Navigating employment laws can be challenging for businesses in Massachusetts. From hiring to termination, understanding this complex legal landscape is crucial to avoid costly mistakes. This article highlights seven key scenarios where consulting employment counsel is essential.
1. Hiring Practices
The hiring process is vital for attracting and retaining top talent. As such, businesses should ensure their hiring practices comply with both federal and state laws that protect candidates from discrimination based on race, color, national origin, sex, disability, and numerous other protected characteristics. One common pitfall for smaller employers with inexperienced hiring managers is to ask candidates non-job-related personal questions. These are questions that may be asked with no intention to discriminate and would be innocuous at a networking event. For example, the following questions would be considered unlawful in an interview.
- “Are you married?
- “Do you have children?”
- “You sound like you have an accent, where are you from?”
These missteps can be avoided through appropriate training and consistent hiring policies and practices.
Conversely, more sophisticated employers with significant hiring needs should exercise caution to ensure that any new technologies (e.g. screening software, artificial intelligence tools) do not disproportionately exclude individuals from certain protected groups. This is a new and developing area, but the Equal Employment Opportunity Commission (EEOC) has published a comprehensive memorandum. It emphasizes that it is the responsibility of employers – rather than their software vendors – to regularly validate and test the technology used in employment selection procedures to ensure compliance with anti-discrimination laws.
Lastly, with respect to advertising for external candidates, Massachusetts employers should be aware that Governor Healy recently signed An Act Relative to Salary Range Transparency. Per this law, as of July 31, 2025, employers with 25 or more employees must disclose pay ranges in all job advertisements, including those by third-party recruiters. Employers must also disclose the pay range to a current employee offered a promotion, transfer, or a new position with different responsibilities.
2. Drafting and Reviewing Employment Contracts
Business owners often want to protect their trade secrets, confidential information, knowledge, and data through agreements with their employees. While non-disclosure/confidentiality, non-solicitation, and non-competition provisions can be enforced in Massachusetts, they are not without limitations. For example, the Massachusetts Non-Competition Act (MNAA), effective for agreements made after October 1, 2018, imposes a number of restrictions on the scope and enforcement of non-competition clauses. Legal counsel can help ensure compliance.
The majority of Massachusetts employees are at-will, and their employment is often offered and accepted via a one- or two-page offer letter. But employment relationships can be much more complicated than that. For example, onboarding c-suite-level executives who often come with highly sophisticated compensation packages, upfront severance provisions, and other benefits not offered to the average employee. These contracts would be best drafted by knowledgeable legal counsel.
3. Understanding Worker Classification
Consulting an employment attorney is essential when determining whether a worker is an employee or an independent contractor and whether they qualify as exempt or non-exempt from overtime requirements under the Fair Labor Standards Act (FLSA) and Massachusetts wage and hour laws. Misclassifying employees can lead to significant legal and financial consequences.
Independent Contractor vs. Employee. Misclassification often occurs when employers treat workers as independent contractors to avoid payroll taxes and benefits. Employees enjoy benefits like health insurance and unemployment compensation, while independent contractors do not. Massachusetts uses the “ABC Test” to assess a worker’s classification, focusing on their independence and the nature of their relationship with the employer. This is a very strict test that starts with the general premise that all workers are assumed to be employees unless shown otherwise by virtue of satisfying all three criteria of the ABC Test. Employers are often surprised to learn that someone whom the employer has classified as an independent contractor should actually have been classified as an employee.
Exempt vs. Non-exempt. Determining if an employee is exempt or non-exempt under state and federal law is equally important and is determined based on the employee’s compensation and job duties. Exempt employees are not entitled to overtime pay, while non-exempt employees are. Employers should take care to undertake this analysis when drafting a job description and hiring for a new role, as well as periodically assessing existing roles to ensure that the compensation and job duties align with the law. Of note, on Jan. 1, 2025, most salaried workers who earn less than $1,128 per week ($58,656/year) will become eligible for overtime pay. This is about a 33 percent increase from the current threshold of $844/week ($43,888/year).
4. Employee Training, Handbooks, and Policies
Additionally, employment counsel can assist in formulating policies addressing harassment prevention, anti-discrimination measures, and leave policies. Effective policies protect organizations from litigation and enhance employee morale by establishing clear behavioral expectations. Employee training is also essential to ensure staff understand company policies and their legal rights. Employment counsel can design training programs that equips employees to navigate workplace issues effectively.
5. Managing Employees Taking Family/Medical Leave
Massachusetts Paid Family Medical Leave (PFML) allows employees to take paid leave for family and medical reasons. Employers must understand eligibility criteria, contribution requirements, and how PFML integrates with existing policies. Accurate calculations of leave duration are crucial, as errors can lead to legal challenges and employee dissatisfaction. Moreover, employers are prohibited from retaliating against employees who take leave under PFML or the Family and Medical Leave Act (FMLA). This includes ensuring that returning employees are not discriminated against or denied opportunities.
Workplace injuries can also lead to complicated legal issues involving workers’ compensation claims. Understanding the timeline and requirements for reporting workplace injuries is essential. Workers’ compensation claims can also overlap with PFML leave, and challenges regarding reasonable accommodations when an injured worker returns to the workplace. Effective leave management requires clear policies and consistent communication. Consulting with employment counsel can help employers develop compliant policies, minimizing the risk of violations and lawsuits.
6. Handling Internal and External Investigations
When a business receives a complaint about potential unlawful conduct, such as sexual harassment, discrimination, or large-scale wage and hour violations, legal counsel plays a vital role in advising a business on next steps. This includes advising on whether or not to conduct an internal investigation and conducting such an investigation (or recommending and guiding the business on selecting another third-party investigator). Outside counsel can help define the investigation’s scope, establish interview protocols, and advise on document preservation to avoid evidence spoliation. Their expertise is crucial for maintaining confidentiality and protecting the organization from potential liabilities.
When businesses are investigated by agencies such as the Attorney General’s Office or the Occupational Safety and Health Administration (OSHA), the stakes can be even higher. Legal counsel can help navigate these situations, protect the organization’s rights, and foster a cooperative relationship with regulatory bodies.
7. Handling Employee Terminations and Drafting Severance Agreements.
Impulsive decisions to terminate employees can lead to legal claims. In general, employers are well-advised to keep thorough records of performance and behavioral issues in advance of executing any termination, particularly for long-term employees or those in protected classes. Employment counsel can advise you on the risks of terminating a particular employee in consideration of all the relevant circumstances.
The mechanics of a termination are also important. For example, Massachusetts law mandates that all earned wages, including vacation pay, be paid on the day of termination. Legal counsel can clarify what constitutes “earned wages” to ensure compliance with the Massachusetts Wage Act before termination. Violating this law can result in severe penalties, including triple damages and attorney fees.
The decision as to whether to offer a severance agreement to a terminated employee is also an important one. For example, a layoff of an employee for business reasons may be treated differently than the layoff of an employee chiefly for longstanding performance issues. If a decision is made to offer a severance agreement, legal counsel should be involved in drafting an appropriate agreement, advising on the terms, and negotiating with the employee’s counsel if necessary. A well-structured agreement provides financial support to the departing employee, while ensuring a complete and clear release of claims, safeguarding the employer from potential legal liability. It should also clearly outline severance pay, benefits, and non-economic conditions such as non-disparagement and confidentiality. Legal counsel can guide employers in crafting enforceable severance agreements, reducing the risk of future disputes and ensuring compliance with employment laws.
Conclusion
Successfully navigating Massachusetts employment laws requires a proactive approach. By engaging with experienced employment counsel, businesses can not only ensure compliance with complex regulations but also create a supportive and fair workplace culture. This investment in legal expertise not only safeguards against potential legal issues but also fosters employee trust and satisfaction, ultimately driving organizational success. In an ever-evolving legal landscape, prioritizing sound legal guidance is essential for businesses aiming to thrive and maintain a competitive edge.
Kathleen R. O’Toole and Brendan P. Kelley are employment attorneys at the Boston-based law firm Conn Kavanaugh Rosenthal Peisch & Ford, LLP. Kathleen is partner and co-chair of the Employment Litigation & Counseling practice. They can be reached, respectively at kotoole@connkavanaugh.com and bkelley@connkavanaugh.com
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