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MA Governor Extends Non-Essential Business Closings Until May 18, 2020

April 29, 2020 Leave a comment

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

Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 18. His previous order closed non-essential businesses until May 4. The press release can be found here.

Along with extending the closure of non-essential businesses, the order also extends the stay-at-home advisory, urging residents to stay at home and limiting all gatherings to 10 people or less until May 18.

Governor Baker also appointed a 17-person re-opening advisory board who will plan a phased re-opening of the state. The new board is comprised of leaders from government, business, and healthcare sectors.

The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate. You can find our complete COVID-19 resource collection here.

MA Governor Extends Non-Essential Business Closings Until May 4, 2020

April 1, 2020 Leave a comment

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

Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 4. His previous order closed non-essential businesses until April 7.

The new emergency order will take effect at noon on Wednesday, April 1. Governor Baker also extended his order limiting all gatherings to 10 people or less until May 4.

Governor Baker also updated the “COVID-19 Essential Services” list, based on new federal guidance. The new list will also go into effect on April 1 at noon. See the updated list on essential businesses.

The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate.

IRS, DOL, and Treasury Issue Plan on Implementation of Payroll Tax Credit, Paid Leave and Other Employment-Related Provisions of the Families First Coronavirus Response Act

March 24, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The Internal Revenue Service (IRS), U.S. Department of Labor (DOL), and U.S. Treasury Department issued a joint statement highlighting the employment-related provisions of the Families First Coronavirus Response Act (“the Act”), which was signed into law by President Trump on March 18, 2020 (see our previous alert on this subject here).  The three departments offered a preview for small and mid-size businesses related to the implementation of these various provisions.  A summary of their highlights is below.

  • DOL plans to release regulations relating to the Act by April.  While employers are not required to comply with the Act until April 2, the DOL and IRS made clear that employers, unless exempted, may begin to provide paid leave under the Act and take advantage of the available tax credits immediately.  The anticipated regulations will provide further guidance on the sick and child care leave requirements of the Act.
  • DOL plans to release emergency guidance related to small business exemptions related to leave.  The Act provides an exemption for businesses with less than 50 employees from leave requirements related to school and daycare closings where the leave requirements would threaten the viability of the business.  The DOL plans to issue guidance with “simple and clear criteria” on the qualifications related to this exemption.
  • DOL will be issuing a temporary non-enforcement policy to allow employers to come into compliance.  Under the temporary policy, the DOL will not bring enforcement actions against employers for violations of the Act, but instead will work with employers to assist in compliance with the Act, provided the employer has acted reasonably and in good faith.
  • The IRS will be releasing guidance later this week about how employers can obtain the tax credits related to providing sick or child care leave.  In short, employers will obtain the credit by withholding the amount of money equal to the cost of leave provided from their payroll taxes, rather than depositing with the IRS.  If the amount withheld is not enough to cover the paid leave provided, employers will be able to file a request for payment on an accelerated basis, to be processed in two weeks or less.  The IRS will release further details on the procedure in their anticipated guidance.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”

March 24, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)The federal Equal Employment Opportunity Commission (the “EEOC”) has issued revised guidelines that define Americans with Disabilities Act (“ADA”) compliance standards for employers operating under current COVID-19 pandemic conditions.

In general, the ADA broadly restricts business decisions that consider employee health or medical conditions.  Through the guidelines, the EEOC has temporarily suspended certain ADA restrictions in an effort to permit “Essential Businesses” – businesses that are exempted from various shelter-in-place and business restrictions order now in effect in several regions – to adopt practical strategies to maintain safe business operations.

Revised EEOC guidelines.

Several of the key concepts are below:

  • With respect to employee inquiries regarding COVID-19 symptoms: “An employer may send home an employee with COVID-19 or symptoms associated with it.  Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.”
  • With respect to workplace infection control strategies: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.  Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.”
  • With respect to reasonable accommodation requests by employees that are unrelated to COVID-19: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation.  Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted.  Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
  • With respect to hiring practices during COVID-19 pandemic: “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.”

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Massachusetts Governor Orders “Non-Essential” Businesses To Close Physical Workplaces By Tuesday, March 24

March 23, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)On March 23, 2020, Massachusetts Governor Charlie Baker issued an Emergency Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public.

The Emergency Order goes into effect on Tuesday, March 24th at noon, and remains in effect until Tuesday, April 7th, or until otherwise ordered.

Please refer to the list of “COVID-19 Essential Services” that are exempted from the Emergency Order.

Businesses that are designated as “Essential” are directed to follow social distancing protocols for workers in accordance with guidance from the Massachusetts Department of Public Health, as aggregated at the following sites:

COVID-19 Prevention and Treatment

COVID-19 Guidance and Directives

Revised Guidance Regarding The Order By The Governor Prohibiting Assemblages Of More Than 10 People And On-Premises Consumption Of Food And Beverages

Businesses and organizations not on the list of essential services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at workplace premises impacted by the Emergency Order.

Information concerning this Emergency Order is developing.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Resources for Employers Managing the Impact of COVID-19

March 20, 2020 Leave a comment

2015-01-05_8-57-41By: Amanda E. Thibodeau

COVID-19 is causing significant disruption at every level of business – and responses are varying and evolving rapidly. Morse is monitoring the situation closely on behalf of our clients. To help keep you as up to date as possible, below we provide some helpful federal and state resources to help you and your business keep up on the latest as well.

  • Equal Employment Opportunity Commission (EEOC)
  • The U.S. Department of Labor (DOL)
  • Massachusetts Attorney General’s Office
  • Massachusetts Department of Unemployment Assistance (DUA)

See our website for additional information regarding these resources.

Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs

March 19, 2020 Leave a comment

2015-01-05_8-57-41By: Matthew Mitchell

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which aggregates several new laws that apply to private-sector employers and employees affected by Coronavirus-related work disruptions.
The Act takes effect no later than 15 days after enactment, and remains in place until December 31, 2020.
Two significant provisions of the Act include: The Emergency Family and Medical Leave Expansion Act (The “EFMLEA”) and The Emergency Paid Sick Leave Act (The “EPSLA”).
Read more about these new laws in our latest Employment Law Alert.

Governor Issues Emergency Orders that Require Most MA Employers to Modify Business Operations

March 16, 2020 Leave a comment

2015-01-05_8-57-41On Sunday, March 15, 2020, Massachusetts Governor Charlie Baker announced emergency orders in response to the Coronavirus outbreak, that directly affect Massachusetts employers.

Specifically, the Governor directed, in material part:

  • A suspension of educational operations at all public and private elementary and secondary schools in the Commonwealth;
  • A prohibition of gatherings of over 25 people, including, but not limited to, community, civic, public, leisure, faith-based events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs, festivals, and any similar event or activity that brings together 25 or more persons in a single room or single space. (This prohibition expressly prohibits gatherings of more than 25 people in open work spaces, such as conference rooms.)

The Governor’s emergency orders take effect on Tuesday, March 17, 2020, and are scheduled to remain in place through April 5, 2020, unless otherwise ordered.

Read the following Employment Law Alert for more information.

Read the following article on Force Majeure in Light of the Coronavirus Outbreak.

Coronavirus Response Update – March 13, 2020

March 13, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

The Coronavirus outbreak is creating unprecedented challenges for employers. Existing employment law standards and structures do not contemplate our present circumstances, and employers are increasingly faced with novel questions with respect to employee relations.

We are beginning to see some clarity on the subject, however. As government and organizational actors begin to deploy response strategies, best employment practices regarding Coronavirus concerns are emerging.

Matthew Mitchell provides answers to several common questions regarding the Coronavirus in the following COVID-19 Client Alert.

The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.

Coronavirus Response Update – March 12, 2020

March 12, 2020 Leave a comment

In recent days, we have seen increased incidents of COVID-19 infections in Massachusetts and around the United States, and extraordinary actions from federal, state, and organizational actors in response to the outbreak – including the announcement by the White House last evening of a European travel ban, and the proposed suspension of all Social Security payroll taxes.

We are fielding many inquiries from concerned and confused private-sector clients concerning appropriate response strategies.

As outlined in our prior Alert on the subject, it should be emphasized that, at this time, there are no legal directives, related to Coronavirus, that apply generally to restrict the business operations of private-sector employers.  Rather, there are government-issued guidelines and recommendations that place the burden on employers to adopt their own common-sense measures, within existing legal rules.  For example:

That said, it has been reported that Federal and state governments are now considering emergency orders that would regulate and limit operations of private-sector employers, including directives that would require temporary closures of some workplaces.  As such, we believe it is prudent that employers begin now to plan for such contingencies.

The Morse Employment Law Team is following this topic closely.  Please contact us should you have any questions.

Coronavirus Response Update – March 11, 2020

March 11, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

In response to increased incidents of COVID-19 infections in the Commonwealth, on Tuesday, March 10, 2020, Governor Charlie Baker declared a State of Emergency in Massachusetts. The State of Emergency declaration is, in essence, an activation of the Governor’s emergency powers – meaning that the Governor may now order certain directives and allocate certain resources, to respond to the Coronavirus outbreak, outside of regular legislative processes.

The Governor has issued a directive that applies to the Commonwealth’s Executive Branch. Matthew Mitchell explains what this directive to public-sector employers entails in the following client alert.

The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.

3/6/20 – Client Alert: Recommended Employer Response to the Coronavirus

March 6, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

The spread of coronavirus (COVID-19), and its effects on business markets, travel, and public health, are dominating the news cycle. As this public health emergency continues to develop, it is critical that employers adopt measured policies that promote safe working environments, and that employers identify and execute on strategies to limit business interruptions.

The Centers for Disease Control and Prevention (“CDC”) has released an interim guidance for private sector employers that relates to the management of coronavirus concerns. The core themes of the guidance include: promoting use of sick time, cleaning work spaces and encouraging good hygiene, restricting travel, etc.

Read Amanda Thibodeau’s client alert for more information and further guidance on the management of coronavirus concerns.

A New Year’s Reminder: Discretionary, End-Of-Year Bonuses and the Massachusetts Equal Pay Act

January 8, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

The discretionary, end-of-year bonus is the most common form of incentive compensation. When executed well, the discretionary bonus provides employers with the opportunity to reward employee success. However, when executed poorly, even a well-intentioned discretionary bonus may result in significant employment law liability.

The recent passage of the Massachusetts Equal Pay Act, M.G.L. c. 149, §105A (the “Act”), complicates the compliance landscape that applies to discretionary bonuses.  As January bonus season kicks off, employers are well-served to understand the restrictions that the Act imposes on discretionary bonuses.

Review our Employment Team’s recent Employment Law Alert to learn how the Act regulates the type of compensation structures employers may apply to their Massachusetts employees.

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

New Minimum Wage Rate for Massachusetts Employees Effective January 1, 2020

January 6, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

With the new year comes a new minimum wage rate for Massachusetts non-exempt employees.  As of January 1, 2020 the minimum wage rate is now $12.75 per hour, and $4.95 per hour for tipped employees.  Employers with Massachusetts-based non-exempt employees should update their payroll provider to reflect the increase – and be sure to use the new rate when calculating any earned overtime.

The change comes from a 2018 bill signed by Governor Baker that gradually increases the minimum wage rate until it reaches $15.00 per hour in 2023 ($6.75 per hour for tipped employees).

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

Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers

July 10, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Employment attorney Amanda Thibodeau will be speaking on the MCLE program Employment Law Issues for Gig Workers, being held on Tuesday, July 30. The program will provide an overview of the current state of the law, how various governing bodies on the state and federal levels have grappled with companies and workers in the gig economy, and how each side can protect themselves and navigate changing employment laws in this arena. The agenda will include topics of discussion such as:

  • What is the “Gig Economy” and which employers and workers fall into this category
  • Overview of classifications of workers and legal consequences of misclassification
  • Reviewing recent state and federal guidance on classification issues
  • Reviewing states’ legislative responses governing gig employment
  • Understanding other common employment issues in the gig economy
  • Understanding how a gig business can mitigate its risks and what workers should do to protect themselves

For more information and to register, view the MCLE event page.

Massachusetts Paid Family and Medical Leave Update: Governor Baker and Legislative Leaders Issue Joint Statement Delaying Employer Contributions

June 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

On June 11, 2019, Massachusetts government leaders announced their intent to amend the Massachusetts Paid Family and Medical Leave Act (the “PFMLA”) to delay the employer payroll tax contribution start date, required by the PFMLA, to October 1, 2019 (from the prior start date of July 1, 2019). In connection with the announcement, Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo issued the following joint statement:

“To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.”

The announcement appears to be a response to concerns raised by industry groups related to compliance deadlines associated with the rollout of PFMLA. The changes to the PFMLA described in the announcement still require confirmation by both the House and Senate, and the scope of the other “technical changes” to the PFMLA anticipated in the announcement remains unclear.

Morse is monitoring developments concerning the PFMLA, and will provide further updates as appropriate. For additional information concerning the PFMLA, please see Morse’s prior alerts on the subject:

Massachusetts Paid Family and Medical Leave Update: Department Sets May 31, 2019 Deadline for Employers to Comply with Notice Requirements

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

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

DOL Issues Opinion Letter Classifying Workers in the Gig Economy As Independent Contractors

June 6, 2019 Leave a comment

2015-01-05_8-57-41The U.S. Department of Labor (DOL) recently issued an Opinion Letter analyzing the classification of workers in the virtual marketplace or “gig economy.” This refers to companies that operate in the “on-demand” or “sharing” economy, using online and smartphone applications to connect consumers to service providers in a wide variety of services, such as transportation, cleaning, delivery, and shopping.

The DOL was asked to analyze the classification of such service providers under the Federal Labor Standards Act (FLSA), ultimately deciding that based upon the facts provided by the unidentified company in question, the service providers were independent contractors.

This is vitally important in that independent contractors are not afforded the same protections under the FLSA as employees. For example, employees are entitled to minimum wage, overtime pay, and other benefits under the FLSA, while independent contractors are not. Continue reading in our Employment Law Alert.

#MeToo at MCAD

May 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda 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.

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.

SUMMER IS COMING: Massachusetts Compliance Requirements with Respect to Summer Internship Programs

April 29, 2019 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

For the Morse Employment Law Group, the arrival of spring is marked, not by the blooming of vernal flowers, but, rather, by the steady increase of inquiries related to summer interns.

A summer internship program is often an important component of an employer’s annual business cycle: internships help connect an employer to its surrounding academic communities; internships can facilitate an employer’s civic engagement; and such programs can serve as an efficient recruitment tool, particularly in tight job markets. Despite the prevalence and value of such programs, some employers tend to see their summer interns as “casual” or “unregulated” employees. It should be noted, however, that the employment of summer interns, particularly with respect to interns who are under age 18, is a highly regulated area of Massachusetts law.

Below are a few key concepts to keep in mind:

Paid versus Unpaid Interns

Massachusetts employers must compensate their interns – at, at least, a minimum wage rate – for work performed, unless the internship program qualifies as a “training program in a charitable, educational or religious institution.” The Massachusetts Attorney General and the Massachusetts Department of Labor Standards have interpreted this standard, narrowly, to mean that an employer may not engage an intern on an unpaid basis, unless the following factors are strictly met:

  • The internship is tied to the intern’s formal education program by integrated coursework, or the receipt of academic credit.
  • The intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  • The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

As such, absent very limited circumstances, Massachusetts employers must pay their interns.

School-Aged Interns

Offering internship opportunities to minor children adds another layer of regulatory complexity:

  • Massachusetts child labor laws limit the hours a worker who is under age 18 may work, and limit the types of job functions such workers may perform. In fact, there are at least 49 discrete laws that define and limit, very specifically, the type of work employees under age 18 may engage in. For example:  workers under age 18 may not be employed in jobs that require the operation of electrical machinery; workers under age 16 may not be employed in a manufacturing facility.
  • Massachusetts law requires employers to obtain Youth Employment Permits (work permits) for all workers under 18. In Massachusetts, children under 14 may not work at all, except in very limited cases.
  • In Massachusetts, workers under 18 may not enter into contractual restrictions (such as non-disclosure or assignment of invention clauses), without parental consent, and may not be subject to non-competition agreements at all.
  • There may be enhanced workers’ compensation premium obligations and benefit protections for workers under age 18, depending on the circumstances.

***

To the extent that you are considering engaging summer interns this year, we recommend a brief consultation with a member of the Morse Employment Law Group. As with all matters related to Wage and Hour laws, a non-compliant summer internship program may result in significant penalties and litigation liability.

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