C.H.A.R.T Consulting-Nadine Pfautz-

YES, IT APPLIES TO YOU ALSO
Hiring, Firing and
Everything In Between

Presented By:
Nadine F. Pfautz, SPHR
C.H.A.R.T. Consulting
www.chart-consulting.com

HOT TOPICS
• Independent Contractor Law

• Data Security Law

• Personnel Records Law

• Technology and the Workplace


INDEPENDENT CONTRACTOR LAW
• Three-part test became effective July 19, 2004
• Requires all three elements must exist in order
for an individual to be classified other than as an
employee
• Burden of proof on employer

For reference purposes: www.ago.state.ma.us/


Independent Contractor Law

1. “freedom from control”
2. “outside the usual course of business of
employer”
3. “independently established trade,
occupation, profession, or business”


Independent Contractor Law
• Law is violated if:
– The worker doesn’t meet each criteria of the
3-prong test
– The employer violates one of more laws
• Wage and hour
• Minimum wage
• Overtime law
• Payroll recordkeeping requirements
• Tax withholding
• Workers’ compensation


Misclassification Issues

• Undermines fair market competition and
negatively impacts business environment
• State is deprived of tax revenue,
unemployment contributions, etc.
• Worker is deprived of job protections
and benefits


Penalties
• Substantial civil and criminal penalties
authorized
• Debarment from public works contracts
• Creates liability for both business entities and
individuals, including corporate officers, and
those with management authority over
affected workers

Penalty determinations depend upon the nature
and number of violations


DATA SECURITY LAW
• Standards for the Protection of Personal
Information of Residents of the
Commonwealth (March 1, 2010)
– Minimum standards to be met in connection
with the safeguarding of personal information
contacted in both paper and electronic
records
– Protect against unauthorized access to or use
of such information that may result in
substantial harm or inconvenience to any
consumer

Data Security Law
• Personal Information
• Massachusetts resident’s first name + last name or
first initial + last name
• With 1 or more of the following:
– Social security #
– Driver’s license # or State issued ID card #
– Financial account # or credit or debit card #
• Does not include information that is lawfully
obtained from publicly available information


Implications for Employers

• Safeguard Paper and Electronic Records
– Personnel Files
– Application Forms
• Ongoing employee training
• Ensure employee compliance with policies
and procedures


PERSONNEL RECORDS LAWS
• Personnel Records
– Identify an employee and
– Is, has, or may be used relative to that
employee’s
• qualifications for employment,
• promotion,
• transfer,
• additional compensation, or
• disciplinary action

Personnel Records Laws
• An employer with 20 or more employees must
keep personnel records to include:
– Name
– Address
– Date of Birth
– Job Title and Description
– Rate of Pay and Any Other Compensation Paid
– Starting Date
– Job Application
– Resume or Other Submissions
– All Employee Performance Evaluations and Other
Related Documents

• Reviewing Personnel Records
– Written Request
– Within Five Business Days
– At Place of Employment
– During Normal Business Hours
• Copying Personnel Records
– Written Request
– Within Five Business Days


• If There is Disagreement
– Mutual agreement to remove or correct
– If no agreement, employee may submit a
written statement
• Which must be included when information
is transmitted to a third party as long as
the information is retained as part of the
file


• 2010 Amendments
– Give Notice Within 10 Days of Placing
Negative Information into the Employee’s
Personnel Record
– Review and/or Copy Maximum Two Times Per
Year
• Not Including When Additions are Made to
the Personnel Record


• Questions Remaining
– 10 Days – Calendar or Business Days?
– Investigations into misconduct requiring
more than 10 days to complete
– Casual email exchange between two
managers
– Manager’s notes for his/her own
“personnel files”

TECHNOLOGY & THE WORKPLACE
• Twitter
• LinkedIn
• Facebook
• MySpace
• Personal Cell Phones
• Texting
• Blogging
• Etc.

On Line Lives of Applicants

• Available information

• Useful information

• Discriminatory information


Texting at Work
• A distraction from work
• Shows a lack of respect
• Common courtesy
• Have a policy if appropriate
– No cell phone use in the building during
working hours
– Allowed outside the office during breaks or
lunch hour


Social Media and Work
• 54% of employers say they completely
prohibit social media use by workers1
• What’s okay at one company, may not be
at another and what’s okay for one
employee may not be for another

1 According to Robert Half Technology’s survey of 1400
employers with 100 or more employees


Personal Web Site and Blogs
• Consider having a policy
– Respect employee’s right to use these
mediums
– But, on personal time unless job requires it.
– If employee identifies him/herself as an
employee have more in depth guidelines
– And, spell out what will happen if employee
violates the policy.


KEY REGULATIONS

• ALL EMPLOYERS
– MA Wage Protection Act
– Meal Break Requirement
– Posting Requirements
– Immigration Reform and Control Act


Key Regulations
• SIX OR MORE EMPLOYEES
– MA Sexual Harassment Policy
– MA Fair Employment Practices Act
– MA Maternity Leave Act

• FIFTEEN OR MORE EMPLOYEES
– Civil Rights Act 1964, amended EEOA, 1972
– Pregnancy Discrimination Act
– Americans With Disabilities Act

Key Regulations
• TWENTY OR MORE EMPLOYEES
– Older Worker’s Benefit Protection Act

• MORE THAN TWENTY EMPLOYEES
– Age Discrimination Act

• FIFTY OR MORE EMPLOYEES
– Family and Medical Leave Act
– MA Small Necessities Leave Act

QUESTIONS?

The information provided is based on general human resource management fundamentals,
practices, and principles and do not constitute legal interpretation or advice.


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