#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.

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.

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.

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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.

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

April 25, 2019 Leave a comment

2015-01-05_8-57-41As 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 begin as early as the spring of 2019.  A number of these early compliance hurdles flow from the PFML’s 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 Massachusetts Department of Family and Medical Leave (the “Department”), the state agency charged with administering the PFML, published template Written Information Notices and Workplace Posters forms here. In connection with the publication of these templates, the Department instructed that employers must provide their workforces with the compliant Written Information Notices (and presumably post compliant Workplace Posters) by May 31, 2019. The Department also provided 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 May 31, 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.

Morse Barnes-Brown Pendleton Rebrands as Morse

April 24, 2019 Leave a comment

Morse_Logo_CMYKMorse 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.

Read the full announcement on our website.

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Department of Labor Proposes New Interpretation of Joint Employer Status Under The Fair Labor Standards Act

April 9, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

On April 9, 2019, the United States Department of Labor (“DOL”) published a notice of proposed rulemaking (the “NPRM”) to amend its existing regulations regarding so-called “joint employer” status under the federal Fair Labor Standards Act (the “FLSA” or the “Act”).

The FLSA requires covered “employers” to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 hours in a workweek.  The Act also contemplates scenarios in which other “persons,” in addition to the nominal employer, may be jointly liable for wages due to an employee under the Act.  This concept is generally known as joint employer wage liability (although the term “joint employer” is not specifically used in the language of the FLSA).  Joint employer status under the FLSA implicates questions such as:

  • Is a franchiser liable for the wage obligations of its franchisees?
  • Is an institutional investor liable for the wage obligations of its portfolio businesses?
  • Is a parent corporation liable for the wage obligations of its subsidiaries?

In 1958, the DOL issued regulations interpreting joint employer status under the Act.  Those regulations instructed that multiple persons or entities may be jointly liable for wage obligations due to an employee if they are “not completely disassociated with” respect to the employment of an employee.  This open-ended standard, which remains the current DOL benchmark on the subject, has been the subject to debate for nearly sixty years.

The DOL indicates that the purpose of the NPRM is to make the determination of joint employer status under the FLSA “simpler and more consistent.”

A New Test For Joint Liability Status

The NPRM proposes a four-factored test to determine when a person or entity shares wage liability for an employee with the nominal employer.  The four factors are whether the person or business entity:

  • hires or fires the employee;
  • supervises and controls the employee’s work schedule or conditions of employment;
  • determines the employee’s rate and method of payment; and
  • maintains the employee’s employment records.

The NPRM clarifies that that “the potential joint employer must actually exercise . . . one or more of these indicia of control to be jointly liable under the Act.” (Emphasis supplied).  The reserved, but unexercised, contractual right to act in relation to an employee “is not relevant for determining joint employer status.”   In addition, the NPRM provides a set of examples that illustrate the limits of the four-factor test:

  • The potential joint employer’s business model—for example, operating as a franchisor—does not make joint employer status more or less likely under the Act.
  • The potential joint employer’s contractual agreements with the employer requiring the employer to, for example, set a wage floor, institute sexual harassment policies, establish workplace safety practices, require morality clauses, adopt similar generalized business practices, or otherwise comply with the law, do not make joint employer status more or less likely under the Act.
  • The potential joint employer’s practice of providing a sample employee handbook, or other forms, to the employer; allowing the employer to operate a business on its premises (including “store within a store” arrangements); offering an association health plan or association retirement plan to the employer or participating in such a plan with the employer; jointly participating in an apprenticeship program with the employer; or any other similar business practice, does not make joint employer status more or less likely under the Act.

What’s Next?

It should be noted that NPRM is a proposal.  The DOL is now soliciting comments from interested parties with respect to the NPRM, and will begin the process of developing a final rule on the subject.  Whether the DOL ultimately adopts the rules proposed in the NPRM is unclear.  What is clear is that the DOL is focused on clarifying standards with respect to this contentious area of employment law.  Morse will continue to monitor, and report on this subject.

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Morse’s Employment Law Group regularly advises clients with respect to compliance with the Fair Labor Standards Act and its developments.

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