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President Issues New Executive Order on Enhanced Unemployment Benefits
On August 8, 2020, President Trump issued four executive orders in response to the COVID-19 pandemic. One of the President’s executive orders (the “EO”) directs the Federal Emergency Management Agency (FEMA) to begin paying additional unemployment benefits from the Department of Homeland Security’s Disaster Relief Fund (DRF) at a rate of $400 per week on top of regular unemployment benefits. The enhanced unemployment benefits will be retroactive to August 1, 2020 and will continue until December 6, 2020 – or until the balance of the DRF drops to $25 billion – whichever happens first. According to the EO, there is currently about $70 billion in the DRF.
The DRF will cover $300 of the $400 weekly enhanced benefit – with states picking up the additional $100 per week from funds allocated to them from the Coronavirus Relief Fund (CRF) (created from the CARES Act).
Like the original benefits provided under the CARES Act, unemployed workers will be eligible for the new $400 per week if they otherwise qualify for regular unemployment compensation, Pandemic Emergency Unemployment Compensation (PEUC) under the CARES Act, Pandemic Unemployment Assistance (PUA) under the CARES Act, Extended Benefits, Short-Time Compensation, or several other discrete programs. However, unlike the previous Federal Pandemic Unemployment Compensation (FPUC) benefits, the EO disqualifies workers receiving less than $100 per week in unemployment benefits. Under the FPUC, workers who received at least $1 in unemployment benefits qualified for the additional $600 per week.
It is unclear when workers may see these enhanced unemployment benefits. While the EO makes clear that workers will be eligible for the enhanced benefits beginning the week ending August 1, 2020 (the FPUC benefits ended July 31, 2020), states will need time to get the new system set up and to receive funding. Once up and running, eligible workers will collect retroactive benefits, but that could be a matter of weeks, or months, in some cases. Like regular unemployment benefits, workers will apply through their individual state’s unemployment office and be subject to that state’s unemployment program requirements, such as any work search criteria.
There is also speculation that the President’s EO may be challenged on constitutional grounds. The EO invokes the President’s powers under the Stafford Disaster Relief and Emergency Assistance Act; however, constitutional scholars debate whether the invoked section can be used to fund unemployment benefits in this manner without the specific authorization of Congress. For now, however, eligible workers should continue to apply for their regular unemployment benefits through their state and comply with any state-specific eligibility requirements to remain qualified for the enhanced benefits.
See our complete COVID-19 Resource Collection.
Morse Barnes-Brown Pendleton Rebrands as Morse
Morse Barnes-Brown Pendleton is pleased to announce the next phase of its brand evolution, reflecting the Firm’s identity within the legal marketplace. Effective immediately, the Firm has adopted the stronger, simpler, more modern brand of Morse. Additionally, mbbp.com will change to morse.law to reflect the Firm’s new moniker. This new identity preserves our 25-year tradition and carries into the future the vision of our founding partners of a unique law firm geared to providing the services that business clients need at the highest levels of the legal profession in a flexible and collegial environment.
Federal Judge Temporarily Blocks New Overtime Rule From Taking Effect On December 1
By: Scott J. Connolly and Sandra E. Kahn
On November 22, a federal judge in Texas issued a preliminary order that temporarily blocks the U.S. Department of Labor (DOL) from implementing changes to the salary basis for white collar overtime exemptions. The new salary rule, which was to become effective on December 1, 2016 would have required employers to increase exempt employees’ minimum salary from $23,660 to $47,476. The preliminary court order blocking the rule appears to apply to all public and private employers nationwide.
Find out how the judge’s order will affect the new salary rule, which was to become effective on December 1. Read this month’s Employment Law Alert.
Massachusetts Pay Equity Law Imposes New Restrictions on Employer Pay and Hiring Practices
By: Maura E. Malone
On August 1, 2016, Massachusetts Governor Charlie Baker signed “An Act to Establish Pay Equity (the Act)” into law. The Act, which does not become effective until July 1, 2018, will require Massachusetts employers to pay men and women equally for comparable work. It also forbids employers from asking prospective employees about salary history or restricting employee discussion of pay. The Act imposes significant consequences for
violations of the law.
The Act will make it unlawful for employers to pay unequal wages to employees of different genders who perform comparable work. The Act broadly defines wages to include “all forms of remuneration for employment.”
Continue reading on the full alert.
Employment Law Alert: Bill Passed on Employee Noncompetition Agreements Reform
By: Yesterday afternoon, the Massachusetts House of Representatives unanimously approved bill H. 4434 which restricts
employee noncompetition agreements. This bill has key modifications 
from original proposals that are important to be aware of, including the “garden leave” clause. The issue will now be headed to the Senate, which has previously been a supporter of noncompete reform.
Read more in the full Employment Law Alert to find out more.
Will We See Non-Compete Reform Enacted This Year?
For the past eight years, legislative efforts to reform 
post-employment noncompetion agreements in Massachusetts have failed. But this year, House Speaker Robert A. DeLeo has signaled his support for H. 4323 and there is buzz that a non-compete bill may
land on Gov. Baker’s desk before the legislative session ends in July.
This bill entitled, “Massachusetts Noncompetition Act” has eight key components in order for a noncompetition agreement to be valid and enforceable. If H. 4323 is enacted, employers will have to quickly and carefully revise their employee restrictive agreements to comply with the new law.
Read the full post here.
New Overtime Regulations Will Result In Many More Workers Becoming Entitled To Overtime
By, Sandra E. Kahn
On May 18, 2016, President Obama announced the publication of the U.S. Department of 
Labor’s final rule (“Final Rule”) updating the overtime regulations, and providing that employees who earn less than $47,476 annually will be entitled to overtime.
The federal Fair Labor Standards Act (“FLSA”) “white collar” exemptions are familiar to most employers. Under the FLSA, employees must be paid the minimum amount required by the statute on a salary basis, and the employee’s job duties must primarily involve executive, administrative, or professional duties. The Final Rule changes only the salary basis test, leaving in place the existing duties test.
For more details, read our full alert and visit our Employment Law Group page.
Are You Responsible for Your Employees’ “Shenanigans” Outside the Office?
As music and beer flow freely this St. Patrick’s Day, employers have good reason to be aware of what “shenanigans” their employees may be up to.
Employers already know that sexual harassment in the workplace is illegal and can result in liability, but employers should also know that under some circumstances sexual harassment outside of the workplace can result in employer liability. Employers are liable for the harassment of employees by managers and persons with supervisory authority, regardless of whether the employer knows of the conduct. Employers are also responsible for harassment committed by non-supervisory employees where the employer knew or should have known about the harassing conduct and failed to take prompt, effective, and reasonable remedial action. As a result, an employer could find itself facing a claim for harassment based on conduct outside the workplace.
The Massachusetts Commission Against Discrimination (MCAD) uses the following factors to assess whether conduct outside the workplace constitutes sexual harassment under M.G.L. c. 151B for which an employer is liable:
- whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employer-sponsored function;
- whether the conduct occurred during work hours;
- the severity of the alleged outside-of-work conduct;
- the work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;
- whether the conduct adversely affected the terms and conditions of the complainant’s employment or
- impacted the complainant’s work environment.
To minimize the risk of liability, employers should be proactive in creating a harassment-free workplace and culture, and raise awareness about the responsibilities supervisors have in responding to inappropriate conduct. Employers can do this by conducting anti-harassment training and by distributing the company’s harassment policy. Distributing the company’s harassment policy isn’t just good practice, it’s the law. Massachusetts requires that employers with six or more employees not only have a sexual harassment policy and give it out to new employees when they start work, but also that an individual copy be distributed to each employee annually.
An employer’s commitment to prohibiting harassment extends to employer sponsored gatherings, including holiday parties where alcohol is served. When planning such events, consider reminding employees of their obligations with regard to harassment in advance, and limiting alcohol consumption through strategies such as using trained professional servers.
Contact a member of the Employment Law Group for more information on employer liability for outside of work behavior, responding to complaints of sexual harassment, and for assistance in creating workplace policies.
Tip of the Month: Implement a Payroll Deductions Policy to Take Advantage of the FLSA “Safe Harbor”
Last month’s Tip of the Month reminded employers that communicating and maintaining an overtime policy can minimize liability for unauthorized overtime hours. This month, we focus on a second way employers can protect against wage and hour liability: the inclusion of a payroll deductions policy to take advantage of the “safe harbor” protection against liability for misclassification of employees based on the failure to pay employees on a salary basis.
As you recall, to be exempt from overtime, an employee must be performing duties recognized as exempt under the Fair Labor Standards Act (“FLSA”) and must be paid on a “salary basis.” To be paid on a “salary basis” the employee must receive a predetermined amount of compensation each pay period (at least $455/week) which cannot be reduced due to variations in the quality or quantity of the employee’s work. An exempt employee must receive the full salary for any week in which the employee performs any work, subject only to certain limited deductions.
Employers jeopardize employees’ exempt status by making improper deductions from salaries. A payroll deductions policy which meets certain requirements provides employers with the opportunity to reduce overtime liability which might otherwise accrue under the FLSA if improper deductions are made and employees are therefore found to be inappropriately treated as exempt.
A payroll deduction policy only provides a safe harbor if the employer: (1) has a “clearly communicated” policy prohibiting improper deductions, including a complaint mechanism; (2) reimburses employees for any improper deductions; and (3) makes a good faith commitment to comply in the future. The safe harbor is not effective where the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.
A good payroll deduction policy should include an explanation of how exempt employees will be paid on a salary basis, with only limited deductions for certain reasons permitted by law, including for social security, taxes, participation in company-sponsored benefit and retirement plans, absence from work for one or more full days taken in compliance with the company’s sickness or disability policy, absence from work which is covered by the Family and Medical Leave Act, absence due to certain types of suspensions, and full or partial days not worked during the initial or terminal week of employment.
For more information on implementing or reviewing a payroll deductions policy, contact a member of the Employment Group.
Immigration Alert: Frequently Asked Questions on the H-1B Cap
The 2016 H-1B Cap season is opened as of April 1st. The U.S. Citizenship & Immigration Service (“CIS”) issued a press release that it anticipates the H-1B Cap will be reached after the first five business days of April. MBBP has assembled a list of FAQs to help employers, and their employees, understand the implications if the H-1B Cap is reached quickly.
To learn about the frequently asked questions regarding the H-1B Cap, please read our full alert from MBBP’s Immigration Department. Please contact a member of the Immigration team, or your MBBP attorney, with any questions.
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.
Immigration Alert: Frequently Asked Questions About H-4 EADs
On February 25, 2015, the U.S. Department of Homeland Security published a final rule allowing H-4 spouses of certain H-1B workers to apply for employment authorization documents (“EADs”). This recent development stems from President Obama’s executive order that he signed on November 21, 2014 to modernize and streamline the U.S. immigrant visa system for the 21st century. In light of this new development, we have assembled the following FAQ to help employers, and their employees, understand the implications of this new regulation.
To learn about the frequently asked questions regarding H-4 EADs, please read our full alert from MBBP’s Immigration Department. Please contact a member of the Immigration team, or your MBBP attorney, with any questions.
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.
Immigration Alert: H-1B season has arrived; Act today
The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. The 2016 H-1B cap will open on April 1st. Given improving economic conditions and increased hiring, we anticipate that demand for the limited number of H-1B visas will vastly exceed supply. As a matter of fact, it’s projected that this year’s cap will reach its limit in the first week. As a result we are advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April (i.e. so the petition is received no later than April 7, 2015).
For information on H-1B visas and when to consider filing a petition read the full alert from MBBP’s Immigration Department. Please contact a member of the Immigration team, or your MBBP attorney, with questions.
Scott Connolly to Speak at BBA Event
On Friday, October 11 MBBP Employment Attorney Scott Connolly and Boston Red Sox Senior Manager of Legal Operations Mandy Petrillo will be co-speaking at the Boston Bar Association (BBA) event “Unpaid Internships: Mitigating Risks and Alternatives“. Entertainment companies traditionally have experienced the most problems related to unpaid internships. Join us for a discussion about avoiding pitfalls when hosting unpaid interns and alternative arrangements.
The event takes place at the BBA and runs from 12:00PM to 1:00PM. Please visit the BBA for more details and to register.
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