Massachusetts Sexual Harassment Statute of Limitations

Due to recent allegations of sexual misconduct against several public figures such as Matt Lauer, Kevin Spacey, Roy Moore and Louis C.K., the issue of sexual harassment in the workplace has been thrust into the national news spotlight.  Many of these allegations involve incidents that happened years or even decades ago.  Although these national stories involve high-profile celebrities, sexual harassment is of course prevalent in businesses of all sizes across the country.

While it is encouraged to report instances of sexual harassment whenever possible, there are laws in place that require a victim of harassment to report his or her incident within a certain time frame. For this reason, it is important for employees and employers to understand the relevant statutes of limitations for sexual harassment in the workplace.  A victim of sexual harassment who waits too long to report their claim risks losing their chance at legal recourse and potential monetary damages.

Massachusetts Commission Against Discrimination (MCAD)

In Massachusetts, a claim for sexual harassment must be brought before the Massachusetts Commission Against Discrimination (the MCAD).  The MCAD is the administrative agency that handles claims of discrimination and/or sexual harassment in Massachusetts.  A charge of sexual harassment must be brought with the MCAD within three hundred (300) days of the last instance of harassment.

The 300 day limitations period to bring a claim is strictly enforced.  A party who fails to bring a claim within the 300 day period risks losing any legal recourse he or she may have otherwise had.  It is important to know that for continuing violations of repeated harassment, the 300 day limitations period begins from the last instance of harassment.

Claimants in Massachusetts are required to keep their harassment claim in the MCAD for at least 90 days after the filing of the case.  After 90 days, the complainant may move their case to state or federal court.  If a complainant elects to move their case to state or federal court, then the MCAD no longer has jurisdiction over the claim.

If a complainant elects to keep his or her case in the MCAD, they should keep in mind that this does not change the statute of limitations for bringing a harassment claim in state or federal court.  In other words, keeping a case with the MCAD for longer than three years after the last incident of harassment can cause a claimant to lose their rights to bring a case in front of a jury.  This is one of the many reasons why a party may want to remove their case from the MCAD.  The MCAD can sometimes be backlogged with a heavy caseload and it could take well over a year to decide your case.

Massachusetts Statute of Limitations for Sexual Harassment Claims

The statute of limitations for a claim of sexual harassment in Massachusetts is three years.  This means that a party filing suit in state or federal court must do so within three years of the alleged incident.  However, as stated above all claims must be brought before the MCAD within 300 days of the last instance of harassment.  A party cannot bypass this stage.  A complainant who fails to bring a charge before the MCAD prior to filing suit in state or federal court risks dismissal of his or her claim.

If you are the victim of sexual harassment, or you are an employer or individual defending against a claim of sexual harassment, it is important that you consult with an attorney.  The Murphy Law Group has experience representing employees and employers before the MCAD as well as in state and federal court.  Give us a call at our North Andover office at (978) 686-3200 to schedule an in-person consultation.

Massachusetts Personnel File Laws

Massachusetts General Laws sets forth several requirements for the keeping and maintaining of employee personnel files.  Personnel files are useful from both the employer and employees perspective.

Personnel Files — for Employers

From an employer standpoint, it is important to keep a record of employee activity.  Instances of employee misconduct should always be recorded and placed in the employee’s personnel file.  Maintaining these records can prove to be crucial to an employer who finds themselves defending allegations of wrongful termination.

Personnel Files — for Employees

As an employee, you have the right to know what is being placed in your personnel file.  Additionally, you have the right to a copy of your personnel file after making a written request.  If you believe that you have grounds to bring a claim for discrimination, harassment, or other wrongful termination, obtaining your personnel file can be an important first step in this process.  For example, if an employee claims that poor job performance was the reason for your firing, then positive performance evaluations from your personnel file can be extremely helpful in rebutting those claims.

About Personnel Records

Mass. Gen. Laws chapter 149, section 52C states the appropriate definition of personnel record is as follows:

“Personnel record” — a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record.

A business of twenty or more employees must include the following in an employee personnel file:

• Employee’s name
• Address
• Date of birth
• Job title and description
• Rate of pay and any other compensation paid to the employee
• Starting date of employment
• The job application of the employee
• Resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee
• All employee performance evaluations: (employee evaluation documents, written warnings of substandard performance, lists of probationary periods, waivers signed by the employee, copies of dated termination notices, and any other documents relating to disciplinary action regarding the employee)

Mass. G.L. c. 149, section 52C also requires an employer to notify an employee within ten days of placing any information in his personnel record that is, has been or may be used, to negatively effect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action. If an employee requests to review the updated personnel file, an employer is subject to respond to the request within 5 business days. Similarly, if an employee requests a copy of his personnel record, an employer is subject to deliver the copy within 5 business days. All transactions between the employee and employer you should happen at the place of business during normal work hours.

Personnel File Disagreements

If there is a disagreement with any information contained in a personnel record, the removal or correction of such information may be mutually agreed upon by the employer and employee. If an agreement cannot be reached, the employee may submit a written statement explaining his position which will then be included as part of the employee’s personnel record. The statement shall be included when said information is transmitted to a third party as long as the original information is retained as part of the file.

Penalties

An employer that violates the provisions of Mass. Gen. Laws chapter 149, section 52C regarding personnel records shall be punished by a fine of not less than $500.00 nor more than $2,500.00. However, this fine does not go to the employee.

The Murphy Law Group is experienced in a wide range of employment disputes and has obtained successful results representing both employees and employers. If you would like to speak with an attorney or set up a meeting at our North Andover office, call the Murphy Law Group at (978) 686-3200. With a history of success in employment cases, we can remedy your employment issues so that finding a job can become an enjoyable experience rather than a stressful one.

Employment Law – Frequently Asked Questions

Eight-hour workdays can be especially taxing if you do not work a desk job and are required to stay on your feet all day long. Employees are assured certain breaks from work with an appropriated compensation. Employees should be rewarded for their hard work with suitable break time, travel time, minimum wage, etc. Massachusetts has provisions in place to make sure all employees are treated with the proper care and attention.

The Massachusetts Court System through the Mass.gov website has compiled a list with the most frequently asked questions regarding employment law in Massachusetts:

Does my employer have to give me two 15-minute breaks per day?

Any employee who works for a period more than 6 hours must be given one 30- minute break for lunch. This one half-hour meal break is unpaid. An employer is not required to give any other breaks throughout the day other than a single meal break.

This employment law is specified in Mass. Gen. Laws chapter 149, section 100 which states, “No person shall be required to work for more than six hours during a calendar day without an interval of at least thirty minutes for a meal. Any employer, superintendent, overseer or agent who violates this section shall be punished by a fine of not less than three hundred nor more than six hundred dollars.”

Must I be paid for time that I am “on call”?

According to the Massachusetts regulation 454 CMR 27.04(2), “all on-call time is compensable working time unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes.”

The U.S. Department of Labor’s Fact sheet #22 reports that any employee that is on-call while at a work site or on employer’s premises is compensable. If an employee is on-call at his home or is allowed to leave messages where he can be reached, he is not considered compensable in most cases, with exceptions.

Must I be paid for time I spend traveling to work?

According to the Massachusetts regulation 454 CMR 27.04(4),

(4) Travel Time

• Ordinary travel time to and from work is not compensable working time.
• An employee that works at a fixed site and is traveling to anywhere different than his regular fixed site, will be compensated for all travel time and be reimbursed for associated travel expenses. All traveling is covered if it is outside the employee’s typical commute to and from work.
• If an employer requires an employee to report to a site that is not his typical site and to take transportation, the employee is compensated for all subsequent time after his report time begins and includes any subsequent travel to and from the work site.
• An employee that is directed to travel from one place to another after the beginning of or before the end of the work day will be compensated for all travel time and be reimbursed for all traveling expenses.
• If an employee’s travel requires he be away from home overnight he will be compensated according to Massachusetts regulation 29 C.F.R. 785.39.

How old must a child be to babysit in Massachusetts?

According to the Fair Labor Division under the Office of the Attorney General, minors under the age of 14 cannot work. However there are exceptions, such as babysitting, working as a news carrier, working on farms, or working in entertainment with a permit. Minors from ages 14 to 17 in Massachusetts need a work permit to be able to work. After 8:00 PM all minors under the age of 18 must be under the supervision of an adult or supervisor while working.

Must employees be given time off work to vote?

Employers are required to give an employee two hours leave after the time the polls open in their respective town or city to vote. It is in the discretion of the employer is he compensates the employee’s leave to vote.

This employment law is specified in Mass. Gen. Laws chapter 149, section 178 which states, “no owner, superintendent or overseer in any manufacturing, mechanical or mercantile establishment shall employ or permit to be employed therein any person entitled to vote at an election, during the period of two hours after the opening of the polls in the voting precinct, ward or town in which such person is entitled to vote, if he shall make application for leave of absence during such period.”

Must employees be paid time and a half for Sunday work?

An employer must pay overtime for an employee working on Sunday if the employee works more than 40-hour weeks or if the respective union requires overtime pay for work on Sunday.

Retail stores may not require its employees to work on Sundays and may not punish any employee that refuses to work on Sundays. Non-managerial employees must be paid time and one-half while working on Sundays. Employees may not work seven consecutive days. Violations of this provision are punishable by a fine of up to $1,000.

Mass. Gen. Laws chapter 136, section 6 under articles 1-55, specifies the extent of operation of all businesses on Sunday.

Can tipped employees be paid less than minimum wage?

As of July 1, 2017, employees may be paid less than minimum wage at a rate of $3.75 per hour if they receive more than $20 a month in tips. Any employer who chooses to pay its employees $3.75 per hour must notify the employee first, and the employee must receive at least minimum wage when tips and wages are pooled. If wages and tips do not combine to be validly assessed as minimum wage, the employer is required to pay the difference. Tips must be distributed through a valid tip pool.

This Massachusetts employment law is specified in Mass. Gen. Laws chapter 151, section 7 which states, “In determining wage an employer is required to pay a tipped employee, the amount paid to such employee by the employer shall be an amount equal to: (1) the cash wage paid such employee which for purposes of such determination shall not be less than $3.75; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in clause one ($11/hour).”

Tip distributing is specified in Mass. Gen. Laws chapter 149, section 152A which states, “(c) . . . an employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.”

What is the minimum number of hours for which an employee must be paid on a given work day?

An employee must be paid for at least 3 hours of work if he was scheduled for three hours of work or more. According to the Massachusetts regulation 454 CMR 27.04(1), “when an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.

I’m an employer. What posters do I need and how do I get them?

Posters required to be in a place of business by Federal Law can be found at the Department of Labor site. The DOL’s site has a Posters page with links to all of the required posters. https://www.dol.gov/general/topics/posters/

Posters required to be in a place of business by State Law can be found at Mass.gov. Mass.gov has a Poster Requirements page with links to all of the required posters. http://www.mass.gov/lwd/labor-standards/dls/massachusetts-workplace-poster-requirements.html

Employee-employer relationships work smoothly if both parties follow the regulations laid out for them under state and federal laws. Should you have any questions regarding your employment or Massachusetts employment laws, do not hesitate to contact attorneys at the Murphy Law Group at (978) 686-3200.

Legal Issues for Small Businesses and Startups

Starting a new business can be an exciting yet stressful experience. Whether you are starting a new business, expanding your business, or purchasing an existing company, the Murphy Law Group can help you navigate the tough legal decisions that all entrepreneurs encounter. The Murphy Law Group brings years of experience and provides dedicated services tailored to your company’s business law needs.

The following are just a few examples of legal issues that the Murphy Law Group will help you with:

• Advising as to what type of entity to create. There are major differences between a Corporation, LLC, sole proprietorship and general partnership.  The Murphy Law Group will help you make an informed decision as to what type of entity is the best fit for your business or startup.

• Choosing an appropriate name for your entity, and if necessary a dba that will give your company recognition.

• Creating an Operating Agreement or corporate by-laws that outline the rules, regulations, and structure of your company.

• Drafting an Employee Handbook that will clearly provide the guidelines and day-to-day expectations in the workplace.

• Drafting employee contracts, non-compete and non-solicitation agreements, and protecting your company’s confidential and proprietary information.

• Providing employee and management training on harassment, discrimination and other potentially harmful conduct.

It is important to have the right legal framework in place for your business as early as possible.  The Murphy Law Group serves businesses of all sizes throughout the Merrimack Valley, North Shore, North Andover and Boston areas.  To schedule a meeting to discuss your company’s business law needs, give our office a call at (978) 686-3200 or (617) 570-9000.

Top Causes of Business Disputes

Dan Murphy of the Massachusetts based Murphy Law Group discusses the top causes of business disputes, how business partnerships end, and how an attorney or mediator can end a business dispute amicably rather than in litigation.

John Maher: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today, we’re talking about causes of business disputes. Welcome, Dan.

Dan Murphy: Thanks for having me, John.

Major Causes of Business Disputes

John: Sure. So Dan, what are the causes of most business disputes?

Dan: Simply put, generally, something’s gone wrong in the eyes of one of the parties. That’s very much a general answer, but generally that is the way in which business disputes arise. One party is disappointed in the behavior or the delivery of services, or products by the other party.

John: Okay, and how can business disputes like that be avoided?

Dan: Business to business, it’s important that from the outset expectations are drawn. And expectations need to be laid out, whether they be in a formal contract or certainly in writings between the parties that may ultimately be interpreted as a contract.

It’s important for both parties to establish what their expectations are of the other party, and for each to communicate what their expectations are and to make sure that there’s an understanding on both sides what the expectations are.

Having a Business Dispute Without Going to Court

John: Other than just having a well written contract, is there a way that you can avoid going to a trial?

Dan: Right, I mean business disputes, typically when you’re dealing with two parties that at one point in time felt as though it was to each of their respective advantages to enter into a relationship, or into a contract with the [other] party, that means that there’s something that they have in common that you ought to try to get back to in order to resolve the dispute rather than allow it to continue and to simply do harm both parties.

Most business disputes, where you have responsible businesses who initially decided to engage in business with each other and if they’ve got responsible council as well, can be resolved without going through a lengthy litigation.

John: And what’s the process of doing that?

Dan: It’s difficult to pigeonhole any particular business dispute, because they’re all different, and the response is different. Sometimes you don’t have responsible parties on both sides. Sometimes you have one party that has just said that they’re going to refuse to perform according to the contract, and the party that has been hurt by that has no other way to pursue it than to file suit. That is an extreme situation where litigation will take its course and ultimately a judge or jury will resolve the case.

On the other hand, if both parties think that they are acting reasonably and acting according to what the expectations were that were drawn out initially, whether it be in a written contract or otherwise, then there’s probably a gray area that needs to be worked through between the parties. Oftentimes, counsel can do that and if you need to bring in a third party then mediation is appropriate. Bringing a third party in with fresh eyes who can listen to each side, and each side give their respective views on what occurred, having a mediator weigh in on it, and pushing each side toward resolution is often an effective way of resolving a business dispute.

Business Disputes and Meditation

John: Is a mediator’s role in that case to do what you said, which is to try to get both parties to remember their reasons for having this contract or this agreement to begin with? They had some reason to work together at the beginning of their relationship, and does the mediator just try to get them back to that place where they can come to an agreement again?

Dan: The beauty of mediation is that a mediator can either take that tact or take a tact of saying, “Okay, how do we now efficiently disengage? So the two of you can’t move forward to do what you initially wanted to do because of one factor or another. One party feels aggrieved. How do we recognize that that party has been aggrieved? And if that party has been aggrieved, how can we compensate that party and how can we stop the damage from continuing, and potentially how do we simply disengage and have, if you will, a business divorce?

John: Are there any other ways that a business dispute should be handled, especially if it’s already in progress and you’re just coming into the middle of it?

Dan: Well, I can tell you that I’ve been in front of a number of judges for business disputes, and one of the best judges I ever was in front of was a federal judge who pulled the parties together and said basically that — on the eve of trial, listened to what the respective views of each of the parties were and said, “Shame on both of you because you’re now going to throw this into the hands of me or, if it wasn’t me, to a jury when you had the ability to control the outcome from the time you commenced this litigation until now. Instead, each of you have spent a considerable amount of money to get here. Neither of you are sure of what the outcome will be and one of you will clearly be very disappointed in the outcome, only to have the other very disappointed when the party that loses files an appeal, and we realize that the case still hasn’t come to an end.”

John: Right. It’s just going to drag on for years.

Dan: Drag on for years, take on a life of itself, and is not healthy for either of the businesses.

John: All right. That’s really great information, Dan. Thanks again for speaking with me today.

Dan: Thank you, John.

John: And for information about the Murphy Law Group, visit the firm’s website at www.mlgllc.com, or call 978-686-3200.