Articles Posted in Pay

A former attorney for a large law firm in Massachusetts has filed suit against her ex-employer, whom she says fired her for taking leave after an adoption. concentration.jpg

Our Boston employment lawyers know that similar to the protected maternity leave extended to new mothers of biological children, adoptive parents are eligible for the same leave under state law.

The Massachusetts Maternity Leave Act, M.G.L. c. 149, 105D, allows for up to eight weeks of time for which a female employee may be absent from her job for the purpose of either giving birth OR adopting a child and then subsequently caring for that new child. The law stipulates that adoptive parents, just like biological parents, may take time to prepare for and participate in the birth.

The protection extends to adoptive parents who are legally adopting any child under the age of 18 or under the age of 23 if the child is physically or mentally disabled. The law holds that the employee has to give at least two weeks’ notice and employers are not allowed to refuse this time, even in cases where doing so would create a hardship.

MMLA affords this opportunity to female employees, though the law makes note that if employers extend this time only to female workers and not male workers, they may be in violation of federal law, even if they are in compliance with the state law.

In this case, the plaintiff alleges that her law firm employer terminated her shortly after she formalized her adoption of a daughter from China and went on her protected leave period. She alleges that despite a long record of stellar reviews, she received her first negative review shortly after the adoption. Further, she was given a significant reduction in bonus pay.

She now says that she was discriminated against, as one of the firm’s older female employees, for taking a period of leave that was unquestionably protected. In addition to economic damages for back pay and interest, she is seeking $5 million compensation for punitive and compensatory damages, as well as attorneys’ fees.

In backing her claim, the plaintiff alleges that in her seven years working for the firm, only one female employee over the age of 50 was promoted to partner. Mind, you this was an agency that employed more than 1,000 lawyers. The majority of those who were so bestowed were under the age of 40, according to her contentions.

Complaints of gender discrimination can be difficult to prove, and require a legal representative with extensive experience. In many cases, it’s not enough to prove that an employer was dishonest about an employment decision; it must be proven that the dishonesty was intended to conceal discriminatory intent.
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The parent company for the major chain restaurants of Olive Garden, Red Lobster, Longhorn Steakhouse and others, is facing allegations of wage violations. waiterwithtray.jpg

It’s not the first time that the company, Darden Restaurants, has been the target of these allegations. In fact, the U.S. Department of labor’s Wage and Hour Division fined the company twice in 2011, saying employees at Red Lobster and the Olive Garden were made to work off-the-clock. Similar suits are pending.

The company employs some 180,000 people in about 2,000 restaurants.

Our Boston employment lawyers have represented both employees and businesses in these types of matters. While certain labor laws are clearly defined, others may result in areas of gray. It’s important that both businesses and employees be educated on their rights and potential options for dealing with violations.

The Fair Labor Standards Act, a federal law, lays bare the foundation for fair pay. The minimum wage in the U.S. right now is $7.25 an hour. in Massachusetts it’s more, $8 an hour, the highest rate in the country.

For tipped employees, it’s a little different. Tipped employees are those who are classified as receiving more than $30 each month in tips. These wages are considered the property of the employee, and the business is not allowed to use those tips for any reason other than a credit against its minimum wage obligation to the employee. Companies are currently required to pay tipped employees a minimum of $2.13 an hour.

The FLSA specifically addresses “dual jobs.” This is when an employee does both tipped and non-tipped work. What the law says is that if a person works as, say, both a waitperson and a maintenance person, the employer has to be careful.

The example given is that a server who spends some of the time cleaning up or setting tables or washing glasses or rolling silverware is still considered to be working in a “tipped occupation,” even though those tasks don’t actually generate any tips.

However, if the employee spends a “substantial” amount of time taking care of those non-tip related duties, then employers can’t claim that tip credit during those hours – meaning they would have to pay the full minimum wage during that time. “Substantial” is defined as in excess of 20 hours each week.

These issues are the center of the current case.

The lawsuit, filed in federal court in Florida, seeks potentially tens of millions of dollars in back pay, punitive damages, interest and attorneys fees.

Among the specific claims being made:

  • That employees were required to work over their allotted 40 hours without being paid time-and-a-half as required by law;
  • That tipped employees were required to roll silverware, vacuum, refill salt shakers and conduct other side work that went beyond the 20 percent threshold;
  • That servers who arrived for their scheduled shift were not allowed to clock in for work until customers arrived. Some also allege they were forced to clock out and continue working without pay.

Since this case is being filed as a class action, it’s expected at least 1,000 individuals will join the suit, though many more are likely eligible.

Having represented both businesses and employees in similar matters, we are well-qualified to understand the issues and will fight aggressively for your best possible outcome. Consulting with a law firm when setting your pay structure can help you best determine your obligations as an employer and stay on the right side of the law.
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A recent lawsuit alleges that 20th Century Fox, the company that produced the psychological thriller “Black Swan,” failed to pay two former interns who worked on the movie. The suit claims the interns were unpaid in violation of state and federal wage laws.

According to a 2010 fact sheet produced by the U.S. Department of Labor, the agency set up guidelines to ensure that companies are following federal labor laws with the hiring of unpaid interns.
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Our Boston employment lawyers recognize that internships are an important part of preparing for the labor force not only for college students, but for high schoolers as well. And the fall and winter months are often the time these young people begin looking for summer opportunities to learn the skills in their field of study.

But this also doesn’t mean that companies can take advantage of these young people and violate Massachusetts wage laws simply because they are offering experience. There are laws that are applied to any workplace setting and they must be followed.

The Department of Labor wrote that interns in the private, for-profit sector are considered workers unless they are considered trainees. If they are employees, they must be paid at least minimum wage and overtime if they work more than 40 hours a week.

Here are the guidelines for situations where an intern can be considered a “trainee” or working for their own interest:

  • The internship is similar to training in an educational environment.
  • The experience benefits the intern.
  • The intern doesn’t replace regular employees, but works with existing staff.
  • The employer gets no benefit from the intern’s activities and actually sometimes impedes corporate function.
  • The intern isn’t necessarily guaranteed a job at the end of the internship.
  • The employer and intern understand the intern isn’t to be paid.

In the Black Swan case, two interns filed a class action lawsuit in federal court in New York on behalf of unpaid interns everywhere. Federal and state standards must be complied with by employers who seek interns to help their understaffed departments. And students who crave real-world experience s boost to their resumes must still be treated fairly.

While employers and interns see this setup as a win-win situation, our Boston employment lawyers can assist a company in ensuring they are in legal compliance. And we stand ready to assist interns who believe they have been treated unfairly. In the case of unpaid interns, they often get stuck doing the kind of work that a person would get paid to do as an entry-level job. In many cases, the intern gets no real experience to help their studies, but the company gets free labor for a matter of weeks or months.

The lawsuit alleges that the film only cost $13 million to make on the backs of interns who were production assistants, bookkeepers and performed janitorial and secretarial jobs for the company. The movie grossed $300 million at the box office.
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The Herald News reports that a Stoughton business owner was recently sent to prison for seven years in connection with running a $30 million scheme in paying employees.

Boston payroll issues are critically important for employees and employers alike. For businesses, navigating the complex payroll laws in Massachusetts can be treacherous and requires sound legal advice.
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A small business (or a large one!) can’t afford legal distractions when it is trying to make a mark on the marketplace. This can not only take away from the focus of the company’s owners, but close the window of opportunity it has to make an impact.

In this case, business co-owner Michael Powers was sentenced to seven years in prison and fined more than $9 million, which will be paid to the Internal Revenue Service, two insurance companies and the Massachusetts Department of Unemployment Assistance.

He co-owned a temporary work agency and was convicted of holding back state and federal payroll taxes and workers’ compensation insurance premiums. After the seven years in prison, he must complete another two years on supervised release.

After a trial, Powers and his co-owner, co-defendant, John Mahan were convicted each on one count of mail fraud, two counts of filing false tax returns and one count of conspiracy to defraud the IRS and workers’ compensation insurers.

The government alleged that from 2000 to 2004, they operated Commonwealth Temporary Services, Inc., which put to work many unemployed people throughout Massachusetts. But instead of paying employment taxes, including Social Security and Medicare, they under-reported their payroll and paid much of it in cash. This also reduced the company’s insurance premiums, the newspaper reports. The total fraud, prosecutors argued, was $30 million.

The newspaper reported that the man’s co-defendant was sentenced to just over 6 years in prison for his role in the case.

This case represents an orchestrated attempt to thwart payroll and tax laws that govern small businesses. But there are many examples of companies just getting started who may get caught up in an IRS audit or other type of scrutiny.

When companies start from scratch, they must have sound legal advice for all aspects of their business. There are many laws on the books governing employment. With the government constantly looking to collect as much tax revenue as possible, the IRS has been called on to step up its efforts.

This is why it’s critical for small business owners to contact a Boston employment lawyer if they have questions about their payroll system. And workers who feel they might be getting shorted or suspect something isn’t right should also seek advice to ensure their company is held accountable.
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MBA
Boston Bar Assosiation