Nonprofit 411: Recognizing and Avoiding Employment Law Pitfalls

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By Eliza Minsch and Daniel McCabe, Petrucelly, Nadler & Norris, P.C.

A lawsuit by an employee can cost an organization time and money and distract it from serving its mission.  Keeping your organization up-to-date on legal requirements and implementing training for supervisors and staff can help prevent unnecessary and costly employee disputes.

Employee Personnel Files

The Massachusetts Personnel Records statute (M.G.L. ch. 149, § 52C) entitles employees, upon written request, to obtain a copy of their personnel file within 5 business days of their request.

This statute also requires employers to notify employees promptly of any adverse information added to their personnel file.  However, since there is significant ambiguity regarding what is “adverse” and what “information” that includes, employers are encouraged to seek legal counsel regarding this requirement.

Developments in Anti-Discrimination Law

The Massachusetts Fair Employment Act (“Chapter 151B”) makes it illegal for employers with 6 or more employees to discriminate against workers who belong to certain protected categories of people.  That list of categories was recently expanded to include “gender identity,” which includes individuals who identify as transgendered.  The Supreme Judicial Court also recently ruled that Chapter 151B prohibits discrimination against an employee on the basis of the handicap of a person with whom the employee “associates,” such as a spouse or child.

Payment of Wages / Classification of Employees

The Massachusetts Payment of Wages statute (M.G.L. ch. 149, § 148) requires that employers timely pay their employees for all hours worked and overtime, if eligible.  If an employer violates the statute, it may be liable for the worker’s damages, including back pay, triple damages, attorney’s fees, and court costs.

On a related subject, employers sometimes misclassify workers as “independent contractors” and therefore fail to provide those employees with certain benefits such as health care coverage and overtime pay.  Massachusetts law (M.G.L. ch. 149, § 148B) sets forth a strict three-factor test for determining whether a worker has been classified properly.

CORI and Criminal Background Checks

Employers who utilize the Massachusetts Criminal Offender Record Information (“CORI”) system to perform background checks should be aware of the changes resulting from the August, 2010 CORI reform law, including:

  • A “ban-the-box” provision, which prohibits employers, with few exceptions, from asking about an applicant’s conviction record on an initial written application.
  • Prior to accessing an employee’s CORI information, an employer must have the employee sign an acknowledgement form, which the employer must maintain for at least 1 year.
  • Employers that perform 5 or more CORI checks per year must develop a written policy regarding the use of CORI information.
  • CORI information is now available online through the “iCORI” system.

Social Media Policy

When it comes to employees utilizing social media, non-profit organizations must carefully balance maintaining their reputation and employee safety with the rights of individual employees to express themselves. 

In particular, an employer’s policies should not be so broad that they prohibit activities protected by federal labor law, such as the discussion of wages or working conditions among employees.

For a complete Non-Profit Legal Checklist, please visit: http://www.pnnlaw.com/docs/NonProfitChecklist.pdf