Employment Law for Small Businesses: Confusing, yet incomprehensible.

Tuesday, November 16, 2010

Ask any small business owner about the biggest challenges they face on a daily basis, and most will have something to say about employment laws.  It’s not that they don’t want to comply with their legal obligations, they say; it’s that there are so MANY laws with which to comply, and it’s just confusing, time-consuming, and expensive to follow all these laws, so it’s just easier to ignore the laws and hope nobody complains.

Fortunately, the government recognizes that many employment laws are difficult for small businesses, so many of the more burdensome laws specifically exempt small businesses by stating the law only applies to businesses with more than a certain number of employees.  Unfortunately, Congress is involved, so every law specifies a different threshold for business size.

Some provisions of the Americans with Disabilities Act applies to employers with 15 or more employees, as do some provisions of the Civil Rights Act of 1964.  The Age Discrimination in Employment Act generally applies to employers with 20 or more employees, as does the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); the Family and Medical Leave Act (“FMLA”), 50 or more employees.

Throw in state law, and things get even more confusing.  Maternity leave would be covered under the FMLA, with its 50-employee threshold; but it’s also addressed by the Massachusetts Maternity Leave Law, which applies to companies with at least six employees.  And the Massachusetts Health Care Reform Law employer mandate applies to companies with at least 11 employees.

Taking the Ostrich approach of ignoring the laws, and hoping they go away, isn’t a very good idea.  As your company grows, sit down with your lawyer and make sure you really understand which employment laws apply to your company–and which don’t.  Because, as expensive as it can be to follow these laws–it’s much more expensive to get caught violating them.

Filed in Discrimination, Employment, Health Insurance, The Government | | Comments (0)

Tech Tools for Small Businesses

Monday, November 15, 2010

This article has nothing to do with the law, but rather describes five free technology tools for small businesses.  I’m linking to it because I’m very much an evangelist for two of the products it mentions, DropBox and Microsoft Security Essentials–and because generally, I’ve found open-source and free software to be perfectly adequate for many users.

DropBox is the best off-site data backup solution I’ve used, mostly due to its real-time ability to sync all your data across all your devices (useful for me because I regularly use four different computers); and I’ve found Security Essentials to be a bit more invisible, and less of a drag on the computer, than some of the commercially-available software packages (plus, the price can’t be beat!)

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“What Did I Just Sign?”–Notice Provisions

Tuesday, April 6, 2010

I recently reviewed a contract for a client that had the following Notices provision (a provision which specifies how one party should provide notice to the other party under the contract):

Any notice or communication hereunder must be in writing, and shall be personally delivered, or sent bytelegram, telex or facsimile, or by registered or certified mail, return receipt requested, and if given by registered or certified mail, same shall be deemed to have been given and received three days after its mailing, postage prepaid to the address listed below. Such notices or communication shall be given to the parties hereto at the following addresses…  [emphasis added]

Now, notice provisions like this one are standard boilerplate; when drafting a contract, attorneys just cut and paste them from every other contract they’ve drafted.  I know, I’ve done it myself–why re-invent the wheel?  But this particular notice provision shows how important it is to actually READ the boilerplate provisions you’re using.  Even though it may be “just boilerplate”, the language forms a part of the contract, and either party may rely upon it.  So read the boilerplate, and if it doesn’t capture what you want–or if it’s outdated or obsolete–then change it!

Or else the Western Union or Pony Express guy may be showing up on the doorstep with a Notice to Cure Breach, or a Notice of Renewal, etc.  Or, such notices may be arriving by Telex.  Now, I’ll admit I’ve seen enough Westerns to know what a telegram is, but I have no idea what a “Telex” is.

I’ll be right back–

OK, I Googled it.  According to Wikipedia:

By 1935, message routing was the last great barrier to full automation. Large telegraphy providers began to develop systems that used telephone-like rotary dialing to connect teletypes. These machines were called “Telex”. Telex machines first performed rotary-telephone-style pulse dialing for circuit switching, and then sent data by Baudot code. This “type A” Telex routing functionally automated message routing.

Now, I haven’t been in your office recently, but I would bet money that you do NOT have a Telex machine plugged in over there in the corner.  So read the notice provisions, and if they contain any communication methods that don’t exist in your office–delete them, so you don’t end up in court one day arguing over whether proper notice was received, as the other party is swearing they Telex’ed you.

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Health Insurance Price Controls in MA?

Wednesday, March 3, 2010

The Massachusetts Insurance Commissioner will be taking a more active role in controlling the cost to small businesses of providing health insurance to their employees.

Insurance companies will be required to provide the Commissioner advance notice of rate increases, and the Commissioner will reject increases which are “unreasonable or excessive.”

Just another skirmish in the never-ending war against skyrocketing health insurance premiums.

Filed in Employment, Insurance | | Comments (0)

“Light Duty” Policies and Pregnancy… Watch your step!

Tuesday, March 2, 2010

It’s fairly common for companies to have formal policies to accommodate injured workers who, temporarily, cannot perform physically demanding job requirements; generally, these workers can be assigned to light duty until such time as they receive medical clearance to resume their regular duties.  In 2006, when Angie Welfare worked as a Fleet Services Clerk for American Airlines’ Cargo Division at JFK Airport, the airline had such a policy.

Ms. Welfare was a fifteen-year employee of the airline; then she got pregnant.  Her physician advised her against lifting more than ten pounds, but otherwise considered her able to work.  American Airlines, however, told her the light duty policy did not cover pregnancy, and Ms. Welfare was sent home without pay.

Ms. Welfare filed a complaint with the Equal Employment Opportunity Commission, which recently issued a Determination that American Airlines discriminated against Ms. Welfare by treating women with pregnancy-related restrictions differently from employees with non-pregnancy-related job restrictions.

Two things that stand out in this story–

First, Ms. Welfare filed her complaint in 2006, and didn’t receive a determination until February 2010; and such a determination actually doesn’t provide any relief to Ms. Welfare.  If she and the airline are unable to come to a resolution (with the assistance of the EEOC), Ms. Welfare can file a suit in federal court, where the EEOC’s determination may or may not be taken into consideration.  Needless to say, a federal suit adds considerable time and expense for both parties.  A reminder that it can take a very, very long time, and a very, very large amount of money, for these issues to get resolved.

Second, when Ms. Welfare’s baby was born, American Airlines sent her a congratulatory fruit basket.

Filed in Discrimination, Employment | | Comments (0)