Boston Employment Lawyer Blog

June 15, 2017

I’ve Been Fired but My Employer Owes Me My Commission Payments – What Are My Rights?

If you were terminated from your job but you are owed commission payments, what are your rights? And what are the employer’s rights? There are specific requirements for receiving your last paycheck following termination, but are commission payments included in that check? Read on for more information about commission payments and the variables that may affect how, or if, they’re paid out following employment termination.

Commission payments usually follow a certain schedule. For example, if you sell 50 widgets to Company A, you will likely provide a time frame within which Company A has to pay for their widgets. Maybe it’s 15 days, maybe 30, maybe 60. Payment is rarely received when the sale is negotiated. Let’s say Company A has 30 days to pay for their widgets, but they find cheaper widgets somewhere else and cancel their order with you. If you had already received a commission payment on those widgets, this could present a serious problem. For this reason, commissions are rarely paid to employees until full payment has been received.

Factors Affecting Commission Payments

Whether or not you are owed a commission payment after termination is dependent on several factors. These include:

Terms within your contract
Your level of involvement in generating the sale
Circumstances of the sale and your termination

Unless there is an agreement to the contrary, if the commission was earned prior to the date of the termination, the employer will likely be obligated to pay. If, however, the commission was not earned by the date of the termination, but the sales process has been initiated, the policy will be dictated by past practices. It is important to keep in mind, however, that the waters can get a bit muddy if the employee was fired for cause. That doesn’t mean that no commissions can be paid…it just makes things more complicated.

The Contract

If compensation is entirely or partially commission based, there should exist a clear commission schedule between the employee and employer. This payment schedule should include information about when commissions are paid on a closed sale, the impact of renegotiated or canceled sales, and guidelines for handling commission payments following termination. By reviewing this contract, a MA employment law attorney can help you determine if, how much, and when commissions should be paid. If you are still employed and you do not have a contract with clear commission policies, you should request one to avoid serious headaches in the future.

Save Emails

If you have exchanged emails with your supervisor, human resources, or anyone within your company prior to your termination, save these emails. Just as they say “one man’s trash is another man’s treasure,” what seems to you like an insignificant email could be a gold mine. Don’t delete. A Boston employment law attorney can help you determine how to proceed if you’re owed commission payments following a termination. Continue reading

June 8, 2017

The Alleged Toxic Atmosphere of the Uber Workplace

by Altman & Altman

In a particularly challenging year for Uber, the company behind the driver-for-hire app has terminated over 20 employees in an effort to deal with accusations of sexual harassment and other issues. On Tuesday, Uber made an internal announcement to its 12,000 employees about the decision, following a long list of complaints from former employees.

215 Workplace Incidents

According to reports, a total of 215 claims of workplace incidents have been filed against Uber. The breakdown of these complaints, in order of frequency, is as follows:

Discrimination
Sexual harassment
Unprofessional behavior
Bullying
Other types of harassment
Retaliation
Physical security
Wrongful termination

An internal investigation into these claims is currently underway. Since the investigation began, Uber has fired 20 employees, and another seven have received a final warning. According to the ride-hailing tech giant, 57 claims are still under review and no action is being taken in 100 of the claims. A Boston employment law attorney can help you determine how to move forward if you’ve been a victim of workplace sexual harassment.

Blogging about Harassment

Most of the complaints originated in the company’s San Francisco headquarters, but complaints have come from Uber locations across the globe. Following former employee Susan Fowler’s claims on her blog that she experienced gender bias and sexual harassment while working for Uber, the company’s CEO, Travis Kalanick, launched the internal investigation.

The news of the firings is just the most recent in a string of scandals that have been plaguing Uber for months. Earlier this year, the company’s senior vice president of engineering was asked to resign when Uber discovered that he hadn’t disclosed past allegations of sexual harassment. Ed Baker, another Uber exec, left the company abruptly under unknown circumstances in March.

Technology Theft and Bad Business Practices

And that’s not all. Google’s self-driving car company, Waymo, has brought a lawsuit against Uber, accusing the company of stealing its technology. As a result, Anthony Levandowski, an Uber engineer who had previously worked for Google, was fired last month. Beyond the lawsuits and allegations of workplace misconduct, Uber is also battling an image of bad business practices, such as the use of a tool designed for the purpose of evading regulators.

Is Uber in Denial?

“(Fowler’s) blog shocked me,” said Liane Hornsey, the head of Uber’s HR. “But, what did surprise me, was when I did the listening sessions, this didn’t come up as an issue. It wasn’t one of our big themes. Other things came up that are in that area, that our values are masculine and a little aggressive, but the harassment issue, I just didn’t find that at all.” A MA employment law attorney can help you recover damages if you’ve been harassed in the workplace.

Sexual Harassment in the Workplace

Uber is far from the only company with sexual harassment issues. This type of inappropriate workplace behavior is actually quite common. A study of 500 respondents and 92 U.S. companies produced the following results:

Approximately 54 percent (272) of respondents had been the victim of some type of workplace sexual harassment.
Of those, 27 percent had experienced harassment by a colleague, and 17 percent were harassed by a
Women made up the majority of harassment victims at 79 percent.
Of those harassed, 12 percent claim to have received threats of termination if they refused the advances and requests of their harassers.

June 7, 2017

The Rights of a Whistleblower

by Altman & Altman

If you are a public employee, and you believe that your employer may have broken the law, or is otherwise in violation of a rule or regulation, that puts the public health or safety at risk, you should feel comfortable reporting it without fear of any backlash from your employer (from a legal standpoint, at least). According to Massachusetts law, these “whistleblowing” actions should always keep the employee who is reporting the violation protected from termination, suspension, demotion, and any adverse employment action being taken by the employer in response.

In addition to protection from their state government, whistleblowers are protected through the federal government, which has several safeguards in place to ensure that a whistleblower’s future at the company is not at risk, despite reporting an employer’s violation of the law. The United States Department of Labor, through the Occupational Safety and Health Administration (OSHA), has what is known as “The Whistleblower Protection Program”. This is designed to operate as a guide for anyone engaging or considering engaging in whistleblowing activity to know how to do everything from start to finish. This includes the initial step of actually filing the complaint (or understanding what constitutes a legitimate complaint in the first place), to understanding how their complaint may affect their employment status. The program provides a more detailed and specific list of what actually constitutes “adverse action” against a whistleblower.

If you report an employer’s violation, or are considering doing so, keep an eye out for any of the following actions, which, according to the government, are illegal to take against a whistleblower:

June 6, 2017

Have You Been Wrongfully Terminated in Massachusetts? We Can Help

by Altman & Altman

If you have been let go from your job recently, but don’t seem to know exactly why, or the explanation you were given doesn’t seem to match your experience at work, it is possible that you have been wrongfully terminated and can bring a claim against your former employer. The following is more information on the laws in Massachusetts regarding wrongful termination as a guide for what to look for in evaluating whether or not you may have a valid claim.

In Massachusetts, employees are considered “at-will”, meaning that both the employee and the employer can terminate employment at any time. While sometimes it is beneficial for the employee in being able to resign and seek employment elsewhere at any time, the sometime unfortunate flip-side to that is that an employee can also be fired or let go at any time as well, and for the most part the employer is not technically obligated to provide a reason for doing so.

The good news is that “for the most part” means that there are exceptions to this rule. There are some instances in which firing an at-will employee can be grounds for a wrongful termination suit. One of the most common ways this can happen is if an employee is fired based on some form of discrimination.

In Massachusetts, the law states that an employer is barred from discriminating against an employee based on “race, color, national origin, ancestry, sex, religion, age, mental or physical disability, genetic information, sexual orientation, gender identity, and activity military status.” If you feel like your termination was based on one of these factors, it is important to report it as quickly as possible so that an investigation can be conducted.

Sometimes, however, it is not always as clear-cut as the above list of factors. Discrimination can be a little more subtle as well, in that in may be based on believing that these factors came into play at some point during your employment at the company, even if the actions didn’t necessarily lead to termination. For example, there is often a case where one employee is not promoted for a position which they were qualified for, “promised” (in a sense), or otherwise felt was deserved. Sometimes, this can coincide with one of the above factors (for instance, maybe an employee believes that because their employer recently found out about their sexual orientation, they chose not to give the employee a promotion because of it). If the employee then goes to file a complaint asserting this belief, and the employer finds out about it, it is illegal for the employer to then use the fact that the employee complained against him as grounds for termination. If this happens, even if the employer did not initially discriminate against the employee for the promotion, the fact that the employer then terminated the employee for filing a complaint for asserting a right (not to be discriminated against for sexual orientation), could be grounds for a wrongful termination suit. Therefore, it is imperative to keep track of actions, statements, and general conduct being displayed by the employer regarding any termination. Even if the employee is at-will, this fact alone is not grounds for an employee to always be fired for no reason whatsoever if the motive behind the termination is discriminatory in nature Continue reading

June 5, 2017

Sexual Harassment in the Massachusetts Workplace – What Can You Do?

by Altman & Altman

Although it is becoming increasingly more vital to attempt to crack down on the amount and frequency of sexual harassment occurring in the workplace, it is equally as important to learn how to recognize the signs and elements of sexual harassment from a legal standpoint, in order to more effectively address these concerns, as well as to know what your rights are. Legally, there are two ways that one can be harassed while at work: through “quid pro quo” and “hostile work environment” harassment.

According to Massachusetts General Law Ch. 151B, “quid pro quo” harassment is defined as:

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decision.

June 5, 2017

Uber Fights MA Proposal to Prevent Drivers from Working More than 16 Hours Per Day

by Altman & Altman

Has Uber not heard about the dangers of fatigued driving? According to the National Highway Traffic Safety Administration (NHTSA), at least 100,000 annual motor vehicle accidents are likely caused by a fatigued driver. Yet, the company behind the driver-for-hire app is vehemently against the 70 hour workweek limit for its drivers. Could it have anything to do with the launch of its new accident insurance policy?

Yes, you read that correctly – Uber wants drivers to be permitted to work more than 16 hours in a single day, and it wants to further profit by insuring those drivers against accidents that are sure to occur as a result. The insurance plan is being tested in eight states; Massachusetts is among them. In exchange for coverage in work-related accidents, drivers will pay a per-mile fee to Uber.

No Workers’ Compensation?

The question isn’t whether or not Uber drivers should protect themselves with insurance; taxi-related jobs have five times the death rate as other occupations. The issue is with Uber’s decision to charge drivers for medical care and lost wages rather than purchase workers’ compensation insurance to cover all drivers. In addition, the benefits that will be provided by Uber’s accident policy will be less robust than those provided by traditional workers’ comp. According to press reports, the plan will cover up to half of the individual’s average weekly earnings, compared to workers’ comp benefits which cover up to 66 percent of lost wages.

Employees in other companies and industries get overtime pay, which acts as a deterrent to employers to overwork their staff. In addition, those workers are generally covered by workers’ comp. It is true that Uber’s drivers are independent contractors, not employees. However, state agencies in Alaska, California and Oregon have audited Uber, collected payroll taxes, and demanded real protections for the company’s drivers. A MA workers’ compensation attorney can help you determine if you are entitled to workers’ comp benefits.

Driver Fatigue

The NHTSA conservatively estimates that fatigue results in about 1,550 deaths, 71,000 injuries, and $12.5 billion in financial losses every year. The statistics below provide further insight into this serious problem.

Individuals between the ages of 18 and 29 are most likely to drive while drowsy.
Men are more likely to drive while drowsy than their female counterparts.
Adults with young children have a greater tendency to drive drowsy.
The AAA Foundation for Traffic Safety released a study revealing that individuals who get six to seven hours of sleep per night have double the risk of a fatigue-related crash than those who sleep eight hours or more.
A study in Australia revealed that a person who has been awake for 18 hours will have a level of impairment equal to someone with a blood alcohol concentration (BAC) of .05.

Other factors, including obesity, smoking, alcohol consumption and conditions such as sleep apnea weigh heavily when calculating the risk of driver fatigue. However, one thing is certain; driving for more than 16 hours in one day is unsafe. Consider asking your Uber driver how many hours he or she has been working the next time you go for a ride. And if you work for Uber and were injured on the job, a skilled Boston work injury lawyer can help you determine how to proceed. Continue reading

May 24, 2017

Whistleblower alleges patients being turned into profits

by Altman & Altman

A former high-ranking employee of UnitedHealth Group Inc., a healthcare company based out of Minnesota, has gone public with a whistleblowing case against his former employer, alleging that they purposefully and knowingly gamed the country’s chaotic healthcare system in order to get more money from the federal government.

The situation is an incredibly tangled web of different organizations, government agencies and winding policy, but the crux of the matter is as such:

Healthcare insurance providers, such as UnitedHealth Group, are given money through the federal government’s Centers for Medicare and Medicaid Services (C.M.S.)
Insurance providers use this money to pay doctors, who bill the insurance companies for services rendered to their patients
Insurers get paid more money by the government if they enroll people with worse health complications, an incentive to prevent sick people from being systematically denied coverage
This system is known as “Medicare Advantage,” and was implemented by the federal government in the hopes that it would result in better care at a lower cost and help cover a $13 trillion funding gap for Medicare.
However the whistleblower, Benjamin Poehling, alleges that insurance companies have been intentionally misreporting patient charts as a way to milk more money from the government, which is going directly into pockets and not helping patients in any way.

The lawsuit, filed under the False Claims Act, alleges that UnitedHealth Group would take patients with health complications such as diabetes and then explore every possible other condition they could have suffered as a result in order to boost that patient’s profitability to the company.

At the same time, the insurance provider would ignore possible complications such as high blood pressure, as these diagnoses did not carry a profitable incentive from the C.M.S. In short, the lawsuit alleges that UnitedHealth Group treated its patients as nothing more than a part of their profit margin, rather than treating them as human beings in need of care.

One particular email that was obtained in the lawsuit, as was reported by the New York Times, shows a disgusting, almost salesman-like attitude coming from a chief financial officer within UnitedHealth Group.

“You mentioned vasculatory disease opportunities, screening opportunities, etc., with huge $ opportunities,” the chief financial officer of Poehling’s division wrote. “Let’s turn on the gas!” Continue reading

May 15, 2017

Railroad Company Ordered to Pay $260,000 in Whistleblower Retaliation Case

by Altman & Altman

In 2011, a railroad worker filed a complaint against Pan Am Railways, Inc., claiming he was subjected to retaliation after filing a Federal Railroad Safety Act (FRSA) whistleblower complaint. The Occupational Safety and Health Administration (OSHA) investigated the complaint against the North Billerica-based railroad and decided in favor of the employee. A federal appeals court has agreed, ordering the railway company to pay $260,000 in compensatory and punitive damages.

The employee, who worked in a Waterville, Maine rail yard, was accused by his employer of dishonesty in connection to an injury-related whistleblower complaint. For their retaliatory actions, Pan Am Railways, Inc. was ordered to compensate the employee to the tune of $10,000, pay $40,000 in punitive damages, and take corrective actions so that a similar incident doesn’t occur in the future. The railway company appealed.

Appeals Denied, Punitive Damages Skyrocket

May 12, 2017

Unequal Pay in the Massachusetts Workplace

by Altman & Altman

Here’s the thing, unequal pay in the workplace isn’t just unfair, it’s illegal. It seems like simple logic that when a woman performs the same job as a man, she should receive the same pay. But that’s rarely the case. We are certainly in a better place than we were 50, 20, or even five years ago…but we have a long way to go until equal pay is a reality for every American worker.

Equal Pay Act and Title VII

The Equal Pay Act (EPA) holds that men and women should receive equal pay if they complete equal work in the same workplace. This applies to all forms of pay, including salaries, benefits, stock options, and vacation pay. If a worker believes that her EPA rights have been violated, she must file an EPA charge within two to three years of the alleged violation, depending on the underlying circumstances. A Boston employment law attorney can help you determine if your EPA rights have been violated. Title VII of the Civil Rights Act of 1964 also makes sex-based discrimination for pay and benefits illegal. Thus, someone whose rights have been violated may have an EPA claim and a Title VII claim.

Pay Inequality Statistics

It is an unfortunate fact that American women continue to earn substantially less than their male counterparts. The statistics below illustrate just how deep this problem runs.

Women who work full time earn about 84.6 percent of what full-time male workers earn.
For African American women, it’s even worse; they earn approximately 72 cents for every dollar earned by male workers.
Latina workers suffer the most, earning 60 cents for every dollar earned by men.
Unequal pay is even an issue in female-dominated industries, such as childcare and housekeeping. In these industries, women earn approximately 95 percent of what their male counterparts earn.

Further, women must often work longer to get promoted. The following statement was taken from UrbanMinistry.org, “”women may work longer to receive the promotions that provide access to higher pay. For example, among school principals, women have an average of 3 years longer as teachers than men do.”

If you feel that your EPA or Title VII rights are being violated, it’s important to create a paper trail. Document as much as you legally can; this can include copies of published job descriptions, length of employment, and pay data. A MA employment law attorney can analyze your case to help you determine if your rights have been violated, and advise you on how to collect evidence of these violations.

Pay Secrecy is Illegal

The reality is, if the stigma of discussing pay disappeared, unequal pay would probably disappear along with it. Many companies have policies about not discussing pay, but these policies are also illegal. So-called “pay secrecy policies” have been prohibited for about 80 years, but in 2014, President Obama signed an executive order to provide further protections for employees who openly discuss their salaries. “Pay secrecy fosters discrimination and we should not tolerate it,” said Obama, “not in federal contracting or anywhere else.” Continue reading

April 25, 2017

Are You a Victim of Workplace Assault?

by Altman & Altman

To understand workplace assault we must first understand what assault actually means. Many people incorrectly assume that assault requires physical violence. In fact, even a verbal threat can be assault; it’s the intent that matters. For example, if a supervisor threatens an employee’s life if the employee doesn’t complete a project by Friday, the supervisor may be guilty of assault. However, if the supervisor and employee are buddies, and the “threat” was an obvious joke, it wouldn’t be considered assault.

Generally speaking, assault occurs when a person intentionally harms or threatens to harm another person. Simple assault doesn’t require physical injury, and aggravated assault typically involves a deadly weapon or serious physical injury. Assault crimes usually conjure images of bar fights or domestic disputes, but workplace assaults are actually quite common. Work environments can become tense due to confined spaces and close groupings of people who are required to see each other regularly, sometimes every day. Personality conflicts and power struggles may escalate in this environment, erupting into workplace violence with little to no warning.

Some incidences of workplace assault are serious, even fatal. We’ve all seen mass media coverage of disgruntled workers who “shoot up” the office, killing everyone from the supervisor who disciplined them to the secretary and mail-room clerk who just happened to be in the wrong place at the wrong time. Other cases of workplace assault are much less serious. A Boston personal injury lawyer can help if you’ve been a victim of assault in the workplace.

When is the Employer Liable?

In addition to the supervisor or employee who is accused of assault, the employer can also be liable for the victim’s injuries under certain circumstances, including:

If employer negligence contributed to the incident.
If the employer intentionally played a role in the assault.
If the employer is not covered by workers’ compensation.

The first of the above bullet points addresses how employers respond to hostile work environments. If an employer knows about, or should have known about, threatening behavior and fails to take action, it may be liable if the person responsible for the behavior harms a co-worker. This may even be true if the person in question is a non-employee, such as a vendor or contractor.

When is Only the Employee Liable?

On the other hand, an employee who assaults a co-worker will likely be exclusively liable if:

The employer was unaware of the employee’s conduct.
The conduct was not related to the accused’s job.
The conduct was not encouraged or tolerated by the employer.

Workplace assault can result in criminal penalties, but it can also result in a civil action, such as when the victim brings an injury claim to recover financial damages for medical expenses, pain and suffering, and lost wages. A MA injury lawyer can help you determine how to obtain compensation for medical expenses, pain and suffering, lost wages, and other associated costs if you’ve been harmed in a workplace assault . Continue reading