Are Franchises In Massachusetts Bound By Classification Law

The Massachusetts Supreme Court is poised to hear arguments about an important question in employment law that could result in consequences to franchise owners in the state — and eventually all over the country. Right now, franchise owners don’t enjoy legal protections afforded to everyone else. These range from minimum wage to workers compensation. Are 7-Eleven employees store managers? That’s the question.

Employees enjoy many protections according to employment law. They cannot be paid below the minimum wage. They must be paid overtime when the hours in a standardized workweek have been exceeded. Any work-related expenses must be reimbursed by the employer. For example, an employer might be required to pay for an employee’s gas expenses if asked to travel to another store farther away. 

The question may be a legal one, but franchise owners expect that the consequences could destroy the business model completely.

Justice Scott Kafker said, “I’m very sympathetic to the little guy who is working in all these stores. But I have very little sympathy for your argument that would convert entrepreneurs into employees.”

There’s an obvious reason for this reply, even though it seems harsh: entrepreneurs are taking a risk when establishing a new business. That risk represents an investment. And investments often don’t work out for the best. That’s the nature of the game.

But the ruling might also allow other businesses to use the franchise model in an effort to evade protections granted to employees under employment law. 

The plaintiffs say they are 7-Eleven employees and would like the law to recognize that status. But 7-Eleven spokespeople argued that those classification laws weren’t applicable because there are other laws that already regulate how they must operate — under the United States Federal Trade Commission. The question remains unanswered for now. Appeals courts will soon have their say.

The Massachusetts Supreme Court eventually provided a “joint employment” test in response to a separate lawsuit against the companies Credico and DFW. Four points must be met to achieve a standard of employment. Who had the power to hire or fire an employee? Who supervised the employee on a regular basis and provided the employee’s work schedule? Who determined the employee’s pay? Who maintained records for the employment of the worker?

According to the four points, Credico was found not to be a joint employer after the suit was filed. Businesses are mostly in favor of the new standards because the new law rejects broader definitions of what joint employment is (which has opened these businesses to frivolous lawsuits). It also makes state and federal law one and the same. Finally, it leaves companies that aren’t responsible for violations free and clear of the consequences for those violations.

An anonymous lawyer for sederlaw said, “We find our clients are happy about the new ruling. Laws aren’t exactly known for simplifying business relationships. Quite the opposite, actually. So this has been a breath of fresh air for the business community. And of course it also makes our job easier too.”

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Coronavirus Cases Poised To Skyrocket Even More

And when we say cases are trending upward, we mean that in every sense — litigation and actually coronavirus infections are both on the rise.  At this point, failing to implement preventative measures in the workplace is unconscionable and inexcusable. Is your employer failing to implement the required changes to make you feel safe and comfortable in the workplace? You might have a good case.

Most people, however, will not.

But that’s okay. The world is changing, and we must change with it. Not all of us will get what we want. Many will be bankrupted by a broken system that left them without health insurance right when they needed it the most. Unemployment continues to skyrocket. Governments continue to make the wrong call, even as health experts tell us exactly what we need to do.

Ultimately, those governments are the ones that will be held accountable — although it might take a long time to gather the support to make them pay up. It’s especially hard to litigate a government, because that government almost always imposes limits and caps for lawsuits in different categories.

For now, we recommend keeping track of the missteps made by superiors if you’re still at work. We don’t make this recommendation so you can take aggressive action. We make it so you can take defensive action if you are taken advantage of by others. Continue to wear a mask and stand six feet apart during interactions.

We find it inexcusable that workers have still not been given hazard pay when they are making less than people on unemployment while taking all of the risk. We will continue to fight to ensure that businesses do not take advantage of their workers.

Do you have a personal injury case because of coronavirus restrictions or failure to act? We would like to hear about it. Contact us today to speak with a personal injury attorney.

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New Personal Injury Cases Expected In Wake Of Coronavirus Outbreak

Our last article asked whether or not we could sue after catching coronavirus on the job — and perhaps we jumped the gun when we said that the answer was almost certainly “no.” We still contend that it will be difficult for a plaintiff to prove that the coronavirus was contracted due to someone else’s negligence, but new possibilities have arisen since we visited the subject last. We do expect many new cases in the coming months and years.

The reason is simple. Many people have found themselves at the doors of financial ruin, and employers across the country have done precious little to help avoid calamity. But it’s not just employers. Individuals are still playing the role of the village idiot when confronted with a harsh reality they don’t understand.

For example, one shopper licked a number of Wal-Mart products while asking “Who’s afraid of coronavirus?” He was subsequently arrested and charged with making a terrorist threat. We could never have anticipated that local and state authorities would take this approach with people who weren’t taking this outbreak seriously. Because they are taking it seriously, lawsuits built against those who have already been charged or convicted of threats like these will be much easier to win.

Thousands of employees across the country have been laid off because small business owners cannot afford to keep them on. And non-essential businesses have been forced to close their doors by state and local governments, which means many people are unable to work regardless. Those businesses that have stayed open are under a barrage of attack from employees.

Employees are demanding paid sick leave, hazard pay, and safe working environments amidst one of the most dangerous pandemics of our modern era — and who can tell them they don’t deserve all those rewards for working through this crisis? 

Business owners will be sued for forcing employees to work while sick — or, at the very least, providing them with little alternative to work because they simply don’t make enough. If you’re not fired or laid off, you can’t collect unemployment. Quitting won’t get you a check. That means if you’re sick, tough luck. Courts will not like that logic in the coming months.

That’s because this situation is expected to go from bad to worse. Should the numbers continue to escalate at the current exponential rate, we can anticipate thousands of American fatalities every day by the beginning of May. This is a scary nightmare scenario for hospitals across the country that are ill-equipped to deal with the crisis at hand, and it’s closer and closer to a reality.

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Can You Sue If You Catch Coronavirus While On The Job?

Coronavirus is spreading. Although the illness is not especially virulent — it seems to hit older folks hardest — it has spread to infect at least 100,000 people. Those cases most likely define the subject with severe symptoms. There are probably hundreds of thousands of people already infected, but who will never seek medical help because their symptoms don’t warrant a trip to the doctor’s office.

Still, at this point it seems like you’re most likely to come down with the virus at some point. That’s especially true if the virus becomes endemic or mutates to become more dangerous, which are the biggest fears that scientists have right now.

Because so many people are expected to become infected with the virus — and soon — we’ve been swamped with questions about how to pay bills. This is especially important because so many people who have been placed into quarantine have later discovered the massive bill waiting for them when they were finally released. Hardly seems fair, does it?

But unfortunately, it’s an illness like any other — even though it’s new. You can hardly sue because someone gave you the flu, right? And you can hardly place the blame on anyone if you don’t know who was to blame for your infecting, a feat which is nearly impossible now that case numbers have blown up all over the country.

However, there might be some circumstances in which you can sue for medical expenses. For example, you might have some legal backing if you were on one of the cruise ships stranded because of the virus. Were you a passenger in quarantine? Did the period of isolation cause you physical or mental harm? Did you lose money because you could not return home? 

Furthermore, were the cruise lines themselves partially responsible? Did they take all applicable measures to prevent illness onboard? Usually, you see cruise preparedness everytime you enter a dining room. “Wipey, wipey!” yells the guy who asks you to use hand sanitizer before you enter.

While no one will likely find support trying to sue for personal injury because they caught coronavirus at their employment center, you might have a case if your loved one was infected and/or died from the illness at a nursing home or hospital. The big question is whether or not you can prove the negligence of these organizations. Did your loved ones receive the appropriate standard of care?

If you can prove otherwise, you might have a case. Try contacting a personal injury lawyer with a firm near you to share your story and find out fast!

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How Fast Is Employment Law Changing Because Of Public Demand For Fairness?

By now, we’ve covered the various upheavals in the tech industry. Workers want the ability to disregard non-disclosure agreements (NDAs) that serve corrupt bosses. If someone is subject to sexual harassment in the workplace, should they really be barred from saying anything or speaking against the company because of an NDA? Is that fair? Is it just? The world seems to be saying no, it’s not fair, and it’s not just, and we’re going to do something about it right now.

The change may have been a long time coming, but more change is in the future. How fast can we legislate what we need, though?

That’s the question that attorneys David Poole and Brian Koegle of Poole Shaffery & Koegle, LLP try to answer in their presentation: “Be Afraid. Be VERY Afraid!” Their 2020 Employment Law Update will be made possible by the Santa Clarita Valley Chamber of Commerce, where the event will be held on February 4, 2020. 

Koegle said, “Just because you made a change to your employee handbook last year or the year before does not mean you’re safe. As the laws change each year, your handbook needs to be updated, and if it isn’t, then your business could be exposed to significant liability. Both drastic and minimal changes to the law are enacted every year, and if you’re not aware of them, it could end up costing you and your business tens of thousands of dollars.”

And those short-sighted mistakes could cost clients, too. No one wants a lawyer who doesn’t actually know the laws of the day.

Poole said, “The purpose of the upcoming presentation is to help businesses understand and prepare for a new year of changes, so they can take proactive steps to protect themselves and their businesses. Without a knowledge and appreciation of these laws, business professionals unknowingly could make significant and costly mistakes.”

According to a press release for the event, the team will cover new laws regarding independent contractor classification, best practices for employers who have hourly employees, arbitration agreements, overtime for non-exempt employees, and new training requirements regarding sexual harassment.

Koegle described California’s place in all this. “California has some of the nation’s strictest business regulations,” he said. “And every year the laws change. Your business cannot afford to ignore these changes.”

There were a whopping 72,675 workplace discrimination charges obtained by the U.S. Equal Employment Opportunity Commission (EEOC) during 2019. The vast majority of these charges alleged retaliation in the workplace, followed by disability, race, sex, age, and national origin.

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“The National Law Review” Makes Employment Law Forecasts For 2020

The employment law industry is poised to make some of the most sweeping changes in decades. Most of these will have resulted from the wave of #MeToo lawsuits against major tech companies, some of which were supposed to be barred by company-mandated nondisclosure agreements. Many judges have since ruled that those NDAs don’t bind employees who wish to speak out against (or make allegations of) sexual harassment within their companies.

New York Governor Andrew Cuomo signed a new law in August of 2019 to expand anti-discrimination rights and protections for workers throughout the state. Beginning on January 1, 2020, nondisclosure agreements and similar contracts will no longer be legally considered binding agreements. Employees will be free to make complaints in the public spotlight, if they so wish.

California Governor Gavin Newsom signed a new law in October of 2019 to expand the rights of his own state’s workers. Previously, workers who fell victim to harassment only had a single year to file a lawsuit. The statute of limitations has been increased to three years in order to give people more time to come forward with evidence.

Another piece of California legislation, SB 778, gives employers an extra year to provide employees with sexual harassment prevention training. Courses take two hours to complete for supervisory tasks. All other employees require only one hour to complete their training. The training must be renewed at least once every two years.

Meanwhile, Connecticut employers have until October 1, 2020 to provide their own employees with sexual harassment training.

The newly legislated Oregon Workplace Protection Act that prohibits NDAs made on the basis of “preventing the employee from disclosing or discussing [illegal] conduct” according to state or federal laws.

A number of states are also barring employers from implementing arbitration agreements. These contractual obligations prohibit employees from suing an employer, forcing them to instead challenge employers using binding arbitration.

Nevada’s SB 312 mandates at least 40 hours of paid leave for state employees. Several other states and Washington D.C. have implemented similar laws.

Many states are also beginning to implement restrictions of artificial intelligence applications during the interview process. For example, Illinois recently enacted a law that forces employers to disclose to job applicants whether or not videotaped interviews will be analyzed using artificial intelligence. The disclosures must provide specific information as to how and why the AI will be used.

A number of other laws are set to govern digital security, recreational marijuana, pre-employment drug testing, salary inquiries, etc. 

The Supreme Court is expected to rule on the question of whether or not Title VII protections should be extended on the basis of sexual orientation sometime next year.
Additional details on the review can be found here.

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Turns Out Google Is A Bad Place To Get Employment Law Advice — Really, Really Bad

Being lazy when seeking legal help has recently increased the number of people who have been fired. Why is this the case? Because people have been turning to Google for legal advice instead of simply calling an employment law attorney, which, you guessed it, is just as free when it comes to a first consultation, and much less likely to result in an angry confrontation with your boss. 

On top of that, the demographics in the United States are changing. Younger people are more likely to do a quick Google search rather than go outside, which means the trend will likely continue into the foreseeable future.

And it’s not just lawyers or employers who are noticing this trend. Anyone who’s watched an episode of House M.D. will remember how the hilariously sarcastic doctor responded to patients who turned to search engines to self-diagnose: like they were idiots. And there’s a reason for that. The online world might be a great source of aggregated data, but the layman is absolutely terrible at figuring out which data are relevant and which are not. 

The same thing is happening in employment law. 

One employment law attorney told a story about how the factors that determine a worker’s severance pay are complicated, “including age, years of service, remuneration, position, and availability of comparable employment…there is no magic formula.” He went on to describe the dramatic increase in online algorithms that say they can do the work of a lawyer when in fact they don’t even come close.

He continued, “Recently, I met with three different clients, all of whom believed they had been constructively dismissed. Not one of them had. One employer had modified the employee’s hours of work, another the employee’s job duties and another rate of pay. In isolation, these modifications do not necessarily constitute a constructive dismissal.”

The problem, he said, was that his clients had all read the same type of online article that provided the wrong information, or that they had wrongly applied the right information to their own situation. And more people are doing exactly that. To lawyers, it’s beyond aggravating. It means more people are coming through the doors strongly believing in a case that isn’t there. 

The people who use these websites as a source of information are less likely to ask an employment lawyer, though; instead, they are routinely waltzing up to their bosses to make a direct confrontation. And the number of people who are terminated for this very reason is on the rise. 

At the very least, know the difference between legal severance and illegal constructive dismissal!

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New California Law Would Open Up Can Of Worms For Workplace Harassment Claims

Workplace harassment is a difficult subject for state governments struggling to understand that anonymity can mean the difference between keeping one’s job or losing it. And the worst part is, company-mandated non-disclosure agreements (which are a staple for big companies these days) prevent anyone from discussing these matters with outside parties. That means if you’re fired for blowing the whistle on harassment, there’s nothing you can legally do about it.

One of the most public examples of these policies recently involved Fox News anchor Gretchen Carlson. You might remember that she leveled an accusation of sexual harassment toward the then-CEO Rover Ailes. Although Ailes stepped down, she went out the door right behind him. And she can’t tell her story because an NDA legally prevents it.

#MeToo supporters are trying to target laws that allow this kind of backwards behavior.

A new California bill is being sponsored by Senator Connie Leyva (D-Chino). SB 820 would ban NDAs that prevent victims from telling their stories publically. The bill has already gone through the State Assembly’s judiciary committee in July, but it still requires support from the state Senate and a signature from California Governor Newsom before being put into law. 

According to Los Angeles attorney Jeffrey W. Cowan, NDAs that prevent publically acknowledgement of sexually motivated crimes are “a blight on the legal system.” He expects the new bill to “go a long way toward ensuring that trials and discrimination claims are an effective search for truth, and that there is accountability for victims of unlawful discrimination in the workplace.”

The only thing that would still be confidential in cases like the aforementioned? Settlement amounts.

But not everyone agrees with the law’s potential for protecting the victims. A letter penned by the California Chamber of Commerce reads: “SB 820 will drive employers to fight these cases in court instead of resulting in an early resolution.”

But it’s hard to see the merits in that. Companies generally try to avoid public scrutiny, and that means settling cases instead of bringing them to court — even when certain details have already been made public.

Michael Morrison, an attorney for one victim, said: “In terms of sexual harassment, nothing has been more devastating to getting information out about harassers than arbitration clauses.”

A separate measure written by the California Assembly would ban arbitration clauses in employment contracts. These clauses force employees to hand away their legal right to sue an employer for any reason. Instead, employees and employers must use arbitration to settle differences. These, too, are often bound by non-disclosure agreements.

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What Do California’s New Employment Laws Mean For Workers?

The new employment laws will reclassify about a million independent contractors as employees. You may have heard a reference to the fight for employment for those who work for the ridesharing giant, Uber. The reclassification will allow the workers the right to join a union, which will in turn give them more sway when it comes to bargaining with Uber for better pay and benefits. Right now, Uber drivers don’t expect much.

But there are two sides to the story.

A lot of Uber drivers like their job — they feel the pay is decent if you put in the hours, and better yet, you’re the one who decides exactly what those hours are. The job is a flexible one, and it gives those who are contracted the option of working or not working depending on how they feel or how much money they’ve already made for the week. 

And here’s the thing — while unions might do great work for some employees, not everyone feels that way. Take grocery store workers, for example. How would you feel if you were forced to join a union and pay the establishment a small chunk of each paycheck, only to barely make minimum wage? The point of a union is for increased bargaining power — for better pay and benefits, in other words — and without that, what’s the point? It’s almost like you’re paying a greedy corporation to protect you from a…greedy corporation — but they don’t do the job.

Worker status will be determined by an “ABC” test, which asks three questions: is a worker bound by employer rules? Is the work done somehow different from the employer’s normally established business? Last, is the worker established in the relevant trade?

The second question is where the arguments begin to arise: it seems obvious that Uber’s primary business practices involve, well, drivers driving. But according to the rideshare company, ridesharing is actually not its primary business. If that sounds absurd, the new law’s writers agree with you.

Assemblywoman Lorena Gonzalex (Democrat-San Diego), who helped write the new law, was primarily concerned with how workers may or may not have been taken advantage of by ridesharing companies like Uber and Lyft. But other professionals will see their job status change as well.

Labor lawyer Brad Shafer said, “A problem with AB 5 is some people got exemptions because they had political juice and other people didn’t. This is a legal standard that forces people who want to be independent contractors to be classified as employees. Take any performer who comes on stage at Staples Center. That entertainer would arguably be an employee of Staples Center. The performer is providing entertainment, and that is the business of Staples Center.”

Basically, the law is causing quite a few problems, and it might be a while before any of them really get worked out.

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Is Your Employer Required To Provide A Bathroom On Site?

It might seem like a silly question to ask — because really, how many of us run into this problem? — but believe it or not, employers have been routinely brought to court for not providing their employees with a sanitary environment in which to go to the bathroom. Two industries in particular have experienced new legislation to ensure employers are doing their part. Which industries are those? Foundries and tobacco plantations. 

The most surprising element of the legislation is where bathrooms are not required: literally anywhere else. Thankfully, most employers like to use the bathroom themselves, so it hasn’t become a huge problem.

What do the laws say?

According to Connecticut General Statute Section 31-36:

“The commissioner shall have authority by order to that effect to require the proprietor of any foundry in which ten or more persons are employed, situated in a locality where there is such a system for the disposal of sewage as to make such order practicable, to provide for the use of such employees a toilet room of such suitable dimensions as said commissioner determines, containing washbowls or sinks connected with running water, with facilities for heating the same, such room to be directly connected with such foundry building, properly heated, ventilated and protected from the dust of such foundry.”

The ridiculously worded statute goes on to guarantee that a person or company found in violation of this new law will be fined — get this — no more than $50.


And then there’s Connecticut General Statute Section 31-38, on tobacco plantations:

“Any person, firm or corporation employing twenty-five or more laborers on a tobacco plantation, which fails to provide adequate toilet accommodations for such employees, so arranged as to secure reasonable privacy for both sexes of such employees, shall be fined not less than twenty dollars nor more than one hundred dollars.”

You read that correctly! If you’re one of the many, many rich owners of a tobacco plantation, violating this law will only set you back a measly $100. In other words, you could simply disobey the law if you wanted to, because it’s not like it’ll break the bank!

Then again, these are Connecticut laws, and the number of plantations in the state hasn’t exactly exploded over the years. Few of those that remain employ more than 25 people. 

The laws used to regulate other activities, but have been reevaluated and revised over time. For the record, a “ foundry” refers to any place of business where metal is cast. Maybe these laws were drafted because it’s hot in foundries or on plantations? Who knows.

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