The Blog

by Casey Sack, Esq.

Rudolph Friedmann LLP

The at-will employment doctrine is a double-edged sword in the workplace, offering both freedom and uncertainty. It gives employees the flexibility to walk away from a job without strings attached, while employers can make staffing changes swiftly without protracted legal complications. Yet, with this freedom comes a shadow of unpredictability—where job security can feel fragile, and a slight shift in business priorities could lead to sudden dismissal. While the doctrine may appear straightforward, it exists within a complex web of protections and exceptions, ensuring that beneath the surface of at-will employment, certain rights remain firmly guarded.

Massachusetts is one of the many states that follows the at-will employment doctrine. Under this principle, both employers and employees have the freedom to terminate the employment relationship at any time, with or without cause, and without prior notice. This flexibility means that, in most cases, an employer does not need to provide a reason to fire an employee, nor does an employee need to give a reason to resign.

However, like other states that follow this doctrine, there are important legal exceptions to at-will employment in Massachusetts. Employers cannot terminate employees for reasons that are illegal, such as discrimination or retaliation. Massachusetts state laws, as well as federal laws, protect workers from being fired based on characteristics such as race, religion, gender, age, disability or national origin. The state also protects employees from retaliation for reporting workplace violations, including harassment, discrimination or unsafe working conditions. Employees who raise concerns about illegal activities in the workplace or refuse to participate in them are also protected under public policy exceptions.

Massachusetts also recognizes the concept of implied contracts, which can override the at-will status. For instance, if an employer makes specific promises of job security or sets out disciplinary procedures in an employee handbook that imply a process for termination, the employer may be required to follow those procedures before firing an employee. Even if there is no written contract, courts may interpret employer policies or verbal assurances as creating an implied agreement. In addition to state and federal protections, Massachusetts employees who belong to unions or are covered by collective bargaining agreements may have additional job security beyond the at-will standard.

While at-will employment provides flexibility, it is essential for both employees and employers to understand that this freedom is not unlimited. Violating the exceptions to the at-will doctrine can result in legal consequences, ensuring that employees still have significant protections under the law in Massachusetts.

Liquidated Damages Cannot Penalize

by Sean Cullen, Esq.

A liquidated damage provision can be an effective contractual tool to predetermine the amount of damages a party must pay if there is a breach of the contract. Liquidated damage provisions are intended to provide parties with certainty of result by allowing them to agree in advance to a sum certain. That sum is intended to be a reasonable estimate of potential damage in the event of a breach. As illustrated by a recent Massachusetts Appeals Court decision, however, a liquidated damage provision that serves as a penalty for a breach of the contract, rather than a reasonable estimate of potential damage, will not be enforced.

           

The decision concerned a provision of a commercial lease that entitled the tenant to actual damages plus $500 for each day items identified on a punch list, such as HVAC maintenance and repair, remained uncompleted after thirty days. Liquidated damage provisions negotiated between sophisticated parties are presumptively valid, provided that: (1) actual damages are difficult to calculate at the time of contract formation; and (2) the agreed upon sum represents a reasonable estimate of potential damage in the event of a breach. As the Appeals Court noted, however, the provision of this lease was not a liquated damage provision at all. By awarding a sum above the tenant’s actual damages, this provision guaranteed that the liquidated damage calculation would exceed, and perhaps vastly exceed, the actual damage calculation. Rather than provide the parties with certainty of result by allowing them to agree to a sum certain based on a reasonable estimate of potential damages, this lease provision simply added a $500 daily fine to the tenant’s actual damage calculation. The Appeals Court determined that this lease provision was an unenforceable penalty and therefore limited the damages to the tenant’s actual damages.          

Massachusetts Wage and Hour Regulations – A Primer

by Adam J. Shafran, Esq.

Massachusetts has established comprehensive regulations under 454 CMR 27.00 to clarify and expand upon the state’s wage laws. Below, we’ll explore key aspects of these standards to help employers and employees better understand their rights and responsibilities.

Minimum Wage and Overtime Provisions

Basic Minimum Wage

Employers must pay at least the basic minimum wage unless explicitly granted a waiver under specific legal conditions.

Tipped Employees

The total compensation for tipped employees, including the service rate and tips received, must equal or exceed the basic minimum wage. To comply, employers must:

1. Notify employees in writing about tipping regulations and the service rate.
2. Ensure employees retain all their tips, unless tips are distributed via a lawful tip-pooling arrangement.
3. Pay employees the full minimum wage if the tipping conditions are not met.

Overtime Pay

Non-exempt employees are entitled to overtime pay at 1.5 times their regular hourly rate for any hours worked over 40 in a single week. For tipped employees, the overtime rate is calculated based on the basic minimum wage rather than the service rate.

Reporting Pay

Employees who report for scheduled work of three or more hours must receive at least three hours of pay at the minimum wage if they are sent home early.

On-call Time

Employers must compensate on-call time unless the employee can freely use the time for personal purposes while waiting to be called.

Travel Time

• Ordinary Commutes: Travel between home and work is not compensable.
• Employer-required Travel: Travel beyond ordinary commutes for work purposes is compensable and must be paid at the applicable rate.

Sleeping Time

For employees working shifts of 24 hours or more, meal and sleep periods may be excluded from compensable hours if these periods are pre-agreed in writing and remain uninterrupted.

Permissible Deductions

Employers are allowed to make deductions from an employee's wages only under specific conditions:

• Lodging: Employers may deduct lodging costs from wages, but only if the employee has voluntarily agreed in writing. The maximum allowable deduction is $35 per week for single occupancy. The lodging provided must meet safety and health standards as outlined by relevant regulations.
• Meals: Employers may deduct the cost of meals, up to $6.00 per day for three meals, provided the employee voluntarily accepts them. The meals must meet reasonable nutritional and quality standards.
• Other Authorized Deductions: Employers may deduct for items such as health insurance premiums, union dues, or retirement contributions, but only if the employee has explicitly authorized these deductions in writing.

Uniforms

If a uniform requires special cleaning or maintenance, the employer must either provide the cleaning services or reimburse the employee. Uniforms that are "wash and wear" do not require employer reimbursement.

Prohibited Deductions

Employers may not deduct fees or costs from employees’ wages unless explicitly permitted by law. Unauthorized deductions, including those for cash shortages, breakages, or customer theft, are strictly prohibited and may lead to legal penalties.

Notice and Recordkeeping

Employers are required to:

• Post notices in the workplace outlining minimum wage laws, in both English and any other language spoken by at least 5% of the workforce.
• Maintain detailed and accurate records of hours worked, wages paid, and deductions made for a minimum of three years.
• Provide employees with access to their employment records within 10 business days upon request.

Conclusion

Massachusetts is known for its detailed employee-friendly laws. The above are just a few examples. For comprehensive details, consult the full text of 454 CMR 27.00 or reach out to Rudolph Friedmann for further guidance.

The construction industry will need to attract an estimated 439,000 net new workers in 2025 to meet anticipated demand for construction services, according to a proprietary model developed and released today by Associated Builders and Contractors. In 2026, the industry will need to bring in 499,000 new workers as spending picks up in response to presumed lower interest rates.

“While the construction workforce has become younger and more plentiful in recent years, the industry still must attract 439,000 new workers in 2025 to balance demand and supply,” said ABC Chief Economist Anirban Basu. “If it fails to do so, industrywide labor cost escalation will accelerate, exacerbating already high construction costs and reducing the volume of work that is financially feasible. Average hourly earnings throughout the industry are up 4.4% over the past 12 months, significantly outpacing earnings growth across all industries.”

ABC’s proprietary model uses the historical relationship between inflation-adjusted construction spending growth, sourced from the U.S. Census Bureau’s Construction Put in Place Survey, and payroll construction employment, sourced from the U.S. Bureau of Labor Statistics, to convert anticipated increases in construction outlays into demand for construction workers at a rate of approximately 3,550 jobs per billion dollars of additional spending. This model also incorporates the current level of job openings, unemployment and projected industry retirements and exits into its computations.

“This represents improved labor availability relative to recent years,” said Basu. “The improvement can be traced to two primary factors. First, construction spending is expected to grow at its slowest pace in years throughout 2025, especially in interest rate-sensitive segments like homebuilding. Interest rates will remain elevated in 2025 before likely beginning to dip next year. Second, the industrywide workforce has become significantly younger over the past several quarters, with the median construction worker now younger than 42 for the first time since 2011. As a result, the pace of retirements is expected to slow this year.

“Despite that improvement, contractors will struggle to fill open positions,” said Basu. “This will be especially true in areas where manufacturing and data center megaprojects are underway. More than $1 in every $5 spent on nonresidential construction currently goes toward manufacturing projects, and those projects are absorbing a significant share of the labor force in their respective regions.”

“The U.S. construction industry’s efforts to hire more workers to replace retirees and meet the demand for new construction projects gained momentum in 2024,” said Michael Bellaman, ABC president and CEO. “That is fantastic news, but we still have a long way to go to shore up the talent pipeline. The data on the number of young people choosing a career in construction suggests that employing practical technology and innovation in educational programs and on jobsites helps maximize the productivity and efficiency of the construction workforce. ABC’s all-of-the-above workforce development strategy is working to draw new entrants into the industry through hundreds of entry points and upskill them through both industry-driven and government-registered apprenticeship programs.”

“There are also factors that could render this model overly conservative, meaning worker shortages could be more severe than predicted in 2025,” said Basu. “While the consensus forecast has construction spending increasing by less than 3% in 2025, that same forecast has underestimated growth by a significant margin during each of the past three years. If inflation dissipates in coming months, borrowing costs will subside and construction volumes will increase. Faster-than-expected immigration over the past few years has also bolstered labor supply, and potential changes to immigration policy will likely constrain worker availability.”

“Another solution to addressing the shortage is a merit-based, market-based visa system,” said Bellaman. “ABC’s goal is to work with the Trump administration and Congress to create a visa system that allows people who want to contribute to society and work legally in the construction industry to do so.

“President Trump and the 119th Congress have a significant opportunity to advance policies and regulations that protect free enterprise, reduce regulatory burdens, expand workforce development and create a fair and level playing field for all construction workers, regardless of their labor affiliation,” said Bellaman. “Legislation like the Tax Cuts and Jobs Act, the Employee Rights Act, the Fair and Open Competition Act and permitting reform can create the conditions for the construction workforce to rebuild America’s infrastructure. The construction industry thrives when all 8.3 million workers are given the opportunity to build America with fewer obstacles.”

According to an Associated Builders and Contractors analysis of the U.S. Bureau of Labor Statistics’ 2024 Union Members Summary, a record low 10.3% of the U.S. construction industry belongs to a union, a decrease from the prior historic low of 10.7% in 2023. 

BLS reports that 7,978,000 construction industry workers were not members of a union in 2024, a 12,000-person increase from 7,966,000 workers in 2023, while union membership decreased by 38,000 to 916,000. The construction industry shrunk by 26,000 workers, from 8.92 million in 2023 to 8.894 million in 2024.

“It is remarkable that the construction industry’s union membership dropped to a new historic low of 10.3% following four years of anti-competitive and inflationary Biden administration policy schemes pushing taxpayer-funded construction projects to union-signatory contractors through project labor agreements on new federal and federally assisted infrastructure, clean energy and manufacturing construction projects,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Barriers to construction industry union membership are extremely low––workers can freely go to a local union hiring hall, join a union and be dispatched to union-signatory contractor jobsites in a short amount of time. What this says about American construction workers is that they are not wild about the product unions are selling, and unions’ radical policies and politics are not appealing.

“With construction materials prices up 38.6% since February 2020, higher interest rates and a workforce shortage of 439,000 in 2025, the headwinds currently facing the construction industry are considerable,” said Brubeck. “Now is the time for the Trump administration to level the playing field in a way that creates more value for taxpayers through healthy competition for construction projects based on merit. One way President Trump can give the contracting community immediate regulatory relief is by fully eliminating former President Biden’s harmful pro-PLA policies, one of which a federal court ruled against earlier this month because it reduced competition on 12 federal construction contracts and violated congressional intent. Eliminating PLA mandates would save taxpayers an estimated $10 billion per year on federal and federally assisted construction projects.”

Construction input prices decreased 0.2% in December compared to the previous month, according to an Associated Builders and Contractors analysis of U.S. Bureau of Labor Statistics’ Producer Price Index data. Nonresidential construction input prices also decreased 0.2% for the month.

Overall construction input prices are 0.9% higher than a year ago, while nonresidential construction input prices are 0.6% higher. Prices increased in all three energy subcategories last month. Natural gas prices were up 57.7%, while unprocessed energy material prices increased 10.0%. Crude petroleum prices rose slightly, by 0.5%.

“Construction materials prices declined slightly in December and are virtually unchanged over the past two years,” said ABC Chief Economist Anirban Basu. “Of course, there is significant variability across input categories. Much of the recent moderation can be tracked to lower energy prices; diesel prices, for instance, are down roughly $0.45/gallon since December 2023. Prices for other inputs, like copper wire and cable or sand and gravel products, have escalated significantly over the past year. For the industry, however, the fact that overall input prices have remained flat in recent quarters is purely good news. Just 20% of contractors expect their profit margins to decline over the next six months, according to ABC’s Construction Confidence Index.”

Associated Builders and Contractors reported that its Construction Backlog Indicator inched down to 8.3 months in December, according to an ABC member survey conducted Dec. 20 to Jan. 6. The reading is down 0.3 months from December 2023.

View the full Construction Backlog Indicator and Construction Confidence Index data series.

Backlog in the commercial and institutional category has fallen by almost a full month over the past year and is now at the lowest level since February 2023. Backlog in the infrastructure category, on the other hand, currently stands at the highest level since August 2023.

ABC’s Construction Confidence Index readings for sales and staffing levels improved in December, while the reading for profit margins declined. The readings for all three components remain above the threshold of 50, indicating expectations for growth over the next six months.

“While backlog inched lower in December, contractors broadly expect construction activity to pick up in the first half of this year," said ABC Chief Economist Anirban Basu. “Contractor confidence remained extraordinarily elevated in December, with the share of contractors that expect their sales to increase over the next six months now at the highest level since early 2022. Despite that confidence, the path of interest rates will play a critical role in industry performance in 2025. If rates remain higher for longer, backlog may remain subdued, especially in the struggling commercial and institutional category.”

Note: The reference months for the Construction Backlog Indicator and Construction Confidence Index data series were revised on May 12, 2020, to better reflect the survey period. CBI quantifies the previous month's work under contract based on the latest financials available, while CCI measures contractors' outlook for the next six months. View the methodology for both indicators.

The construction industry had just 276,000 job openings on the last day of November 2024, according to an Associated Builders and Contractors analysis of data from the U.S. Bureau of Labor Statistics’ Job Openings and Labor Turnover Survey. JOLTS defines a job opening as any unfilled position for which an employer is actively recruiting. Industry job openings increased by 17,000 last month but are down by 178,000 from the same time last year.

“Construction hiring fell to the second-slowest rate on record in November 2024,” said ABC Chief Economist Anirban Basu. “That’s especially meaningful given that the slowest rate occurred in April 2020 as the pandemic brought construction activity to a standstill. At the same time, the rates at which workers were laid off or quit also remained near historical lows, suggesting that both contractors and their employees were in a wait-and-see mode in November.

“Despite this relative stasis, industrywide job openings increased in November, rising to the highest level since August,” said Basu. “More than half of contractors expect to increase their staffing levels over the next six months, according to ABC’s Construction Confidence Index, while fewer than 10% expect to decrease them, a sign that hiring may rebound from the recent lull in the coming months.”

National nonresidential construction spending declined 0.1% in November, according to an Associated Builders and Contractors analysis of U.S. Census Bureau data. On a seasonally adjusted annualized basis, nonresidential spending totaled $1.234 trillion. On a year-over-year basis, nonresidential construction spending is up 2.8%, approximately flat in inflation-adjusted terms.

Spending was down on a monthly basis in 8 of the 16 nonresidential subcategories. Private nonresidential spending was unchanged, while public nonresidential construction spending was down 0.2% in November.

“Contractor confidence surged post-election,” said ABC Chief Economist Anirban Basu. “Many contractors expect a combination of deregulation and tax cuts to support greater activity and profitability going forward, including substantial investment in traditional energy sectors and manufacturing. Still, there are reasons for concern.

“Nonresidential construction spending momentum has all but disappeared, despite an ongoing boom in data center construction (up 43% year over year), largely because project financing costs remain elevated,” said Basu. “With inflation remaining stubbornly high and potentially accelerating going forward, interest rates stand to stay higher for longer. Prospective tariff increases threaten to push construction materials prices higher, and shifting immigration policies could expand future worker shortages. Only time will tell whether the recent upswing in optimism will prove justified.”

Medford Wellington Service Company is clearly serious about its goal to provide its customers with one-stop shopping from southern Connecticut to Portland, ME.

When the company, which serves mostly large commercial clients, had offices in Medford, MA, Billerica, MA, and Rocky Hill, CT, a couple of years ago, they identified a gap in coverage between Billerica and Rocky Hill, CT and addressed it by partnering with Rich Strong Air Conditioning in western Massachusetts.  When customers in southern Maine were asking for more service in the wake of the pandemic, Medford Wellington responded by expanding their service offerings into southern ME, up to the Portland area.

Now the company is expanding to the South Shore, thanks to a partnership with Hub Refrigeration in Quincy that was finalized in November of this year.  Like Medford Wellington, Hub is a longstanding company with a great family culture.  It has been around for over 75 years and Medford Wellington has been in business for almost 60.

“This partnership is a win-win,” said Medford Wellington CEO Michael LaCrosse.  “They have a deep expertise in refrigeration and grocery stores and we’re able to share with them our technology, processes and procedures .”

Looking to the new year, integrating the businesses and meshing the cultures of Hub and Medford Wellington will be a top priority.   

Another benefit of expansion is that Medford Wellington can offer more career choices to its employees.  The company just rolled out career roadmaps and seeks to offer its people career options from the time they are apprentices, through licensure, perhaps office positions if physical work becomes too demanding, all the way to a potential executive role.

“We want to provide the best home for our employees,” LaCrosse said.  “People go through life changes, have families – our attitude is ‘let’s figure out a way to make it work and support our employees.’”

In November, the Gould Construction Institute cut the ribbon on its new training facility located in Medford Wellington’s Billerica location, a process that started with a conversation between LaCrosse and Gould Education Director Diane Craven at ABC MA’s holiday open house a couple of years ago.

“Gould is educating the new generation of skilled tradespeople, equipping individuals with the hands-on knowledge and experience they need to thrive entering a trades career path. Medford Wellington shares this vision, which is why we have been supporting Gould for 21 years.,” LaCrosse said.

In short, 2024 had been a milestone year for Medford Wellington filled with growth and new partnerships, with no sign of slowing down in 2025.

Atlas doesn't shy away from challenging projects.  Last year, a Connecticut company called us because new concrete they had poured for their manufacturing floor was failing in spots and was too high in others.  The company that poured the defective floor had no idea how to fix it.  The general contractor called in a consultant to determine the best way to fix the floor and the consultant called Atlas.  

The fix was not easy.  It included shaving concrete, removing sections and a true team effort to keep the dust (from shaving) well above OSHA standards. What was scheduled to be a six- week project turned into three months.  There were many meetings where tensions ran high, solutions seemed nonexistent and it would have been very easy to quit, but Atlas wasn’t going to do that.

Instead, they dug in, using every resource and talking to other flooring companies across the United States to see if they had a similar experience and how and if they resolved it.

Regarding Industry Trends

With the exception of polished concrete, what Atlas does isn’t trendy; it's functional. 

Polished concrete is popular for retail purposes - it looks good when done correctly and is easy to maintain.  It also looks great in a large lighted area like a car dealership showroom or a grocery store.

The functionality of what Atlas does?  They prep floors for their final covering.  This includes, but isn't limited to, removing carpet, carpet glue, VCT tiles, wood and even failed concrete.  Atlas has a machine called a shot blaster that profiles floors - creates a surface that is ready to accept new materials. 

Atlas is a certified installer of Ardex and Dur-A-Flex – self-leveling underlayment for floors.

Construction input prices were unchanged in November compared to the previous month, according to an Associated Builders and Contractors analysis of U.S. Bureau of Labor Statistics’ Producer Price Index data. Nonresidential construction input prices increased 0.1% for the month.

Overall construction input prices are 0.5% higher than a year ago, while nonresidential construction input prices are 0.3% higher. Prices decreased in two of the three energy subcategories last month. Crude petroleum prices were down 3.3%, while unprocessed energy materials prices were down 2.0%. Natural gas prices were up 2.6% in November.

“Construction input prices are up just 0.2% through the first 11 months of 2024,” said ABC Chief Economist Anirban Basu. “However, that encouraging year-to-date price growth primarily reflects declining energy prices and obscures price escalation that has occurred for specific materials. Prices for copper wire and cable and softwood lumber, for instance, are up nearly 12% year over year.

“While input prices have, in total, been well behaved, yesterday’s Consumer Price Index release indicated that economywide inflation reaccelerated in November,” said Basu. “The year-over-year rate of price increase, at 2.7%, remains close to the Federal Reserve’s 2.0% target, yet the recent uptick suggests that inflation may prove more stubborn than previously expected. This rebound in inflation aside, contractors remain optimistic about the coming year, with greater than 60% expecting their sales to increase over the next six months, according to ABC’s Construction Confidence Index.”