Practice Areas

Sexual Harassment

There are two types of sexual harassment in Massachusetts.“Quid Pro Quo” sexual harassment is when a sexual advance / request for a sexual favor or verbal or physical conduct becomes a term of the employee’s employment. In other words, “If you do not give me ‘X’ then I will do ‘Y’. 

More common is Hostile Work Environment sexual harassment.   Sexual harassment based upon a hostile work environment is when the sexual harassment (sexual advances, requests for sexual favors and / or verbal or physical sexual conduct) unreasonably interferes with an employee’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

There are many types of behavior that constitute sexual harassment.  Often times individuals do not know whether conduct rises to the level of sexual harassment.  However, if it feels unwelcome and sexual in nature, it is a good idea to contact an experienced employment law attorney.

Discrimination

Both Federal and Massachusetts statutes prohibit discriminating against an employee (or potential employee) because of that employee’s membership in a protected class.  Examples of protected classes are:

  • Race

  • National Origin

  • Religion

  • Gender

  • Pregnancy

  • Family Responsibility

  • Sexual Orientation

  • Disability

  • Age

All employees should be treated the same, regardless of their membership in one or more protected classes.  If an employee who is a member of a protected class is being treated differently than employees who are not in that same protected class, unlawful discrimination may be occurring.  Examples of mistreatment include: demotion, termination, unequal treatment and / or harassment.

Unpaid Wages & Overtime Claims

An employer may violate the Massachusetts Wage Act in many ways.  The most common Wage Act violations are:

  • failing to pay wages

  • failing to pay overtime wages

  • failing to pay commissions or mislabeling a commission a “bonus” in order to avoid making payment

  • employee misclassification as an independent contractor

  • employee misclassification as exempt from overtime eligibility

  • failure to pay vacation

Massachusetts has a very strict Wage Act for employers to abide by because it recognizes that an employer is responsible for the livelihood of its residents.  Unfortunately, violations are common, so it is important for employees to know their rights when it comes to their pay.   Attorney Herold has represented hundreds of employees in Wage Act violation claims and one of her main practice focuses is to ensure that every individual is paid fairly for their work.

Employee Misclassification

An individual who is considered an “independent contractor” by an employer is often times misclassified and should be considered an employee.  Massachusetts is very strict about when an individual may be correctly classified as an independent contractor versus an employee.  The applicable law heavily favors classifying workers as employees and not independent contractors unless all of the following are true:

  • the worker is free from the control and direction of the employer in the performance of the service; and

  • the work performed is outside of the usual course of the employer’s business, and

  • the worker is regularly engaged in an independently established business that performs the same service as the service provided to the employer.

Workers who have been misclassified may be entitled to minimum wage, overtime and other types of monetary damages.  Herold Law Group, P.C. seeks to protect individuals from being taken advantage of by being improperly misclassified as an independent contractor.

Family Medical Leave Act (FMLA)

Any employer who employs 50 or more employees in a 75 mile radius must offer its “qualified employees” leave under the FMLA if any employee experiences an FMLA “qualifying circumstance”.  A qualified employee is any employee who has been employed 12 months or longer and, within the last 12 month period worked 1,250 hours within that 12 month period.  A qualifying circumstance is considered to be:

  • the birth of a child and to care for the newborn

  • for the placement with the employee of a child for adoption or foster care and to care for the child

  • to care for an immediate family member with a serious health condition, and

  • when an employee is unable to work due to a serious health condition.

An employee qualified for leave is entitled to 12 weeks of unpaid leave, and in some circumstances may be taken intermittently.  An employee who takes FMLA leave must be placed into the same or “equivalent” position that the employee held prior to taking leave.

The FMLA is a complex statute regarding an employee’s right to take leave when important life events occur.  It is worthwhile to speak with a knowledgeable attorney when any employee needs leave and is denied or experiences any type of retaliation as the result of taking leave or attempting to take leave.

Unemployment

When employees separate from an employer, they are often entitled to receive unemployment compensation.  Whether an employee has been terminated, quit or laid-off, the employee may be eligible to collect unemployment.  Many employers attempt to deny an employee unemployment benefits which results in delayed or suspended benefit payments and may require that the parties attend a hearing. It is worthwhile to consult with an attorney prior to a hearing to ensure that an individual receives all of the benefits that they are entitled to.

Severance Package Reviews & Negotiations

Employers sometimes offer a departing employee a severance payment, or a payment above and beyond and money legally due to the employee at the time of departure. Often, the severance agreement will require that a departing employee waive all legal claims in order to receive the payment. It is important to have this type of agreement reviewed by a qualified attorney to ensure that a departing employee is not waiving important legal rights.

Non-Compete / Non-Solicitation / Non-Disclosure Agreements

Non-compete, non-solicitation and non-disclosure agreements are all restrictive agreements that attempt to limit and employee’s actions upon separation from an employer. These types of agreements are being made a part of hire with more and more frequency, but are not always valid or enforceable. Whether you are being asked to sign one of these agreements or whether your employer is attempting to enforce one of these agreements against you, please contact Herold Law Group, P.C. if you have questions or concerns about how one of these types of agreements may affect your employment obligations with your employer or prospective employer.