1. 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
4. HOT TOPICS
• Independent Contractor Law
• Data Security Law
• Personnel Records Law
• Technology and the Workplace
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5. 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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6. 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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7. 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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8. 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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9. 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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10. 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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11. 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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12. 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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13. 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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14. 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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15. 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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16. 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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17. 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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18. 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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19. TECHNOLOGY & THE WORKPLACE
• Twitter
• LinkedIn
• Facebook
• MySpace
• Personal Cell Phones
• Texting
• Blogging
• Etc.
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20. On Line Lives of Applicants
• Available information
• Useful information
• Discriminatory information
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21. 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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22. 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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23. 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.
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24. KEY REGULATIONS
• ALL EMPLOYERS
– MA Wage Protection Act
– Meal Break Requirement
– Posting Requirements
– Immigration Reform and Control Act
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25. 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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26. 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
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27. 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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