civil Rights Act
• The Age Discrimination in Employment Act (ADEA)
• The Americans with Disabilities Act (ADA)
• Massachusetts General Laws Chapter 151B

It depends on why you are being treated differently. If the reason is related to a protected class—such as race, gender, disability, or religion—you may have a valid discrimination claim. However, if the treatment is based on personality conflicts or other non-protected factors, it may not constitute unlawful discrimination, even if the treatment feels unfair.

Determining the reasons for the treatment you are receiving and whether it is because of discrimination or not can be complicated. As a result, if you have questions about your work environment you should contact an attorney immediately.

Yes. In most cases, discrimination must affect the terms, conditions, or privileges of employment. Examples include:

• Termination
• Demotion
• Reduced pay or hours
• Unequal compensation
• Failure to hire or promote
• Job reassignment
• Harassment that interferes with your ability to work

Yes. Employment discrimination claims in Massachusetts must generally be filed with the Massachusetts Commission Against Discrimination (MCAD) before a lawsuit can be filed. You typically have 300 days from the date of the discriminatory act to file a claim with the MCAD. Claims may also be filed with the Equal Employment Opportunity Commission (EEOC), which enforces federal discrimination laws. If you do not file your claim within the required time limits, you may permanently lose your right to pursue the claim. Because filing deadlines and procedures can be complicated, if you believe you have been discriminated against by your employer you should contact an attorney immediately.

Many employees are familiar with the terms “harassment” and “hostile work environment,” but the legal definitions are often misunderstood. Whether you have a claim depends largely on why the harassment is occurring. If the harassment is based on a protected characteristic—such as race, sex, religion, or disability—you may have a valid legal claim. However, harassment based solely on personality conflicts or general bullying typically does not violate employment discrimination laws. To qualify as a hostile work environment, the harassment must be severe or pervasive enough to create an intimidating, hostile, or abusive work environment.

An isolated incident is usually not enough unless it involves an extremely serious act, such as an assault. Each situation must be evaluated based on its specific facts.

If you are being harassed and believe you are experiencing a hostile work environment you should contact an attorney immediately.

Sexual harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

There are two primary types of sexual harassment claims:

Quid pro quo harassment
This occurs when job benefits—such as promotions or raises—are conditioned on submitting to sexual advances, or when rejecting those advances leads to negative employment actions.

Hostile work environment harassment
This occurs when repeated sexual comments, jokes, or conduct create an intimidating, hostile, or offensive workplace.

Whether harassment rises to the level of a legal claim depends on the severity, frequency, and impact of the behavior.

Yes. If the harassment is committed by a supervisor, the employer may be automatically liable for the supervisor’s actions. If the harassment comes from a co-worker, the employer may only be liable if it knew or should have known about the harassment and failed to take appropriate action to stop it.

Yes. Sexual harassment is considered a form of workplace discrimination. Therefore, the same MCAD and EEOC filing deadlines described above generally apply.. Click here for a discussion of time limits for filing claims of discrimination in the workplace.

Possibly. In some cases, the law treats a resignation as a constructive discharge, meaning the working conditions became so intolerable that a reasonable person would feel compelled to resign.

Examples might include:

• Being forced to perform duties beyond your known physical limitations

• Severe or ongoing harassment

• Significant pay cuts intended to force you to quit

• Unsafe or unlawful working conditions

Constructive discharge claims are fact-specific and difficult to prove, so it is important to speak with an attorney before resigning if possible.

The FMLA protects only “eligible” employees who work for “covered” employers. An employer is covered if it has 50 or more employees within a 75-mile radius.

An employee is eligible if they:

• Worked for the employer for at least 12 months, and

• Worked at least 1,250 hours during the previous 12 months

These requirements mean that employees at small companies, part-time workers, or newly hired employees may not qualify for FMLA protection.

The FMLA provides eligible employees time off from work for:

1. The employee’s own serious health condition
2. Caring for a family member with a serious health condition
3. The birth or adoption of a child
4. A qualifying exigency related to a family member’s military service

Not all illnesses or situations qualify for FMLA leave. An attorney at Swartz Law can help determine whether your circumstances qualify.

Under most circumstances, employees are entitled to up to 12 weeks of leave in a 12-month period. Employees caring for an injured servicemember may be entitled to up to 26 weeks of leave. Leave may be taken all at once or intermittently, such as by the week, day, or even hour.

If you are unable to return to work after exhausting your FMLA leave, your employer may have the right to terminate your employment. However, additional protections may exist under laws such as the Americans with Disabilities Act (ADA) and Massachusetts General Laws Chapter 151B.

The FMLA does not require employers to pay employees during FMLA leave. However, employees may use accrued paid time off, such as vacation or sick leave, during their FMLA leave. Employers may also require employees to use accrued paid leave during that time.

Generally, no. Employees who take protected FMLA leave are entitled to return to their previous position or an equivalent position.

However, this protection is not absolute. For example, employees are not protected from legitimate layoffs, and employers are not required to reinstate employees who cannot perform the essential functions of their job.

No. Employers must maintain group health insurance coverage during FMLA leave under the same conditions as if the employee had continued working.

Employees may file a lawsuit in court for violations of the FMLA. Violations may include interference with an employee’s right to take FMLA leave or retaliation for taking leave or asserting FMLA rights.

Employees may also file a complaint with the U.S. Department of Labor.

Wages include your salary or hourly pay, tips, earned and owed commissions, certain bonuses, and other forms of compensation such as earned vacation time. Under Massachusetts wage laws, wages generally include any compensation that has been earned and is owed to the employee.

Yes. Under Massachusetts law, if you are terminated or fired, your employer must pay you all wages owed on the day of your termination.

No. If you resign from your position, your employer must pay you all wages owed on the next regularly scheduled payday.

Yes. In Massachusetts, unused and accrued vacation time is considered earned wages and must be paid to you when your employment ends.

No. Under Massachusetts law, unused sick time is generally not considered wages and employers are not required to pay it out when employment ends.

Violations of Massachusetts wage and hour laws are subject to mandatory triple damages. This means that if your employer is found liable for unpaid wages, the court must award three times the amount of the unpaid wages, along with reasonable attorneys’ fees and costs.

Under federal law, the Fair Labor Standards Act (FLSA) may also apply. Federal law typically allows for recovery of unpaid wages and, in some cases, additional damages depending on whether the employer’s violation was willful.

Yes. Time limits for filing legal claims are called statutes of limitations. In Massachusetts, claims for unpaid wages generally must be filed within three years of the violation. Unlike some states, Massachusetts employees are not required to file with a government agency before bringing a wage claim in court. However, employees may also file a complaint with the Massachusetts Attorney General’s Fair Labor Division. You should contact an attorney immediately if you believe you have such a claim.

In Massachusetts, a strict three-part test known as the “ABC Test” is used to determine whether a worker can legally be classified as an independent contractor.

To be classified as an independent contractor, all three of the following must be true:

1. You are free from control and direction by the employer in performing your work.
2. The service you perform is outside the usual course of the employer’s business.
3. You are customarily engaged in an independently established trade, occupation, or business.

If all three elements are not met, the worker must generally be classified as an employee under Massachusetts law.

Federal law may apply different tests that consider factors such as the level of control an employer has over the work performed. If you are concerned that you are misclassified you should contact an attorney to evaluate your particular circumstances.

Independent contractors are self-employed and not considered employees. As a result, they are treated differently under employment, labor, and tax laws.

Employers sometimes misclassify workers as independent contractors—either intentionally or unintentionally—to avoid providing benefits, paying payroll taxes such as Social Security and Medicare, contributing to unemployment insurance, or complying with wage and hour laws.

Independent contractors are also responsible for paying self-employment taxes, since an employer is not making those tax contributions on their behalf.

For more information you can read the Boston Attorney General’s Independent Contractor Advisory on our Resources page.

In general, you may be eligible for unemployment benefits if you are fired as long as you were not terminated for deliberate misconduct or a violation of a known company policy. Eligibility for unemployment benefits is determined by the Massachusetts Department of Unemployment Assistance (DUA).

Generally, no. However, there are exceptions if you can show that you had compelling reasons to resign and that you gave your employer a reasonable opportunity to address the issue. For example, if you are being discriminated against, you report the discrimination, and your employer fails to take action to stop it, you may still be eligible for unemployment benefits if you resign as a result. Resigning from your job under these types of circumstances may also affect other potential legal claims. As a result, it is important you speak with an attorney about your situation before resigning.

In many cases, employees who are laid off may still qualify for unemployment benefits. However, eligibility may depend on the terms of your severance agreement. If you are required to sign a Release of Claims in exchange for severance pay, you may still qualify for unemployment benefits. However, if severance payments are considered wages or are paid over time, they may temporarily affect your eligibility. Because severance agreements vary, you should carefully review the terms of your agreement or contact an attorney before signing it.

For more information go to our Resources page for the Boston Division of Unemployment Assistance (DUA) website, the state agency responsible for unemployment benefits determinations.

Most likely not. Most severance agreements include a “Release of Claims” provision. By signing the agreement, you typically give up your right to bring legal claims against your employer. It is important to read your severance agreement carefully to determine whether such a provision exists. If you do not understand any part of the agreement or believe you may have a claim against your employer, it is wise to consult an attorney before signing.

Yes, with certain limitations. A severance agreement is a contract between you and your employer. Your employer may choose to offer the agreement for only a limited time.

However, if the agreement includes a Release of Claims, certain protections may apply. For example, if you are 40 years of age or older, the Older Workers Benefit Protection Act (OWBPA) requires that you be given at least 21 days to review the agreement (and in some cases 45 days). You must also be given seven days after signing the agreement to revoke it.

Many employers do use standardized severance agreements. However, these agreements are still legally binding contracts. Once you sign, you will generally be bound by all of the provisions in the agreement. Claiming later that you did not understand the terms will usually not invalidate the contract. Because employers typically have attorneys draft these agreements to protect their interests, it is important that you ensure your rights are also protected before signing. This is particularly important if the agreement includes a Release of Claims or restrictive covenants, such as non-compete or non-solicitation provisions.

It depends. Under Massachusetts law, non-compete and non-solicitation agreements may be enforceable if they are reasonable and necessary to protect legitimate business interests, such as trade secrets, confidential information, or goodwill.

For a non-compete agreement to be enforceable in Massachusetts, it generally must:

• Be reasonable in scope, geography, and duration
• Protect a legitimate business interest
• Not be harmful to the public interest
• Provide “garden leave” pay or other mutually agreed consideration

Whether a restrictive covenant is enforceable is highly fact-specific. It is important to speak with an attorney who can assist in evaluating your particular agreement.