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Archive for May, 2019

#MeToo at MCAD

May 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The Massachusetts Commission Against Discrimination (MCAD) recently released its 2018 Annual Report. This Report ­­­features data and other important information about the MCAD’s operations and mission during that calendar year.

According to the 2018 Annual Report, sexual harassment claims filed with the MCAD increased 400 percent in January and February 2018 compared to those months in previous years. As the year went on, however, the number of new sexual harassment filings slowed.

While the Annual Report stops short of theorizing the reasons behind this drop off, the causes may be two-fold. The media coverage of the #MeToo movement, which gained notoriety in the fall of 2017, began to dwindle through late 2018. This decrease in intense media spotlight may have contributed to the number of potential claimants coming forward.

Another more hopeful reason could be that employers became more proactive on sexual harassment issues. The Annual Report noted that the MCAD received an “overwhelming” number of requests for sexual harassment prevention training during early 2018. The result may be that employers are taking stronger and more appropriate positions to both prevent sexual harassment and halt it when it occurs.

But a word of caution: Employers would be reckless to use these statistics as a reason to get lax in their sexual harassment trainings, policies, and procedures. While the media coverage of #MeToo may have faded, protecting employees from harassment is still an ongoing concern. Sexual harassment claims often present significant economic costs to the employer, which could include legal costs, emotional distress damages, and punitive damages. This is on top of the now very significant non-economic and reputational costs for employers which often include being distracting for employees, causing high public damage, and fostering an environment of distrust of leadership when not handled appropriately.

Employers should be conducting at least annual sexual harassment trainings for their workforce, as well as for new hires. Employers should also make sure their handbooks are up to date and lay out a clear and effective procedure for the reporting and handling of harassment claims. These policies should not live in a vacuum and should be re-visited from time to time and adjusted. Most importantly, employers cannot and must not retaliate against employees who raise concerns or file formal complaints.

Do not wait for an incident to take these steps. It is important to open a dialogue among all levels of employees, and set the expectations and values for the employer from the start. When employees feel protected and heard, the employer puts itself in a better position to effectively and appropriately handle harassment claims, and hopefully prevent them altogether.

For more information on the prevention and handling of harassment claims, please contact Matthew Mitchell or Amanda Thibodeau.

UPDATED: Federal District Court Reinstates EEO-1 Pay Data Reporting Requirements (For Now)

May 9, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we previously reported, in March 2019 the U.S. District Court for the District of Columbia issued a ruling concluding that the White House Office of Management and Budget (“OMB”) did not have a sufficient basis to stay pay reporting data requirements (known as “Component 2”) previously announced by the U.S. Equal Employment Opportunity Commission (“EEOC”).

On April 3, 2019 the OMB filed a brief with the U.S. District Court for the District of Columbia proposing a September 30, 2019 deadline for the EEOC to complete the Component 2 pay data collection, which was approved by the Court later that month.

On May 1, 2019, the EEOC announced it expects to begin collecting the Component 2 pay data for both 2017 and 2018 calendar years in mid-July 2019 in anticipation of the September 30, 2019 deadline. The EEOC expects to open a submission portal for employers to submit that data this summer. A copy of the published announcement can be found here.

Employers are still expected to submit their 2018 Component 1 data by the May 31, 2019 deadline.

The Morse Employment Law Group will continue to monitor this issue and provide updates as they become available.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Massachusetts Paid Family and Medical Leave Update: Department EXTENDS Deadlines for Employee Notice and Private Plan Compliance Obligations 

May 3, 2019 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

As we have reported, although the employee benefits provisions of the Massachusetts Paid Medical and Family Leave Law (the “PFML”) do not go into effect until 2021, employer compliance obligations under the PFML were scheduled to start as early as the spring of 2019.  In an effort to address employer concerns related to the roll-out of the PFML, on May 1, 2019, the Massachusetts Department of Family and Medical Leave (the “Department”), the state agency charged with administering the PFML, extended employer deadlines with respect to two key compliance hurdles: (i) Private Plan Exemption Applications; and (ii) Employee Notice Requirements.

A description of these specific compliance obligations, and the new deadlines that apply to them, are as follows:

Private Plan Exemptions

As we have previously reported, the PFML establishes a publically-administered, paid family and medical leave benefits program in Massachusetts (the “Program”).  Commencing in 2021, workers who qualify for PFML leave are entitled to certain insurance payments, distributed from a state-administered Family and Employment Security Trust Fund (the “Fund”), and financed through payroll tax contributions.  In order to “pre-finance” the Program, on July 1, 2019, employers must begin to make contributions to the Fund, through payroll deductions, at certain defined rates.

The PFML does, however, provide to carve to the payroll contribution requirement: Employers that offer a private medical and family leave plan to their employees, with the same or greater benefits as the PFML, may apply for an exemption from the payroll contribution requirements of the Program. The Department, through MassTaxConnect, began accepting private plan exemption applications on April 21, 2019.

As originally instructed by the Department, in order to be relieved from the payroll contribution requirement for the initial July 2019 – September 2019 quarter, employers were required to obtain private plan exemption approval before June 30, 2019.  In order to permit employers additional time to explore private plan options, the Department has extended the date to apply for a private plan exemption for this initial quarter to September 20, 2019.

The Department will continue to accept applications, on a rolling basis, after the September 20, 2019 deadline. However, if an exemption application is approved after September 20, 2019, the employer will remain responsible for remitting payroll contributions for the July 2019 – September 2019 quarter, with the exemption becoming effective in calendar quarter after the application is approved.

Employee Notice Requirements

The PFML requires that employers provide clear and advance notice, to their workforces, of the rights provided under the law. This requirement includes: (a) providing employees and independent contractors with so-called “Written Information Notices;” and (b) posting approved Workplace Posters.

On April 17, 2019, the Department published template Written Information Notices and Workplace Posters forms here (https://www.mass.gov/info-details/informing-your-workforce-about-paid-family-and-medical-leave). A deadline for distributing Written Information Notice and Workplace Posters to employees was set for May 31, 2019.

In response to employer concerns, the Department has extended the deadline for the Written Information Notices (and presumably the Workplace Poster deadline) to June 30, 2019. In extending the deadline, the Department also emphasized the following details with respect to the compliance requirements related to the Written Information Notices:

  • The Written Information Notice must be provided to all employees and independent contractors, engaged by the employer as of June 30, 2019.
  • The Written Information Notice may be provided electronically, but must include the opportunity for an employee or independent contractor to acknowledge receipt or decline to acknowledge receipt of the information. The employer can receive these acknowledgments in paper form or electronically.
  • In the event that an employee or independent contractor fails to acknowledge receipt, the Department shall consider an employer to have fulfilled its notice obligation if it can establish that it provided to each member of its current workforce notice and the opportunity to acknowledge or decline to acknowledge receipt.
  • With respect to providing Written Information Notices to W2 employees:

– The Employer must issue a Written Information Notice to each employee within 30 days of their first day of employment. The Written Information Notice must be written in the employee’s primary language.

– Employers may use the Department template or create a customized Written Information Notice for distribution to employees. If an employer elects to customize a Written Information Notice, the custom notice must contain:

– An explanation of the availability of family and medical leave benefits

– The employee’s contribution amount and obligations

– The employer’s contribution amount and obligations

– The employer’s name and mailing address

– The employer identification number assigned by the Department

– Instructions on how to file a claim for family and medical leave benefits

– The mailing address, email address, and telephone number of the Department.

  • With respect to providing Written Information Notices to Independent Contractors:

– The Employer must issue a Written Information Notice to each independent contractor, when the employer enters into the contract for services. The Written Information Notice must be written in the independent contractor’s primary language.

– Employers may use the Department template or create a customized Written Information Notice for distribution to independent contractors. If an employer elects to customize a Written Information Notice, the custom notice must contain:

– An explanation of the availability of family and medical leave benefits, and the procedures for independent contractors to become covered individuals under the PFML.

– The independent contractor’s contribution amount and obligations if they were to become a “covered” individual under the PFML.

– The employer’s contribution amount and obligations.

– The employer’s name, mailing address, and email address.

– The employer’s identification number assigned by the Department.

– Instructions on how to file a claim for family and medical leave benefits.

– The address and telephone number of the Department.

Failure to provide these required notifications may result in fines of up to $300 per violation.

For more information on the PFML, please contact Matthew Mitchell or Amanda Thibodeau.