Webinar: What Your Employees’ Attorneys Know (That You Don’t)

Jeff Plakans | Founder & President, CommPayHR

Jeff Plakans founded CommPayHR in 2006, for a better, holistic solution for SMB payroll and HR. He is passionate about improving employment practices and compliance to create the best business environment.

Chris Waterman | Waterman Employment Law Group

Chris Waterman is a Massachusetts employment litigator representing workers across industries, from entry-level to executive. He’s been named a Super Lawyer from 2022-2024 and sits on the Massachusetts Bar Association’s Executive Board for Labor and Employment.

Sara Kula | Kula Law P.C.

Sara Kula has practiced employment law exclusively since 2003, with experience at Littler Mendelson and as in-house counsel for an 8,000-employee company. She now helps businesses build compliant policies and resolve workplace disputes efficiently.

Jeff Plakans:
Good lunchtime, everybody, or if you’re some of our folks that are on the West Coast, good morning. Thanks for joining us today for our session on what your employees’ attorneys know that you do not. We’re joined today by Sara Kula and Chris Waterman. Guys, thanks for being here.

Chris Waterman:
Thanks, Jeff.

Jeff Plakans:
And today’s focus is going to be all about making sure that we get a good sense for the ways you can avoid meeting Chris and meeting Sara perhaps in court perhaps over an employee. Now, we’ve got a number of things. Let me start with some housekeeping. We are recording this call. If you’re registered for the session and you’re looking for the recording, that will be sent out to you afterward as well as the slides. We will be doing some Q&A at the end of the session. So if you’ve got questions, there’s a section in the top bar of the GoTo Meeting set up to submit questions to us. We’ll be watching for them, but we’ll answer them towards the end of the session. And other than that, let’s take a quick learn for what we’re going to get into and hear from our folks today. So Chris, do me a favor if you can, and introduce yourself to our viewers today.

Chris Waterman:
Will do. Thanks, Jeff. Nice to meet you everyone. Yeah, Chris Waterman. I am the founder and partner at Waterman Employment Law Group. I set my firm up about three and a half years ago after practicing with large firms for the past prior 25 years, focusing primarily on employment law.

Jeff Plakans:
Excellent. Well, thank you very much. Now, Sara, you’re an employment attorney and you’re a mediator as well. Can you help us a little more with what that means?

Sara Kula:
Sure. So I’m based in New York and I’m a solo employment attorney and I represent employees. I also help employers with compliance. But I also serve in a neutral capacity, including mediation. And in mediation, I’m trying to resolve disputes between employers and employees that have arisen. But really in all of my roles, I’m always trying to avoid and resolve disputes. And I sort of tell people I see employment law from all angles because I do all sides of it.

Jeff Plakans:
So in the sort of discussions that we had preparing everything for this meeting, guys, we talked about attorneys and having the experience of having repped employers and then having had the experience of representing employees. Why rep employees versus employers? Or have you done both?

Chris Waterman:
I myself have done both. I mean, especially in the first 25 years of my practice, I represented some Fortune 500 companies. And then the last five years, I started to transition into representing employees, largely because I like working closely with people and it’s a more personal connection. And at the end of the day, not to sound too corny, but you get a little more satisfaction when you help someone who’s been terminated recover a severance package that’s going to allow them to transition into their next job and be able to put food on the table and not panic over the next however long they can survive with what they’re paid.

Jeff Plakans:
Very interesting. Thank you. Sara?

Sara Kula:
I would echo that. I also, I represent both employers and employees. And even though there’s more burden on the employer to be the one who has to take action and be compliant, there is an imbalance of power. And representing an employee who may not have the same resources as the business, I can feel like I’m helping create more balance there.

Jeff Plakans:
Excellent. Well, thank you very much. I appreciate that. Appreciate your thoughts on that. So today’s session, the goal of the session is really about what’s going to happen or what can happen when everything goes wrong between the employer and the employee. And today’s aim is to try to figure out ways on how we can prevent that. So again, thank you for joining us today everybody, and we’ll cover a lot. Now, as to our agenda, we’re going to get into where legal exposure can start. We’re going to get to the nature of employers. We’re going to talk a bit about some of the more common claims that we see, things like misclassification and some of the state specific traps that are out there in an area where we have most of our clients, so that’s New York, Massachusetts, sort of the Northeast, why documentation can play such a big role in a case, what happens when you do nothing, and what to fix before it becomes a lawsuit. So let’s get started with the fundamental question. In your experience guys, where does the employee-employer relationship go wrong to result in one of you getting involved?

Sara Kula:
I’ll jump in. Sure, I mean, I think there are certainly just sort of compliance failures, failure to follow a policy, but I think more generally is that happy employees don’t call lawyers and it’s the employees who feel like they’ve been disrespected or mistreated that are most likely to pick up the phone. And that’s who I tend to get the calls from.

Chris Waterman:
Yeah, I would agree with that. Especially when an employee comes to the employer with a problem that may not even be of a legal matter, but when they’re dismissed or not identified as a potential issue, the employee can walk away feeling disgruntled and then that festers into more problems as it goes on. So it really is just when the employee feels that they’ve been treated unfairly, not necessarily even unlawfully, and we can get into that later.

Jeff Plakans:
So what are some of the pitfalls or the risks that you’ve seen when dealing with employers’ HR departments?

Chris Waterman:
Yeah, I would kind of feed off of what I just said, where someone comes to the HR department and says something where like, “Hey, my mother’s been sick. I’m really anxious about it. I don’t know what to do.” And rather than saying to that person, which you’re required to do in Massachusetts, “Well, there’s this act called the Paid Family Medical Leave Act. And why don’t you explore taking some time off to take care of your mother and then come back when you’re ready?” And the problem there is if you don’t tell that person about their rights under the PFML, you’ve already violated the PFML. So generally speaking, it’s ignoring requests from an employee that may cross over into where you’re legally required to take action and not knowing that you’re legally required to take action.

Sara Kula:
Yeah, I think the not knowing is the real problem. The pitfall is the lack of knowledge. Because most employers are not out there looking to mistreat their employees or violate the law, but the law is not always practical and it can be very employee friendly and employers who don’t know the law are likely to violate it.

Jeff Plakans:
So Sara, to that point, what role do you guys think a business owner or business operator could play to keep themselves out of trouble?

Sara Kula:
Yeah, I mean, they need to have the right resources in place. A business owner should not have to spend all their time thinking about HR because that’s not what their job should be, and they don’t need to know all the answers, but they need to be an issue spotter. They need to know when to ask the questions and seek support and they need to have that support available to them when they need it.

Jeff Plakans:
So thanks, Sara. That sort of leads us into this discussion of good employers and bad employers. So again, when we spoke in our setup, you mentioned how all employers are not necessarily equally guilty per se. So by either of your experience, what employers have you guys faced that you feel sorry for versus those where you’ve had an enjoyable time helping your client?

Chris Waterman:
Yeah, I’ll take the easy one there. As most of you know or hopefully know, recently in the last three or four years, the Massachusetts Wage Act, if you violate it, it’s a strict liability statute. So if you don’t pay the employee on the last day of their employment, then you are automatically liable to triple damages against them. And more recently, the case came out that stated that even if you are a day late, you don’t get just interest, you get all the entire troubling of those damages. And that’s a situation where an employer can be acting in the best faith and say they kept someone on for a little longer just because they felt bad for letting that person go and then they happen to pay that person late to no fault of their own. Well, you’re still on the hook. So those are times when, especially if I’m representing the employer, I feel terrible for them, but that’s a tough one in Massachusetts and that’s one you really have to keep your eye on.

Jeff Plakans:
So what role does tradition or what a lot of people would call standard operating procedures play in some of the employment practices that you’ve seen?

Sara Kula:
I guess for me, what I’ve seen is that a lot of employers think that if nothing’s been a problem in the past, that it won’t be a problem in the future. But employees are becoming more and more aware of their rights. I feel that they’re becoming more and more comfortable complaining about their situations. And so many of the experiences I’ve seen are it’s actually the employees that you go above and beyond for or have treated especially, given them more chances that tend to be the problem down the line. And just like when you get married, you don’t anticipate getting divorced, here you have a good employee, you don’t anticipate it going bad, but it can, and you can’t ignore that possibility when you’re creating your policies and procedures.

Chris Waterman:
Yeah. And to play off of that, I think the next piece of that too is just staying educated because the law is always changing. And so the way you did it 15 years ago, for example, paying employees, that might change. Non-competes, we’ll get into that later, that has changed. So you need to stay abreast and it’s really, you fall into a dangerous pit if you say, “Well, that’s the way it’s always been done.” And unfortunately, I still see that quite a bit, especially when you have companies, older companies that are run by a business owner who’s owned it for 35 years. So that’s what you need to look out for.

Sara Kula:
And the laws change, right? I mean, especially in Massachusetts and New York, we just got a new law that’s coming out in a few months and you have to be on top of those things or you’ll miss them.

Jeff Plakans:
Exactly. It’s funny too, because how employees are educated about their rights has changed. It used to be just the labor poster that was on the wall. And I stumbled across a post from the attorney general in Massachusetts on Instagram of all places, informing people of their rights. So they’re going straight to the employees to make sure they know. And I think we see a lot of employers that feel like, “Oh, not me. I’m never going to get caught,” or whatever. And that’s far from the truth of what could happen today.

Chris Waterman:
And Jeff, if I may, we also have this thing called ChatGPT, right?

Jeff Plakans:
Oh yes.

Chris Waterman:
A lot of employees are getting their information from ChatGPT. Now, whether it’s accurate or not, that’s another story, but I’m sure employers have been seeing that, well, I’m entitled to this or I’m entitled to that. So I’m seeing a lot of that and I’m sure Sara is too.

Jeff Plakans:
It wouldn’t be a webinar in 2026 without talking about AI, right?

Chris Waterman:
Yeah. Yeah.

Jeff Plakans:
So we talked about the employers, but let’s talk about the types of claims that you guys see that show up the most. So wage and hour claims, we see them at the top of the list here, can be far and wide. But first, let’s talk a little bit about that. And can you define for maybe our less informed viewers what wage and hour actually is?

Chris Waterman:
Sure. It’s not simply… I mean, it’s somewhat misleading and thanks for the opportunity to explain it. It’s basically how you compensate your, I don’t even want to call them employees, people who provide services for you. And especially if they’re designated as an employee, there are a lot of rights. And as I’ve already touched on, a lot of these rights have highly punitive consequences if you fail to follow it. So it’s basically just how they’re paid, when they’re paid, and how much they’re paid. And there’s obviously a lot more to that. That’s just a wide brush of the overall approach to the wage and hour piece of this.

Jeff Plakans:
And we have discrimination and retaliation now. Sara, you’ve dealt with that quite a bit.

Sara Kula:
Yeah, absolutely.

Jeff Plakans:
What kind of forms do you see that taking? Because I think even those words, people infer or draw different meanings from what it actually is by the letter of the law.

Sara Kula:
Yeah. I mean, really discrimination is treating someone differently based on, for legal purposes, on a protected category, which will differ from jurisdiction to jurisdiction. So that’s also something you need to be aware of. And harassment, sexual harassment, but other forms of harassment also fit within that area, as well as retaliation. Now, of course, not all mistreatment is illegal, but I think in my experience, employees are much more attuned with what they believe is mistreatment and what they feel they’re being retaliated against for. So I get those calls a lot. They’re not all valid claims, and I bet Chris gets the same. Every day someone feels like they’re in a toxic environment or a hostile work environment. Those are words that are thrown out a lot. And a fair amount of the time I can tell people, “No, I’m sorry, I can’t help you,” but it doesn’t mean I won’t ask them how they’re being paid and see if they have a wage and hour claim or something else we can talk about.

Jeff Plakans:
Ah, gotcha. Excellent. So on wage and hour, what’s the best proactive action an employer could take to avoid a claim like that?

Chris Waterman:
Well, in the wage and hour piece, having an exhaustive review of your staff. Especially if you’re classifying any employees as independent contractors, you want to have an employment attorney review that to make sure that they are in fact an independent contractor. The attorney general loves going after companies for misclassifying based on an independent contractor status. Very few people who provide services to a company are actually an independent contractor. So if you have a bunch of independent contractors on your roster, you make sure you have an exhaustive review done of that because that’s something the attorney general really looks for. And then the other one is the exempt, non-exempt status. The exempt employee are not entitled to overtime and non-exempt are. And that’s a topic because that’s a whole nother hour of conversation, but you want to make sure just because they’re salary doesn’t mean that they’re exempt. So just be mindful of that.

Jeff Plakans:
Sara, in New York State, what are some of the kind of New York unique things you have a tendency to run into?

Sara Kula:
Well, wage and hour laws can be very technical, just like they are in Massachusetts, just sometimes technically different. And the disability and leave accommodations is another area where there are differences state by state. New York has New York Paid Family Leave, Massachusetts has its own. And what makes those areas so complicated for employers is the laws often overlap. So how does the paid family leave interact with FMLA and how does that maybe interact with workers’ comp if the person was injured at the job or the disability laws? So there’s a lot of different issues there. Also, sick leave, a lot of states now have their own sick leaves. I once tried to write a policy that would comply with all 50 states’ sick leave, and I virtually could not do it unless I was giving unlimited sick leave because of all the differences. So now with more employers have employees working remotely and in different states, and that can create a lot of issues with ensuring that you are complying with each of those different states’ requirements.

Jeff Plakans:
Absolutely. Absolutely. So how does this all take shape? So when a claim gets made by an employee and then it comes to you guys, what happens after you make contact and then before anything ever goes to court and then in court?

Chris Waterman:
Yeah, quite often, and I’m sure Sara’s the same way, if an employee comes to me with a concern with how they’ve been treated by their employer, obviously I vet the case, get all the information. But typically the next step, unless an extremely remote situation, you would send what’s called a demand letter outlining your claim and saying, for example, say it’s a wage claim, outlining the facts, attaching any documents you think might be relevant and say, “Hey, listen, this is what they’re owed. We’d like you to pay X. And if you don’t, this is your chance to avoid litigation.” And then most often you engage in negotiations back and forth. Most often you can work it out. Sometimes you can’t and you have to go to court. I would say probably 15% of the time I can’t work it out. 85% the employer recognizes that there are costs associated with defending a case, even if they don’t feel that there’s any merit to it. So that’s a typical path, and I’m sure Sara has a similar experience on how these claims take life.

Sara Kula:
Yeah. I do also start with a demand letter to see if the matter can be resolved. Obviously that saves time and money for both sides. And how the employer responds will really impact whether I’m willing to take the case forward. One, substantively, if they give information that destroys my claim, then I’ll think differently. But also the attitude that they take and the behavior, because I’ve had cases where I’ve told the individual upfront, “I’ll write a demand letter, but I can’t invest the time and resources to go to court,” But then I get so annoyed with the employer and their response that I start taking it personally and I’ll do it. So you got to be careful about-

Chris Waterman:
And what’s funny, Sara, is that we always tell our clients not to get emotional about, because clients typically get very emotional about the case and they look past the merits of the case and they feel strongly about it. And to Sara’s point, I typically try to avoid that. But there are times when, especially if I think I have a strong case, either the attorney is kind of taking an unreasonable position or the employer is, we might take a different approach, a little more aggressive approach because we’re getting emotional now when we’re not supposed to.

Jeff Plakans:
Well, like I said, no one likes being disrespected, right?

Sara Kula:
Exactly.

Jeff Plakans:
So Chris, we referenced Massachusetts a little bit. Tell us a little bit about some of the hidden traps that can exist here in Massachusetts.

Chris Waterman:
Sure. I’ve already touched on the Wage Act, the one day late provision. The Mass PFML, Paid Family Medical Leave, is the newest and the biggest one I see probably most frequently because anyone who goes out on leave, they don’t typically go on FMLA because you don’t get paid. Also, the FMLA doesn’t allow for the strict retaliation provision in the PFML, which says that within six months of either coming back from PFML or notifying the employer of your interest in going on the PFML, any adverse employment action that you take against them in that time period is presumed to be retaliation. Now that’s the key language is presumed. But the employer now has the duty to show that it’s not retaliation, that there was a legitimate business reason to do so. And while that typically could be easy to do, if you lose, again, the punitive aspects of the PFML is similar to the Wage Act, triple damages and attorney’s fees.

So you have a large incentive to say, “Well, can I prove that it was a legitimate reason?” Because they can just point to a lot of things like, “I never got a performance warning before this.” And the employer can say, “Well, we were trimming our workforce because of finances.” Okay. Well, show me how many employers you let go and we can look at that and that might not bear out those numbers. So the message here is when you have an employee going on PFML, treat them very cautiously. I often give the advice of when they come back, say their performance is lacking in the first month or so, say, “Listen, you can let them go now, but you’re going to be a lot less of a headache if you put up with them for four months if you can. Get them outside that six-month window.” And it’s still a relatively new act. So that whole six-month window, it’s still being recorded in case law and whatnot, but right now it’s very pro-employee in that respect.

Jeff Plakans:
So obviously the best scenarios in all of this is where there’s alignment, maybe even agreement that exists between the employee and the employer. So what are some of the key ways that we can eliminate disputes?

Chris Waterman:
Yeah. So ways to eliminate, exactly. As Sara mentioned, one of the things I like to encourage my employer clients and my employee clients is if they have some kind of an employment agreement, put as much detail as possible. Don’t leave terms ambiguous. For example, the biggest one I see is on commission payments, and commission payments are considered wages. So employers tread lightly because again, if you violate paying them timely commissions or you pay them the incorrect amount of commission, you’re on the hook. But if you have a clearly drafted commission plan that says you’re going to get paid X amount, you’re going to get paid on X date, and this is how it’s going to work, then if they come back and they try to argue that they weren’t paid properly, you have that as your defense. If you don’t have that, they can say, “Well, this is how it was always done.” It just creates ambiguity you want to avoid. So that’s one way to avoid problem cases in the future by taking proactive actions at the outset.

Sara Kula:
I would just put one caveat on that is that an employee can’t agree in most cases to circumvent the law. So having something in an agreement doesn’t mean that it’s compliant. You could have a super long commission agreement that says you’re going to, at least in New York, that you’re going to take back earned commissions if X, Y, Z happens and once those commissions are earned, you can’t deduct from them. So even if the employee agreed to that, again, at least in New York, that would be a violation of the law. Same thing with an independent contractor agreement. An employee can’t agree to do that. They can’t agree to waive any of their statutory rights.

Chris Waterman:
Yeah. And I agree, Sara, that definitely on the independent contractor agreement, but one twist in Massachusetts, for example, is if someone tries to say that you’re going to be paid when the money is collected and the person gets terminated two days before the funds are collected and that’s in the commission agreement, they will argue that, “Well, I earned it,” and there’s some case law out there that says that if they earned it and it’s due and owing, then you must pay it to them. But if you have a commission plan that says you’re going to get paid on X date, it’s likely that the employer will prevail. Now, of course, adding the legal element to all this is that there’s some case law out there that undermines that, so there’s a little bit of an undercurrent about that potentially changing, but right now that’s the state of the law. But otherwise I would agree with Sara.

Sara Kula:
Yeah. And the semantics really matter, right? I mean, when something’s earned versus may be different than when it’s paid. And so you have to be really careful about those things. But almost always it’s better to have documentation than not, except when it admits to your liability or something like that.

Jeff Plakans:
So when a lot of people hear the word documentation, they think something that’s on a piece of paper, right? But in this day and age, we have email, we have texts, we have Zoom call recordings and whatnot. So what role has all of that played in some of the cases that you’ve been involved with as proof or as documentation?

Sara Kula:
Yeah. I mean, I would say documentation is critical in whatever way it comes. I think an email discussing someone’s performance has as much weight as a review because it exists and it’s contemporaneous. I’ve had situations where I believed I had a really strong retaliation claim because there was just a short duration of time between an employee’s complaint and termination, but then the employer was able to show me that, no, here’s an email showing we started planning this termination prior to receiving the complaint, and then that destroyed the entire claim.

Chris Waterman:
Yeah, I would agree. I was just going to say that, Sara, that that’s where the documentation can really save you a lot of money because to Sara’s point, if I have a claim like retaliation and I’ve had this happen, as I’m sure Sara has, and you get that email that shows something that undermines your case completely, well, it’s time to cut bait on that one, unfortunately. And then that’s to the employer’s benefit, of course.

Jeff Plakans:
Got it.

Chris Waterman:
And I will add one thing, Jeff, if I could, to the documentation piece, and I’m not sure if we’ll get into this in detail, but for example, harassment policy in Massachusetts, the MCAD says that they have an accepted template of a harassment policy that you should include in your employment handbook, and they should sign something acknowledging that they received specifically the harassment provision. What that does is if that’s in your handbook, that will generally go a long way in protecting you from punitive damages if you were found liable in a sexual harassment claim. So that’s one where it’s documentation, but it’s also following the law. It’s been around for a while, but something that’s very easy to do and something that will save you a lot of money if you find yourself in that situation.

Jeff Plakans:
So when it comes down to wage and hour claims, it occurs to me that when we’ve seen this with clients, the first thing that usually the departments of labor are asking for is proof, proof in the form of time records. Now, what role has that played in all of some of these scenarios that you’ve been involved in?

Sara Kula:
I mean, the starting point for any wage and hour claim are the time and payroll records, right? And having good and accurate time and payroll records control the case. They say what they say. Of course, those time records can also raise questions if they’re not accurate. I’ve seen where all the punches are round numbers, which is always questionable, or no one ever works over 40 hours, they always stop working at 40 hours. So obviously they have to be accurate and complete.

Chris Waterman:
Yeah. And I have a case going on right now that’s actually in the pre-suit negotiation stage, which it’s a case I feel strongly about where someone who was classified as an independent contract, clearly he was an employee. So we have that going. But he kept his time records. He kept notes at home of his time. And we have gone to the employer and said, “Show us that these are wrong.” And I get back, well, they didn’t keep very good records. Okay. So now we have someone who kept contemporaneous time records versus someone who doesn’t. They’re in a bit of trouble on this one because again, triple damages, overtime, with overtime too. So that’s another reason you want to keep very good payroll records and that’s why I hire a good payroll company. Right, Jeff?

Jeff Plakans:
I know one.

Sara Kula:
Exactly.

Jeff Plakans:
I do know one. I do know one.

Sara Kula:
And Chris, I don’t know if this is the same in Massachusetts, but in New York, if the employer doesn’t have time records, there’s a presumption in favor of whatever the employee says. So the employee says they worked 60, 70, 80 hours a week, it becomes the employer’s burden really to disprove that because they were the one responsible for maintaining the records.

Chris Waterman:
Yeah. Massachusetts, something similar. It’s not as clearly stated as that, but it certainly is the prevailing argument that I would make in that situation.

Jeff Plakans:
So we talk about the cost of waiting. So I asked before, what causes an employee to go to one of you? What’s wrong? What’s their state of mind? And as, Sara, you said at the top of the hour, happy employees don’t call lawyers. But as an employer, how can they help themselves?

Sara Kula:
How can employer help themselves-

Jeff Plakans:
Yes.

Sara Kula:
… avoid seeing us? I think number one is compliance. I mean, I view compliance like insurance. You wouldn’t not have an insurance policy and you need to make sure you have all your policies and practices and wage and hour in place. And then you need to have people who know the law, the managers and the HR people who are interacting with the employees know what they can and can’t do. And of course you want a situation where everyone’s being treated fairly and respectfully. It doesn’t mean you don’t discipline and you don’t hold people accountable, but I think how you do that matters. And I would just say, I think there’s a problem with your slide here because I don’t think a thousand dollar conversation can prevent a $25,000 problem, but it can also prevent the $250,000 problem or a 2.5 million.

Chris Waterman:
I like it, Sara. And I would go off of that, Jeff, I mean, the easiest example I can give, and I’m sure it happens with everyone on this webinar today, is that they’re letting an employee go and they’re saying, “You know what? She was a terrible performer. We have okay records, but she’s kind of a pain in the butt and she’s made some noise about payment and little things that there’s no merit to it whatsoever. So we’re just going to let her go.” And I always say, “Listen, I get it. She doesn’t have a claim, but if she does file a claim, merit or no merit, it’s $25,000 out of the box to prepare an answer and defend it from the beginning. So pay her a $2,500 severance pay with a full release.” And some employers balk at that and I’m like, “That’s fine, just so you understand,” because they don’t want to pay money for someone who doesn’t deserve it. So if you have that potentially, an employee who you know has been problematic or likely to file a claim, paying the money, you’ll sleep better at night and you’re not going to hear from them three months down the road.

Jeff Plakans:
Got it. Thank you for that. So before we get into talking about any other traps that might exist, what’s the best place you would say an employer can go to get the right information to avoid seeing either of you?

Chris Waterman:
Oh, okay. I was going to say call us. Yeah, I would say first is proactive compliance, but certainly if they have that situation where they don’t know what to do, call an employment lawyer. I mean, you might pay a few hundred dollars for that hour call, but that is the easiest answer and I think the most obvious one.

Sara Kula:
Yeah, I would agree with that. Or get an HR consultant who knows what they’re doing if you don’t have HR in-house, and spend the resources to train the HR and the managers that you do have. Anything a manager does is the same as the employer doing it under the law. So you need to really be able to trust those people to do the right thing.

Jeff Plakans:
Awesome. Awesome. Well guys, thank you so much for taking the time with us today. I always like to wrap it up on a good story or two. And given the discussion that we’ve been covering today and everything, what would be a story that you could tell or just a thought to leave each of our employers with today based on your experience out there in the field representing employers and employees?

Chris Waterman:
Yeah, I mean, I can think of a case that’s probably an employer’s nightmare and not much they could probably control. But I had an employee come to me and she had been terminated and she claimed wrongfully she was a disabled person. And she said ultimately her boss had asked her to ship her some pain meds that this woman was on that she was on because of her disability. And she said, “No, it’s a felony. I don’t want to do it.” Two weeks later, she gets terminated. Couldn’t have a clearer cut of retaliation than that. So I send a demand letter, a pretty decent demand amount, and they come back and they say, “Well, she’s denying it.” And I said, “Okay, well, here’s the text.” Within a day, I’ve never seen this before, they said, “We’ll pay the demanded amount.” So not much of an employer can do about that except maybe vet their employees better.

But I’ll leave you with one more point, and this is just kind of another piece of information. I know it’s on one of the slides we didn’t get to. I often hear people call me and say, “Well, I got a non-compete, but they’re not enforceable in Massachusetts anymore.” As I’m sure many of you know, in October 2018, the Mass Non-Commission Act came out. It says, “If you follow certain steps, requirements, then a non-compete is enforceable.” So if you want your employees to be bound by a non-compete, and frankly, I often recommend that they don’t do that because there are some financial implications to you you need to pay out, do a non-solicit. That gives you the same protection as what is a non-compete and courts in Massachusetts don’t like enforcing non-competes. So if you’re going to have a non-compete, make sure you have it reviewed by an HR consultant or by your attorney, but know that they are in fact enforceable.

Jeff Plakans:
Sara, how about you?

Chris Waterman:
I think we lost Sara.

Jeff Plakans:
Oh.

Sara Kula:
Can you hear me?

Chris Waterman:
Oh, she’s back.

Jeff Plakans:
Yes, we can hear you.

Sara Kula:
Sorry about that. One of my favorite experiences was helping an employee who had worked somewhere for over 30 years, I think, and then was very unexpectedly terminated. To me, it was pretty clear unlawful retaliation. So obviously I was already happy to help her. But I was particularly offended on her behalf when I found out that the way she was terminated is that the manager asked her to go to Applebee’s for lunch, but his car wasn’t there, so he drove in her car. And as they went to sit down at Applebee’s, someone from HR came and they terminated her, I think before they even ordered. And I was just so offended by that experience for her that it made me particularly, made the process enjoyable. And I think that just goes to, again, treating people fairly and making people feel respected I think goes a long way.
One thing also I wanted to mention is, and I think this is different in other states, but in New York, your employees can record you. It’s a one party consent state, which means as long as they know they’re recording, they can do it and they are doing it. I’m seeing that more and more individuals coming to me with recordings of conversations. So I always tell my business clients to just assume they’re always being recorded and be careful what they say because I heard some pretty interesting harassing, sexually harassing comments in audio recording from clients before. And obviously once you have that, there’s not much else the employer can say.

Jeff Plakans:
Your negotiating stature changes pretty significantly. Wow. Well, thank you for sharing that. And both of you, thank you for joining us today.

We did mention payroll and we did mention getting some good HR. And so I just wanted to put in a plug for Commonwealth’s new Employer’s Handbook Community. We know that there’s lots of you that are not highly experienced HR folks that are out there who could use every bit of help and every bit of guidance that you can get. That’s what being part of the Employer’s Handbook Community is. We share lots of information, very basic, very complex and the same. So if you’re interested, go ahead and scan that QR code there. That’ll get you on and submit it to us. And again, Chris and Sara, thank you so much for joining us today. We really, really appreciate it. If anybody’s interested in talking to Chris, talking to Sara, or talking to me, here’s our contact information. Thank you again for taking the time during your lunch hour or just before it to listen to us. Recordings will be going out. And I do want to hit on one point, which is I think we have one or two questions that are out there right now. You guys got time for questions?

Sara Kula:
Sure.

Jeff Plakans:
All right. So it says, “Sara mentioned difficulty in drafting a sick leave policy that complies with multiple states. We have 20 employees from seven states, including Mass, California, New York, and others, and never had a sick leave policy, letting employees take whatever time is necessary for illness, effectively an unlimited policy, but has never been documented. Actually, time off has also not been recorded anywhere in the past. As I begin the process of trying to create a documented policy so that we can meet multiple state compliance, what recommendations do you have? Is one policy acceptable or should we consider multiple policies for multiple states?”

Sara Kula:
Okay. So typically when I have businesses in multiple states, my recommendation would be you have one primary handbook and then you have state supplements for each of the individual states where you need it. There are some states like Florida or Texas where they don’t really have much. You can just do the postings and you’re good. But a lot of the Northeast states or the sort of blue states, they tend to have more laws. But aside from sick leave, like I said, they’re going to have their separate paid family leave laws and things like that that do require different issues. With respect to the sick leave, it really will depend on the particular states. And if you can come up with one policy that’s compliant with all of those, you just defer to the most generous, then it’s absolutely fine to just have one, but you have to be comfortable. It sounds like this is a very generous employer already, but you just have to be comfortable ensuring that it complies with all of the various states with respect to how much you’re giving, how it carries over, how it can be used, how small the increments of the leave can be. So you have to think through all of that.

Jeff Plakans:
All right. Awesome. Thanks, Sara. Here’s another one, two question, two parts. One of the speakers said some employees that get more chances tend to be the problem down the line. Can you talk a little bit more about this?

Chris Waterman:
I think that was Sara.

Sara Kula:
Yeah, but I bet you’ve experienced it too, Chris, right?

Chris Waterman:
Oh, yeah. Yeah, no, no. I mean, yeah, they’re the ones… You hate to see it. I mean, the ones who are given chances are usually the ones that are given a chance because they’re not doing something they should be doing, and then they kind of take advantage of that and they turn around and they use it. They sometimes will try to say, “You let me do it once, then you should be letting me do it again.” So it’s one of those situations where employers try to do the right thing and it comes around to bite them. But typically, I mean, these cases don’t get in front of juries, but if they do, juries will look at that favorably for the employer, but you have to be careful you’re not running afoul of the law at the same time, of course.

Sara Kula:
Yeah. There’s also situations where you may have one manager who’s a little lax and lets some of the performance issues slide, and then you have a new manager come on and start holding someone accountable and the employee may say, “Well, I haven’t changed, so it must be because this is a man and I’m a woman or we’re different colors.” They look sometimes for other explanations for why they’re being treated a certain way.

Chris Waterman:
Yeah, no, that’s a good point.

Sara Kula:
Or they get a writeup and then they tell you that they need time off for their anxiety. So they weren’t in a protected category and now they are.

Jeff Plakans:
Well, so to the second part of this question, if someone with performance challenges is about to go out on PFML, would starting/documenting performance actions, et cetera, before they go on leave help?

Chris Waterman:
I mean, you have to be careful there. If they tell you they’re going on a leave and all of a sudden you start documenting their performance issues, that can look problematic and retaliatory. So that’s something where I really have a conversation with the employer and ask them, “Okay, what’s the severity of this? What do we need to do with this? What are you looking to achieve by doing this?” And it may be just that, “You know what? You missed your chance to do this, to write these performance issues, so you’re going to have to wait.” Or you can write them up and just that alone won’t subject you to liability unless you terminate them within that six month period.

Sara Kula:
Yeah, that’s a messy one. I mean, I’m dealing with someone now who clearly should have terminated an employee months ago, the employee had clear performance issues, but they didn’t. And then the employee’s father got sick and now she’s protected. And so now taking the same action that he would’ve taken months ago comes with significantly more risk.

Jeff Plakans:
All right. Okay. Well, that looks like about all of the questions that we had. Thank you again, Chris, and thank you, Sara, for joining us today and sharing with us your experience and knowledge. And for those of you who’ve taken the time to join us, thank you very much as well. We always appreciate when we can all get together and talk about my favorite subject, which is being an employer. So thank you very much. Enjoy the rest of your day. Bye-bye now.

Chris Waterman:
Thanks, Jeff. Thanks everyone.

Sara Kula:
Thanks. Thanks for having us.