Understanding options after a job elimination

Q: I have a question and was wondering if someone can help me in answering it.  I was recently told that my position was being eliminated at one of the big four accounting firms.  I was told that they are going to look in another city in the country to staff my position out of.  I was not offered to relocate or to apply for this position but asked to help train my replacement.

I am an employee at will and not sure if this is legal or not, could someone help me in understanding my options?

A: It sounds like you are in an unfortunate situation.  First, I have to make the assumption that you work in Massachusetts.  Employment laws differ between states, and there are significant differences between states with respect to employment at will.

Most employees within the US, and in Massachusetts, are employees at will.  Employees working in an at-will arrangement, do not have an employment contract.  An at-will employment arrangement gives both the employer and the employee the ability to end the employment relationship at any time. In your situation, since you are an at-will employee, your employer can terminate your employment at time.  However, your employer still needs to be careful of other employment laws.

If you are at-will, your employer does not have to find you another role in the US.  They also do not have to offer you relocation.  However, that does not mean you cannot ask about open positions elsewhere and if they would offer any type of relocation assistance.  Although not legally required, I would also ask about severance if you do not remain employed with your company.

Employers still need to exercise caution when terminating employees.  If an employee participated in a protected activity like whistle blowing, and then was terminated, this termination could certainly face legal challenges.  Terminations should also be reviewed to ensure that the termination is not based on an employee’s membership in a protected class (e.g., age, race, color, etc.).  Also, a termination could face legal challenges if the employee was on a job-protected leave or the employee participated in an investigation of a discrimination complaint.

Employees are terminated for a variety of legal business reasons, including a company’s financial performance,  moving a company’s operations, outsourcing a function, or a change in business strategy.  However, a careful analysis should be performed in advance of a employee termination.

For more information about Massachusetts laws and employee terminations, visit http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/termination.html

You may contact an employment attorney to review the specific facts around your termination.  One resource that may be helpful is the Massachusetts Bar Association’s Lawyer Referral Services (www.masslawhelp.org).

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

New business owner has questions on sick time law

Q: I just started my own business.  I have never owned a small business before.  Some of my employees seem to know more about these laws than I do.  Can you fill me in on this Mass. sick time law that they all seem to be chattering about?

A: In November of 2014, Massachusetts voters passed a ballot question which now requires Massachusetts employers to provide earned sick time to many of their employees.  Some of our clients thought this law was part of the Affordable Care Act (ACA) or “Obamacare,” but it is not.  It is a state law, which only applies to employees whose primary place of employment is in the state of Massachusetts.

The law went into effect on July 1, 2015.  Employers with fewer than 11 employees must offer up to 40 hours of unpaid sick time to employees in a calendar year.  Employers with 11 or more employees must offer up to 40 hours of paid sick time to employees in a calendar year.

Calculating the number of employees an employer has can be tricky though.  According to the law, the employer has to look at the average number of employees the company has maintained on the payroll during the preceding year.  However, full-timers, part-timers, seasonal and temporary employees must all be included in that calculation, which surprises some employers.  Employees furnished by a staffing agency must be counted by both the staffing agency and the employer for the purposes of determining the size of the company for this calculation.

The law also defines when sick time can be used under the law:

1. care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
2. care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
3. attend a routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse;
4. address the psychological, physical or legal effects of domestic violence; or
5. travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.

For more information, including the required workplace poster, visit www.mass.gov/ago/earnedsicktime.  The poster provides a quick overview that could be very helpful to both you and your employees.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section. 

FMLA and remote employees

Q: I have worked for a Boston-based company for several years. I live in western Mass and have lived here for over 10 years. I never considered it a big deal. However, now I am applying for a Family and Medical Leave Act (FMLA) leave, which I desperately need. My HR Manager is saying that I am not eligible because I work more than 75 miles away from our main office in Boston and my work site has fewer than 50 employees. I work from a home office. I don’t get it. I never thought I would be stripped of benefits just because I work at home.

A: Let’s review the Family and Medical Leave Act (FMLA). Most employers, with over 50 employees, are required to offer FMLA to eligible employees. What makes an employee eligible?

– An employee has to have worked for 12 months for that employer,

– An employee has to have worked 1250 hours in the previous 12 months before the leave begins, and

– An employee has to work at a site with at least 50 other employees, within 75 miles.

Your HR Manager may be getting stuck on the third requirement. More and more of us are working remotely. Well, thankfully, the FMLA has shared some guidance on this third requirement as it relates to employees working from a home office. An employee’s personal residence is not a worksite. For employees who work at home, their worksite is the office to which they report and from which assignments are made. [29 CFR 825.111(a)(2)] In short, this means you should consider the Boston office your worksite for FMLA purposes, assuming you report into that office and receive work from the office.  If the Boston office has fewer than 50 employees, you may still be out of luck.  If they have 50 or more employees, you have a strong argument.

Share this information with your HR Manager. It may be a detail of the law which is unfamiliar to your HR Manager. Thankfully there is guidance available.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

A termination at 5pm on a Friday?

From the Job Doc blog - Aug 22, 2011.