-- Christopher from Walpole
-- MBA Vice President Marsha V. Kazarosian speaks on value of the MBA's Lawyer Referral Service.
Employee Rights / Benefits
Employee Rights / Benefits
When is an employee
entitled to medical leave from work?
In Massachusetts, an employee may be entitled to a medical leave of absence under a variety of circumstances. First, if the employer is subject to the federal Family and Medical Leave Act (FMLA), the employee may be entitled to a job-protected, unpaid leave for the employee's "serious health condition," as defined under the FMLA.
An employee may also have a right to job-protected, unpaid medical leave as a form of reasonable accommodation for a disability under Massachusetts' anti-discrimination statute, and the federal Americans With Disabilities Act (ADA).
In addition, the Massachusetts Maternity Leave Act (MMLA), provides female employees, the right to up to eight weeks of job-protected, unpaid leave for the purpose of: giving birth; adopting a child under the age of 18; or adopting a child under the age of 23, if the child is mentally or physically disabled.
An employee with a work-related injury may also have a right to
workers' compensation leave for a reported work-related
What constitutes harassment in the workplace? Is there more than one type? Is it illegal?
Massachusetts' anti-discrimination statute statute prohibits employers with six or more employees from discriminating against employees based on their membership in any of the following protected classes: race, color, religious creed, national origin, sex, sexual orientation, handicap (if qualified for the job), age (age 40 or greater), genetic information, or ancestry. The federal counterparts are Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans With Disabilities Act (ADA).
Harassment is a form of discrimination and, thus, harassment based on any of these protected traits is a form of unlawful discrimination. In order to constitute unlawful harassment, the harassment must be severe or pervasive.
Sexual harassment, in particular, is defined as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when used as a basis for employment decisions or interferes with the individual's work performance by creating an intimidating, hostile or offensive working environment.
Under Massachusetts law, an employer is liable for unlawful harassment by a co-worker if the employer fails to investigate complaints and issue prompt remedial measures once on notice of the alleged harassment. However, under Massachusetts law, an employer is strictly liable for harassment perpetrated by a supervisory or managerial employee.
What kind of benefits
and severance pay am I entitled to if I am laid off or forced to
quit my job?
Massachusetts law does not require an employer to provide severance, separation or other termination payment upon layoff or a change that forces the resignation of the employee. Some employers offer a severance payment based on length of service and other considerations where a termination is without cause. The amount of the payment is usually determined by factors including length of service, the position of the employee within the company and past practice. An employee who is treated differently upon termination may want to explore whether the distinction was due to membership in a protected class, such as age, gender, race, religion or national origin. Payments are usually coupled with a requirement that the employee sign a release of claims against the employer, except for a right to unemployment benefits. If you are unsure of signing the release or want to know more about your rights upon termination, it would be wise to consult with an attorney.
What information can an employer legally share when an employee quits or is fired?
Employees, like every citizen of the Commonwealth Massachusetts, have a right of privacy protected by Massachusetts state law. Employers, however, have a qualified privilege to share certain information about former employees with potential employers, though many employers will proceed with caution and share little information. Courts have found that an employer may in some circumstances have an interest in explaining the departure of the an employee to former co-workers, or interested outsiders. Courts will strike a balance, therefore, between the right of privacy of the individual, and the need of the employer to provide information in the course of its business. Certain issues, such as medical tests, are protected by independent regulations and cannot be disclosed. Consultation with a lawyer is valuable for the employee to determine if the disclosure at issue is proper or not.
How do I apply
for unemployment benefits?
Once you are no longer working, you must file your claim in person or by phone during your first week of partial or total unemployment. The Massachusetts Division of Labor and Workforce Development outlines all of the steps one must take to successfully file a claim.
There are a number of items you must provide by phone, or in person, in order to file a claim. Visit the state's web site for a detailed list.
How long can I
receive unemployment compensation?
The duration of benefits -- the maximum number of weeks you would be able to collect benefits -- is determined by the total amount of your wages paid and the amount of your benefit rate. The maximum number of weeks a claimant can collect full benefits is 30 weeks. Under Massachusetts law, regular benefits are capped at 26 weeks (instead of the maximum of 30 weeks) whenever there is a program of extended benefits. However, many individuals qualify for less than the maximum weeks of coverage. The maximum benefit credit amount is $19,590, which equals $653 a week for 30 weeks. If you are eligible for UI benefits in Massachusetts, you will receive a weekly payment for the prior week's benefit. If you have children, you may be eligible to receive an additional $25 per child per week up to a maximum of 1/2 of your weekly benefit amount. Through the Emergency Unemployment Compensation (EUC) Program, Massachusetts claimants may be eligible for federal extended benefits.
What can I do if I am denied unemployment benefits?
If you are denied unemployment benefits, you will receive a notice that includes instructions on how to file an appeal. The instructions will include specific, strictly enforced deadlines. Be careful to adhere to these deadlines. You may wish to seek advice of an attorney before proceeding with an unemployment appeal.
Can I collect unemployment if I quit my job?
In most cases, employees who voluntarily resign from their employment are not eligible for unemployment benefits. However, there are exceptions. For example, changed employment circumstances may make it impossible for the employee to continue with the company, and resign. An employee may also leave for urgent, compelling circumstances, or an employee may experience illegal workplace harassment that is so severe they must resign. You should seek the opinion of a lawyer to determine if your reason for resignation makes you eligible for unemployment benefits.
I am being harassed
at work by co-workers. What can I do?
Massachusetts and federal laws protect the rights of employees to work free of harassment that is based on the employees' category, such as race, religion, national origin, disability, sexual orientation. If you are harassed in a more general sense or experience a personality conflict, that may not fall under harassment laws. If the harassment you are experiencing is sexual in nature then you may have a right to complain of sexual harassment.
Regardless of the type of harassment, immediately report it to
your supervisor. If the harasser is your supervisor, report the
matter to human resources, or any other appropriate management
official. Management is obligated to conduct a full, impartial
investigation into your claim. If you are not satisfied with
management's response, you should seek the opinion of a lawyer, or
consult with the Massachusetts Commission Against
I was laid off from work and my employer hired a younger person to do my job. Is this age discrimination?
As with many legal questions, the answer is "maybe." A lawyer would need more information to know for sure. If you are 40 years or older, you are considered to be among the protected class of older workers. However, to prove a claim of age discrimination, you must prove that your employer replaced you with a younger worker because your employer either preferred not to employ older workers, or preferred the younger worker with no rational basis. To develop a claim, therefore, you must consider your employment history and the employment history of the younger worker. You may have direct evidence of age discrimination, such as comments from your supervisor, but even if you do not, evidence of discrimination can often be found through indirect other methods. Employment lawyers are trained to provide advice concerning this particular situation.
What do I do if I am
injured on the job?
If you are injured on the job, notify your supervisor immediately. If you are out of work due to your injury for five days, your employer is obligated by law to file a First Notice of Injury with the Department of Industrial Accidents to initiate a workers' compensation claim on your behalf.
Can I be fired because I am hurt and cannot do my job?
It is unlawful to fire, refuse to hire, or otherwise discriminate against a person for making a workers' compensation claim. While a person is out of work due to an industrial accident, unless their union contract or individual contract of hire requires it, an employer does not have to hold the injured worker's job open while the injured worker is unable to work. Massachusetts law does require, however, that employers give preferential treatment in the rehiring of injured workers when they are ready to return to work. Depending on the circumstances involved, an employer's conduct may also run afoul of laws prohibiting handicap discrimination.
What do I do if my worker's comp case is denied?
If your initial claim is denied by the insurer, you may file a claim at the Department of Industrial Accidents. Your case will proceed through the Department of Industrial Accidents, through several stages -- each of which provides additional rights to appeal adverse decisions. If your claim is denied after the "conference" you may appeal it within 14 days of the order denying your claim. A formal "hearing" before the same administrative judge will take place. If your claim is denied again, you may appeal to the Reviewing Board. If the Reviewing Board upholds the denial, you may appeal to the Massachusetts Court of Appeals.
*These answers do not constitute legal advice and are written for general information purposes only. Individuals should consult with a lawyer for specific legal advice.