On Friday, February 28, 2014, MBBP Employment Attorney Scott Connolly served as a panel speaker at the Massachusetts Continuing Legal Education’s (MCLE) annual seminar on Proving & Valuing Damages in Employment Cases. Among the topics Scott covered from the defense perspective were whether and how to effectively use financial experts at trial, ways for defendants to avoid/minimize punitive damages, limiting emotional distress damages, and whether unemployment benefits should be deducted from back-pay awards. Other members of the distinguished panel were Honorable Peter M. Lauriat, Superior Court Justice, Eugenia M. Guastaferri, Senior Hearing Officer at the Massachusetts Commission Against Discrimination and employee-side advocates Inga S. Bernstein and David E. Belfort. Scott defends clients from employment-related lawsuits before state and federal courts and agencies.
Please feel free to contact Scott with any questions.
Many businesses use “independent contractors” to augment their regular workforce. They see advantages to using trained, non-employee workers with specialized skills who can provide needed services on a short-term or long-term basis.
However, the ability of businesses to classify workers as independent contractors is not unchecked. Businesses cannot avoid employer obligations simply by designating certain workers as independent contractors.
Please feel free to contact any member of MBBP’s Employment Law Group with questions on independent contractors.
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By: Bob Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2013 and for the fourth straight year charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 41.1% of the charges filed with the EEOC, up three percent from 2012. Retaliation was followed by race discrimination (35.3%), gender, including sexual harassment and pregnancy discrimination (29.5%), disability discrimination (27.2%), and age discrimination (22.8%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2013 can be found here.
For more information on this topic please contact any member of our Employment Law Group.
On March 6th the Smaller Business Association of New England (SBANE) is presenting a program titled “Should Employee Non-Competes Be Banned? Business Forum on Proposed Limits to Non-Competes in Massachusetts”. Many businesses require employees to sign non-compete agreements as a condition of employment. Some critics, however, believe the use of non-competes has been abused and should be regulated by statute. MBBP Employment Attorney and SBANE Chair, Bob Shea, will moderate a panel discussion that will include a leading sponsor of proposed non-compete legislation, a Patrick administration point person on the non-compete issues, and business executives. The program will give attendees an opportunity to express views and concerns of businesses regarding the proposed limits and to participate in a serious discussion over how the Commonwealth should proceed on this hotly debated issue.
To learn more or to register for this event, please visit SBANE.
This winter’s polar vortex and its seemingly unending supply of snow and cold raise the question of how to pay exempt and non-exempt employees when an office closes due to inclement weather, and whether deductions from pay for those closures are permitted.
Can you deduct when the office is closed due to weather?
When an employer is forced to close its business for a full day due to weather conditions, the federal Fair Labor Standards Act (“FLSA”) does not require that the employer pay non-exempt employees for that day, even if they were scheduled to work, since the employees are unable to provide any work for that day.
The employer may not, however, take a deduction from an exempt employee’s salary for an inclement weather closure without risking the loss of the employee’s exempt status. (N.B., though, that if the closure lasts for one week or more, then the employer does not need to pay the exempt employees for that week).
Can you deduct when the office is partially closed due to weather?
Although federal law does not require that employers pay non-exempt workers during a partial closure, in some circumstances Massachusetts law may. If a Massachusetts non-exempt employee reports to work but there is no work to be performed, or there is less work than the employee was scheduled to perform, the employee is entitled to “reporting pay” of at least three hours pay at the minimum wage. For example, if the office is closed but an employee wasn’t aware of the closure and reports to work, or if the office closes early because of inclement weather, then a Massachusetts non-exempt employee is entitled to reporting pay.
If the employer’s office is closed for only part of the day due to inclement weather, the employer cannot make a deduction from an exempt employee’s salary without losing the employee’s exemption.
Can you deduct when the office is open but the employee is absent due to weather?
The rules shift slightly when the employer remains open for business but an exempt employee is unable to make it into work due to inclement weather.
Nothing changes in this situation for a non-exempt employee; a non-exempt employee does not need be paid for hours not worked, and so an employer may make a deduction for a weather-related absence.
However, the usual rule that an employer cannot deduct from an exempt employee’s wages without risking the loss of the employee’s exemption changes in this situation. The U.S. Department of Labor (“DOL”) has advised that when an office is open, but an exempt employee is absent due to inclement weather, the Department of Labor will treat the absence as one for “personal reasons” and the employer may deduct that day’s wages from the employee’s salary without losing the employee’s exemption.
Note, however, that this loophole only applies if the exempt employee takes the entire day off for weather-related reasons. An exempt employee who chooses to leave an hour or two early to get a jump on weather-related traffic should not have a deduction taken – to do so would risk the loss of the exemption.
For more information on how to pay exempt and non-exempt employees when an office closes due to inclement weather, please contact a member of the Employment Law Group.
January 2, 2014 was the deadline for the National Labor Relations Board (NLRB) to file a petition with the U.S. Supreme Court to review the appellate court decisions. The NLRB chose not to file a petition, thus effectively abandoning the notice posting requirement. (Note that this does not impact the requirement under Executive Order 13496 that non-exempt federal contractors and subcontractors post a notice informing employees of their NLRA rights.) The NLRB’s website now notes: “Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the [NLRA]. However, employees are free to voluntarily post the notice.”
For more information on what this means for employers, please see the full Alert.
If you have any questions, please feel free to contact a member of MBBP’s Employment Law Group.
By: Bob Shea
Employers in 13 states begin 2014 with higher minimum wage requirements. Now, 21 states have minimum wage rates exceeding the federal minimum wage rate of $7.25 per hour. Here in New England, as of January 1, 2014, Connecticut’s minimum wage rate is $8.70 (and will go to $9.00 on January 1, 2015), Rhode Island’s rate is $8.00, and Vermont’s rate is $8.73. Minimum wage rates in Maine, Massachusetts and New Hampshire remain at $7.50, $8.00, and $7.25, respectively. Also, note New York’s minimum wage rate will go from $8.00 to $8.75 on December 31, 2014 and to $9.00 on December 31, 2015.
Minimum wage increases are also being discussed in several other states, including Massachusetts. Proposed legislation in Massachusetts would increase the minimum wage rate from $8.00 to $11.00 over three years. The minimum wage is also a hot topic on Capitol Hill where Democrats are seeking a significant increase in the federal minimum wage rate, which has been at its current rate of $7.25 per hour since 2009.