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

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HOT TOPICS

• Independent Contractor Law

• Data Security Law

• Personnel Records Law

• Technology and the Workplace

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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/

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Independent Contractor Law

1. “freedom from control”

2. “outside the usual course of business of employer”

3. “independently established trade, occupation, profession, or business”

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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

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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

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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

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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

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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

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Implications for Employers

• Safeguard Paper and Electronic Records

– Personnel Files

– Application Forms

• Ongoing employee training

• Ensure employee compliance with policies and procedures

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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

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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

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Personnel Records Laws

• 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

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Personnel Records Laws

• 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

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Personnel Records Laws

• 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

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Personnel Records Laws

• 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”

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TECHNOLOGY & THE WORKPLACE

• Twitter

• LinkedIn

• Facebook

• MySpace

• Personal Cell Phones

• Texting

• Blogging

• Etc.

On Line Lives of Applicants

• Available information

• Useful information

• Discriminatory information

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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

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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

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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

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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

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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 ActC.H.A.R.T. Consulting

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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