• Misclassification hurts the individual employee by denying them protections provided to other individuals classified as employees including workers compensation, company benefits, vacation and holiday benefits and protections against discrimination and wage violations.
• Employers who misclassify individuals as independent contractors enjoy a “windfall” including the avoidance of taxes which imposes significant financial burdens on the Federal government and the Commonwealth in lost tax and insurance revenues.
• Employer who misclassifies employees as independent contractors have an unfair competitive advantage over employers who correctly classify their employees and bear the financial burden of vacation and overtime pay; Social Security and Medicare contributions; unemployment insurance contributions; and payment of workers’ compensation premiums.

Employers who are unsure how to properly classify staff should consult with an employment attorney to avoid costly litigation and strict penalties including automatic treble damages for unpaid wages, including overtime, value of benefits offered to properly classified employees, interest and payment of attorney’s fees.

Employees who believe they are being misclassified should also consult with an employment attorney to determine whether they are being properly paid and provided benefits and protections required under the law.

Whether an employee or employer, contact us by phone at 617-396-4600 or by email to info@greeneandhafer.com for a consultation on this topic.

The post Why the Massachusetts’s Misclassification Statute is Important appeared first on Greene & Hafer Employment Law.

To qualify for the outside sales employee exemption, all of the following tests must be met

-The employee’s primary duty must be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

-The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Many sales people are misclassified because they do not meet the requirement that the employee be “away from the employer’s place of business.”

An outside sales employee makes sales at the customer’s place of business, or, if selling door-to-door, at the customer’s home.  Outside sales does not include sales made by mail, telephone or the Internet unless such contact is used merely as an adjunct to personal calls.  Any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitation of sales is considered one of the employer’s places of business, even though the employer is not in any formal sense the owner or tenant of the property.

The takeaway here is that if you are a sales person and you are not out on the road for a portion of the week meeting with customers or working on sales, you may be entitled to overtime and an hourly pay rate. You should seek out experienced unpaid wages lawyers.

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Summary of Final Rule

• Raises the salary threshold for the executive, professional and administrative exemptions from $455 per week to $913 a week ($47,476 for a full year worker).   This is the first increase since 2004.
• Raises the salary threshold for automatic exemption as highly compensated employee (“HCE”) from $100,000 per year to $134,004 per year.
• Allows up to 10% of the salary threshold for non HCE employees to be met by non-discretionary bonuses, incentive pay or commissions provided that the payments are made at least quarterly.
• There is no change to the exemption “duties test.” Employee who meet the salary threshold must also meet the current duties test in order to be exempt from overtime regulations.
• The salary threshold will updated every three years and will reflect the salary of the 40^th percentile of full time salaried workers in the lowest wage Census region.

The new rule will be effective December 1, 2016.

What This Means for Employees and Employers

Exempt employees who earn less than $47,476 per year will need to be reclassified as non-exempt and paid overtime (time and a half) for all hours worked over 40 in a week, as of December 1, 2016.

The post Changes to the Overtime Regulations appeared first on Greene & Hafer Employment Law.

Massachusetts Wage Act – failure to properly pay timely wages including overtime provides for automatic treble damages and attorney’s fees.

Earned Sick time Law– all employees are entitled to accrue earned sick time. Employers with 11 or more employees must provide for paid sick leave.

Parental Leave – The parental leave law is now gender neutral. Both men and women are entitled to parental leave for up to 8 weeks.

Independent Contractors: Most employment relationships in Massachusetts do not qualify as independent contractors which can give rise to claims for overtime and unpaid wages and benefits under the Wage Act.

Have questions? Contact Us!

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Contractions/Employees:  If you are improperly classified as an independent contractor (ie.. paid on a 1099 form)  you could be entitled to payment for overtime wages,  lost wages and benefits which you are excluded from based on your misclassification. Some factors to consider in determining whether you are improperly classified:

• Terms of work and the manner of your work is controlled by the employer;
• You perform work typically performed by other employees;
• You are included in company events and trainings typically attended to by employees;
• You are compensated based on your performance level;
• You submit your hours like all other employees and are not required to provide an invoice for your services;
• You are required to work certain hours;
• You use the employer’s tool and technology to perform your work.
• If you are unsure if you are properly classified, contact us to assist you in determining if you should be entitled to damages for misclassification.

For employers – it is important to properly classify employees.  Gov.  Patrick is stepping up enforcement of the Independent Contractor law for the following reasons:  1) to prevent worker exploitation; 2) to stop the loss of state payroll tax dollars as a result of fewer employees being reported; and 3) to ensure workers’ compensation insurance coverage for misclassified employees.

What can you do as an employer to avoid possible liability? Contact us to audit your workforce classifications and assist you in making sure you are treating independent contractors properly to avoid possible civil liability.

The post Mass. Independent Contractors: What you need to know appeared first on Greene & Hafer Employment Law.