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Employment Law Alert: Paid Sick Leave Transition Period
The earned sick time law was approved by the voters on November 4, 2014. This law entitles employees in Massachusetts to earn and use sick time according to certain conditions, and will go into effect July 1, 2015. Massachusetts Attorney General Maura Healey has announced a transition policy under which employers who offer sufficient sick leave or paid time off to workers now have a six-month transition period in which to bring their policies into compliance with the new Massachusetts paid sick leave law.
To learn more about the transition policy, please see our full Employment Law Alert.
Shouldn’t Employers Be Permitted to Prohibit Defamatory or Inappropriate Comments by Employees? New NLRB Report Says No.
It may come as a surprise to many private employers, who often don’t realize that the requirements of the National Labor Relations Act (“NLRA”) apply to non-unionized workplaces. However, in a recently released report the National Labor Relations Board (“NLRB”) addresses the decisions invalidating a variety of handbooks rules found in many employer handbooks.
For more information on how this applies to you read the full alert.
Employers Should Maintain and Enforce Overtime Policies
Both Federal and Massachusetts law require that employers pay their non-exempt employees overtime wages whenever employees work more than 40 hours in a workweek. The law requires that employers pay overtime when they knew or should have known that the employee worked more than 40 hours. As a result, employers can be liable for overtime hours which they did not specifically authorize. Employers can minimize this liability by establishing an overtime policy and a mechanism for requesting and reporting overtime.
Overtime policies should include: who is eligible for overtime; what, if any conditions apply to the authorization of overtime; a specific mechanism for employees to request authorization to work overtime; and a specific mechanism for employees to report overtime hours which have been worked. Any policy should be clearly and conspicuously communicated to employees, and consistently enforced. Managers should not, under any circumstances, instruct employees to falsely record time or avoid reporting overtime hours worked.
Maintaining an overtime policy will not only result in transparent workplace expectations but it could also help an employer defend against an expensive wage and hour claim. In Vitali v. Reit Management and Research, LLC, SUCV2012-00588-BLS1 (Mass Super. June 2, 2014), a Massachusetts employee claimed she had worked through her lunch regularly and as a result often worked more than 40 hours in a workweek, entitling her to overtime. However, her employer had an overtime policy in place which required advanced approval for working overtime, as well as mechanisms for reporting overtime hours, which the employee had not followed despite her familiarity with the policy. The employee presented no evidence that management knew that the employee was working through lunch. Because the employer had clearly communicated rules and policies in place, and because the employee had failed to follow them, the employee was not able to maintain her claim for unpaid wages and the employer escaped a potentially expensive claim.
For more information on overtime policies, please contact a member of our Employment Law Group.
When Will the Proposed Changes to the Overtime Regulations Be Published?
By: Robert M. Shea
In March 2014, one year ago, President Obama signed a Presidential Memorandum directing the U.S. Secretary of Labor to make changes to the federal overtime regulations concerning the “white collar” exemptions to the overtime requirements. The President directed the Secretary to “restore the common sense principles” to the overtime exemptions.
In May 2014, the U.S. Department of Labor announced a target date of November 2014 for publishing the proposed changes. The Department subsequently engaged in meetings with businesses and employees in which it solicited input and ideas, including on raising the minimum required salary level from its current level of $23,660 and adjusting the primary duties test. The Department did not meet its November 2014 target date and, instead, set a new target date of February 2015. The February date has come and gone without publication of the proposed regulations.
Last week, on March 18, the U.S. Secretary of Labor stated that the Department was “working overtime” on the proposed changes and that he “hoped” they would be published this Spring. Once published, the proposed changes will be subject to public comment and, most likely, substantial modification. Consequently, the final revised regulations will most likely not go into effect until sometime in 2016.
We will keep clients updated on the proposed changes. In the meantime, please feel free to contact the Employment Law team with any questions.
10 Points for Reviewing Physician Employment Agreements
By: Scott Connolly
A physician’s employment agreement with a group practice or hospital is an important document. It may set expectations regarding clinical duties, working conditions, the resources the physician needs to treat patients, service locations, and evaluation for ownership (for group practices). These factors will greatly affect the physician’s professional and personal life. A physician’s employment agreement also will establish key contractual obligations for both the physician and the group practice or hospital concerning compensation and benefits, the term of employment, early termination and its consequences, professional liability coverage, patient records, post-termination restrictions, indemnification, and mediation and dispute resolution.
Here are 10 important points that should be carefully reviewed in a physician’s employment agreement.
For more information on this topic, please contact Scott Connolly.
Court Broadly Interprets Ban on Physician Noncompetition Restrictions
In a recent decision, a Massachusetts trial court judge decided that a medical practice could not enforce noncompetition and patient nonsolicitation provisions contained in both an employment agreement and an asset purchase agreement against a physician. This case is the first reported instance where a Massachusetts court has voided such restrictions in an asset purchase agreement.
To read the full article by Scott Connolly.
Employment Attorney Scott Connolly authors “Policies to Guide Employee Conduct and Respond to Misconduct” a chapter in MCLE’s book Drafting Employment Documents in Massachusetts
Scott Connolly, a partner in MBBP’s Employment Law Group, authored the chapter “Policies to Guide Employee Conduct and Respond to Misconduct” in MCLE’s book Drafting Employment Documents in Massachusetts (3rd Edition 2015).
The book is published by MCLE and is an essential resource for Massachusetts employers, employment attorneys, and human resources professionals. Scott’s chapter covers workplace policies that help to guide employee conduct, ensure legal compliance, promote the employer’s cultural values, and respond to misconduct.
Scott has broad experience as both in-house and outside counsel helping employers achieve their business objectives while complying with federal and state employment laws. He guides employers through the full spectrum of issues that arise from the employment relationship, including those issues most likely to lead to litigation such as wage/overtime disputes, employee discipline and performance problems, sexual harassment and other workplace investigations, terminations, and reductions in force.
Scott’s full biography and contact information are available here.
The #1 Type of Employment Claim Filed with the EEOC is Again Retaliation
By: Robert M. Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has just released its statistics for fiscal year 2014 and for the fifth straight year charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 42.8% of the charges filed with the EEOC, up almost two percent from 2013 to the highest percentage ever. Retaliation was followed by race discrimination (35%), gender, including sexual harassment and pregnancy discrimination (29.3%), disability discrimination (28.6%), and age discrimination (23.2%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2014 are found here.
For an explanation of why retaliation claims have become so common, and guidance on steps employers should take to avoid claims, please refer to this March 2013 article.
Please contact the Employment Law team for more information.
Proposed Noncompete Legislation Filed in Massachusetts
By: Robert M. Shea
Several bills that would restrict the use of noncompete agreements were filed in the Massachusetts legislature in January. Two bills (H.730 and H.2157) filed by Rep. Angelo Puppolo and Rep. Sheila Harrington, respectively, use language similar to the California law that bans most employee noncompetes (as well as nonsolicitation agreements) but permits nondisclosure agreements.
Three other bills take a more limited approach. Two bills (H.2332 and S.809) filed by Rep. Lori Erlich and Sen. Will Brownsberger, respectively, are identical to each other and use language similar to that proposed by Governor Patrick last year. These bills are focused on noncompete agreements and do not seek to ban customer (or employee) nonsolicitation agreements or nondisclosure agreements. The bills also would not affect noncompete agreements already in place (that is, the law would not apply retroactively). Another bill (S.334) filed by Sen. Jason Lewis uses almost the same language but would apply retroactively. A sixth bill (H.709) filed by Rep. Garrett Lewis, uses similar language but could be interpreted as barring not just noncompete agreements but all employee restrictive covenant agreements. It would also apply retroactively.
We will keep clients updated on the proposed legislation. In the meantime, please feel free to contact the Employment Law team with any questions.
When was the last time you updated your employee handbook?
It’s important to communicate the policies and expectations regarding employer conduct and with the recent legal developments you are required to make frequent updates to your employee handbook. We’ve outlined several policies that should be reviewed to be sure they are compliant. In addition if these are not in your handbook, they should be added!
To learn what steps employers should take, read the full advisor.
Massachusetts Maternity Leave Becomes Parental Leave on April 7, 2015
Just before leaving office, Governor Patrick signed into law a bill extending the existing Massachusetts Maternity Leave protections to all employees. Now both parents of the child can take advantage of this benefit.
Although the Parental Leave closely tracks the old Maternity Leave some new provisions have been added. One, being that if two employees work for the same employer, they will only be entitled to 8 weeks of parental leave in aggregate for the birth or adoption of a child. In addition an employee on parental leave for adoption is now entitled to the same benefits as an employee on leave for the birth of a child. There is also some interaction with other laws that you should be aware of. To see how this new law could affect you please read the full alert.
If you have any questions, please feel free to contact a member of our Employment Law Group.
New Year Resolutions…Have You Made Yours?
Welcome to 2015! Each year thousands of people make New Year Resolutions to better themselves. They resolve to be happier, healthier, organized, involved in their community, etc. However, often we overlook the workplace when making these new resolutions. That’s why we put together a handful of tips to ensure your employment practices are in order. It’s time to update handbooks and policies, make sure reviews are on schedule for the year and put a “WISP” (Written Information Security Plan) into place if you haven’t already. Ring the year in right, ensure you and your employees are working in a happier, healthier company!
View our Top Ten Employment Tips for 2015!
If you have any questions, please feel free to contact a member of our Employment Law Group.
Voters Approve Ballot Mandating Paid Sick Leave
This month, Massachusetts voters approved a ballot measure regarding employee entitlement to receive paid sick leave. Effective July 2015, employers of eleven or more employees are now required to provide paid sick leave. As a result of the new requirement, both full and part time employees are eligible for up to 40 hours of annual paid sick leave. For purposes of calculating whether an employer falls within the eleven employee threshold, the law considers any person who performs services for wage, remuneration, or other compensation at the status of full-time, part-time, or temporary employees. To ensure compliance, employers who previously did not offer paid sick time should begin the revisions of existing policies and handbooks.
For more information on what this means for employees, please see the full Alert.
If you have any questions, please feel free to contact a member of our Employment Law Group.
Employment Law Clip: Retaliation Claims and Steps Employers Can Take to Avoid Them
According to the federal Equal Employment Opportunity Commission’s (“EEOC”) statistics, 2013 was the fourth straight year when 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 in 2013, up three percent from 2012. Retaliation is now the most common type of discrimination alleged nationally, topping both race and gender. What are retaliation claims and what steps can employers take to reduce their risks?
Still need more information? Try one of our other resources:
- Avoiding Employee Claims of Unlawful Retaliation
- Retaliation Once Again Is the Top Type of Claim Filed with the EEOC
Please feel free to contact any member of our Employment Law Group with any questions.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Visit our YouTube page to see all Employment Law Clip videos.
Employment Law Clip: Non-Compete Agreements & the Material Change Doctrine
The success of a company often relies on its ability to attract and retain key employees, and to safeguard their know-how, customer relationships and trade secrets. To this end, many companies put in place non-competition agreements with their employees at the time of hire and assume that these agreements remain enforceable even if changes occur to the employee’s job. However, recent Massachusetts trial court decisions confirm that is not always so. The “material change doctrine” can be invoked by former employees to void non-competition agreements signed at the inception of employment, which may leave an employer’s customer relationships, i.e., “goodwill,” and confidential proprietary information exposed to misuse and misappropriation. Today, former employees are raising this defense more often and with more success.
In this video Massachusetts Employment Lawyer Christopher J. Perry explains the “material change doctrine” and the importance of carefully considering the potential impact of job changes on the enforceability of non-compete agreements. For more information, see our article: Material Job Changes May Void Employee’s Non-Compete
Please feel free to contact any member of our Employment Law Group with any questions.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.
More MA Legislative Developments in Trade Secrets and Non-Competes
On April 29, the Massachusetts Legislature’s Joint Committee on Labor and Workforce Development favorably reported out a bill which would enact a version of the Uniform Trade Secrets Act (“UTSA”) coupled with a ban on non-competition agreements in Massachusetts. The bill is quite similar to the Patrick Bill we described in our April 15, 2014 Employment Law Alert. This marks the first time that the Joint Committee has favorably reported out a bill to the legislature that would regulate non-competition agreements in the Commonwealth. The current legislative session ends as of July 31, so it remains to be seen if the legislature will take any action on the new bill.
For more information on this topic, please contact Chris Perry.
Employment Law Clip: FLSA Classifications – Salaried Does Not Necessarily Mean Exempt From Overtime
A common misconception is that paying a salary to an employee makes the employee exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). In reality, many salaried employees do not qualify for any exemption from overtime obligations, and relying solely upon whether employees are paid a salary in classifying them as exempt or nonexempt will almost certainly result in misclassifications. In this video Massachusetts Employment Lawyer Maura E. Malone discusses the process of determining whether your employees are exempt or non-exempt and the risks of failing to properly classify them.
Want more information? Try some of our other resources on this topic:
- Wage & Hour Tip: Salaried Does Not Necessarily Mean Exempt From Overtime
- Caution: Administrative Assistants Only Rarely Are Exempt From Overtime Pay
- What Does Paid “On A Salary Basis” Mean?
- New Treble Damages Requirement Makes Compliance
with Wage/Hour Laws Even More Critical - Wage & Hour Tip: Certain Bonuses Must Be Included
When Calculating Overtime Pay
Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.
Employment Law Clip: Internships – Paid or Unpaid?
Student internships have become increasingly popular, and while internships generally benefit employers and interns alike, there is uncertainty regarding whether internships may be paid or unpaid. This video explains the importance of distinguishing between the nonprofit and for profit sector and the regulations that apply to each.
Want more information? Try some of our other resources on this topic:
Please feel free to contact any member of our Employment Law Group with any questions on paid or unpaid internships.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.
Employment Law Clip: Protective Employment Agreements – Protecting Client Relationships & Confidential Information
This video discusses the use of employment agreements to protect client relationships and confidential information. We describe the three types of protective agreements: non-competition agreements, non-solicitation agreements and non-disclosure agreements, and address steps employers should take to put enforceable agreements into place.
Want more information? Try some of our other resources on this topic:
- Enforcing Non-Competition Agreements
- Material Job Changes May Void Employee’s Non-Compete
- ELA: Important Terms to Include in Non-Compete Agreements
- Governor Patrick Administration Supports “Outright Elimination”
of Non-Compete Agreement Enforceability
Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on FLSA requirements for internships.
Employment Law Clip: Employee Terminations Under the MA Wage Payment Law
Massachusetts employers, are you preparing to terminate employees? If so, watch this brief video highlighting important aspects of the Massachusetts Wage Payment Law that you may not be aware of when firing or laying off an employee or employees.
Want more information? Try some of our other resources on this topic:
- Payment of Commissions to Terminated Employees
- MA Wage Act Can Cover Out-of-State Employees
- Complying with the Massachusetts Wage Act as the Law’s Reach and Impact Continue to Expand
- Wage & Hour Laws: Increasing Legal Risks for Businesses
Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Restrictive Employment Agreements.
Massachusetts Employment Law Blog 