Time Spent In Security Screenings Does Not Have To Be Compensated – The U.S. Supreme Court’s Decision in Integrity Staffing v. Busk
The question of when an employee’s compensable work for the day begins and ends is one which can be more complicated than it seems at first glance. Does an employee who checks email before driving to work have to be compensated for that time? Will an employer have to pay an employee for the time it takes to park in a remote lot and take a shuttle bus to work? The U.S. Supreme Court weighed in on this subject in its recent decision in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (December 9, 2014), where it ruled unanimously that employees did not have to be paid for the time they spent waiting to undergo and then undergoing security screenings before leaving the workplace each day. In this class action case, the employees were hourly workers who worked in two different warehouses. Their duties involved retrieving products from shelves and packaging the products for delivery to Amazon customers, and at the end of the day, were required to undergo a security screening which included removing their wallets, keys and belts, and going through a metal detector. The employees complained that they were forced to spend up to twenty-five minutes a day in this screening process, and argued that under the Fair Labor Standards Act (“FLSA”) they should be compensated for this time.
Please see this month’s Employment Law Alert for further details.
Feel free to contact any member of our Employment Law Group with any questions.
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.
Employers Face Wage & Hour Risks When Terminating Employees
This summer, the family-owned grocery store chain Market Basket has been engaged in a contentious and public dispute over ownership and control of the chain. As a result, thousands of jobs have hung in the balance. In a joint letter, the Attorneys General of Massachusetts and New Hampshire recently used the dispute to remind Market Basket of its legal obligations to employees. The joint letter applies to employers generally, and provides a helpful synopsis of some of the obligations and risks involved in employee terminations.
For further information or questions about employee terminations, contact a member of our Employment Law Group.
Massachusetts’ Minimum Wage Set to Increase
The minimum wage in Massachusetts is set to increase on January 1, 2015 for the first time since 2008. On June 26, 2014, Governor Deval Patrick signed a bill into law which will raise the hourly minimum wage for non-tipped employees from $8.00 an hour as follows:
- Beginning January 1, 2015, to $9.00.
- Beginning January 1, 2016, to $10.00.
- Beginning January 1, 2017, to $11.00.
The hourly minimum cash wage for tipped workers will increase from $2.63 to $3.00 an hour on January 1, 2015, and again to $3.75 an hour on January 1, 2017. As a result of these increases, Massachusetts’ minimum wage will be amongst the highest in the country.
Compliance with Massachusetts’ minimum wage laws is important since the failure to do so will result in a violation of the Massachusetts “Payment of Wages” statute, M.G.L. c.149, §148 (the “Wage Act”). Violations of the Wage Act carry a high price and are subject to mandatory treble (triple) damages and attorney’s fees, even if an employer has acted in good faith. Wage Act violations can also result in criminal penalties and civil liability for the employer as well for as the president, treasurer, and individual “officers and agents” of the employer.
For more information on the Massachusetts minimum wage increase or wage and hour compliance generally, contact a member of the 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.
Patrick Administration Seeks to Ban Non-Compete Agreements
During the past several years, there have been various legislative initiatives in Massachusetts which, if successful, would have regulated and/or curtailed the use by employers of non-competition agreements. On September 10, 2013, in testimony before the Massachusetts Legislature’s Joint Committee on Labor and Workforce Development, Gregory Bialecki, Governor Patrick’s Secretary of Housing and Workforce Development, testified that the Patrick Administration supports the “outright elimination of enforceability” of all non-compete agreements in Massachusetts, regardless of duration or geographic scope. Secretary Bialecki’s testimony finally confirmed publicly what many assumed was the Patrick Administration’s position on this controversial subject.
Last Thursday, the Patrick Administration took a bigger step towards its goal of eliminating non-compete agreements by way of an economic stimulus bill that includes a proposed new Chapter 93K to enact the Uniform Trade Secrets Act (“UTSA”) in Massachusetts. The proposed Chapter also includes a provision which would render “void and unenforceable” any non-compete agreement with an employee or independent contractor.
For more information on what this means for employers, please see the full Alert.
If you have any questions, please feel free to contact a member of MBBP’s Employment Law Group.
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.
Will Your Interns Sue You for Unpaid Wages?
The end of last summer’s internship season was marked by a wave of class-action lawsuits filed by interns against entertainment, sports, and publishing companies. The interns sued for unpaid wages and overtime claiming that they in reality were employees of these companies. These much publicized lawsuits, including those against Condé Nast Publications, Fox Searchlight Pictures, Inc., Hearst Corporation, and Sean “Diddy” Combs’s Bad Boy Entertainment, led many businesses to end their internship programs altogether. Here is what you must know before allowing an unpaid intern to “work” for your for-profit business.
An intern for a for-profit business must be paid unless the internship meets the requirements of the narrow “learner/trainee” exemption under the federal Fair Labor Standards Act (“FLSA”), the law governing payment of minimum wages and overtime. Failure to meet this narrow exemption could result in costly litigation and possibly significant liability; some of the businesses recently sued have had thousands of interns in the purported “class” of plaintiffs.
The U.S. Department of Labor (the “DOL”) applies a six-criteria test to unpaid interns at private-sector, for-profit businesses to determine whether the “learner/trainee” exemption is met. The DOL’s six criteria are:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
This test may be hard for a for-profit business to pass if it receives an advantage from the services of the intern, for example if the intern performs low-level administrative and clerical tasks. Although most courts have applied a more flexible test, a number of courts have deferred to the DOL’s more stringent test, which in turn has prompted the wave of recent lawsuits. To avoid claims, companies in doubt about whether they will pass the DOL’s test should pay their interns at least minimum wage (and overtime unless they restrict interns from “working” for more than 40 hours per week) and keep accurate records of the interns’ time “worked.”
For more information on this topic, and other information about having an internship program, please contact a member of the Employment Practice Group.
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.
Are Your Commissioned Sales Employees Entitled to Minimum Wage and Overtime?
Many employers use commission payments to increase the productivity of their sales force. Commissioned sales people can earn significant compensation. But, are commissioned sales people also entitled to minimum wage and overtime?
The federal Fair Labor Standards Act(FLSA) establishes a minimum wage and requires that employers pay overtime, or 1.5 times the employee’s regular rate of pay, to employees who work more than 40 hours in a workweek. The FLSA’s minimum wage and overtime requirements apply to all employees, including commissioned employees, unless the employee comes within one of the statutory exemptions to the FLSA.
Many commissioned sales employees come within one of two statutory exemptions to the FLSA, the “outside sales exemption” or the “inside/retail sales exemption.” An employee is exempt under the outside sales exemption if the employee’s primary duty is making sales or obtaining orders or contracts for services or the use of facilities from paying clients or customers, and the employee is customarily and regularly engaged away from the employer’s place of business. Qualified outside sales people are exempt from both minimum wage and overtime requirements.
Commissioned sales people employed by a retail or service establishment are exempt from overtime (but not minimum wage) under the inside/retail sales exemption if (1) the employee’s regular rate of pay (including commissions) exceeds one and one-half times minimum wage and (2) more than half the employee’s total earnings are in the form of commissions.
If a commissioned sales employee does not come within one of these two narrowly defined exemptions (sales people will usuallynotqualify for other FLSA exemptions) the sales employee is not exempt and is entitled to overtime on top of commissions.
For help determining whether your sales force is exempt, or for more information on this topic, please contact a member of our Employment Law Group.
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.
Scott Connolly Speaks at MCLE Employment Seminar
On Friday, February 28, 2014, MBBP Employment Attorney Scott Connolly served as a panel speaker at the Massachusetts Continuing Legal Education’s (MCLE) annual seminar on Proving & Valuing Damages in Employment Cases. Among the topics Scott covered from the defense perspective were whether and how to effectively use financial experts at trial, ways for defendants to avoid/minimize punitive damages, limiting emotional distress damages, and whether unemployment benefits should be deducted from back-pay awards. Other members of the distinguished panel were Honorable Peter M. Lauriat, Superior Court Justice, Eugenia M. Guastaferri, Senior Hearing Officer at the Massachusetts Commission Against Discrimination and employee-side advocates Inga S. Bernstein and David E. Belfort. Scott defends clients from employment-related lawsuits before state and federal courts and agencies.
Please feel free to contact Scott with any questions.
Employment Law Clip: Pitfalls of Using Independent Contractors
Many businesses use “independent contractors” to augment their regular workforce. They see advantages to using trained, non-employee workers with specialized skills who can provide needed services on a short-term or long-term basis.
However, the ability of businesses to classify workers as independent contractors is not unchecked. Businesses cannot avoid employer obligations simply by designating certain workers as independent contractors.
Please feel free to contact any member of MBBP’s Employment Law Group with questions on independent contractors.
Want more information? Try some of our other resources on this topic:
Retaliation Once Again Is the Top Type of Claim Filed with the EEOC
By: Robert Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2013 and for the fourth straight year 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, up three percent from 2012. Retaliation was followed by race discrimination (35.3%), gender, including sexual harassment and pregnancy discrimination (29.5%), disability discrimination (27.2%), and age discrimination (22.8%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2013 can be found here.
For more information on this topic please contact any member of our Employment Law Group.
Can you deduct from an Employee’s Pay for a Snow Day?
This winter’s polar vortex and its seemingly unending supply of snow and cold raise the question of how to pay exempt and non-exempt employees when an office closes due to inclement weather, and whether deductions from pay for those closures are permitted.
Can you deduct when the office is closed due to weather?
When an employer is forced to close its business for a full day due to weather conditions, the federal Fair Labor Standards Act (“FLSA”) does not require that the employer pay non-exempt employees for that day, even if they were scheduled to work, since the employees are unable to provide any work for that day.
The employer may not, however, take a deduction from an exempt employee’s salary for an inclement weather closure without risking the loss of the employee’s exempt status. (N.B., though, that if the closure lasts for one week or more, then the employer does not need to pay the exempt employees for that week).
Can you deduct when the office is partially closed due to weather?
Although federal law does not require that employers pay non-exempt workers during a partial closure, in some circumstances Massachusetts law may. If a Massachusetts non-exempt employee reports to work but there is no work to be performed, or there is less work than the employee was scheduled to perform, the employee is entitled to “reporting pay” of at least three hours pay at the minimum wage. For example, if the office is closed but an employee wasn’t aware of the closure and reports to work, or if the office closes early because of inclement weather, then a Massachusetts non-exempt employee is entitled to reporting pay.
If the employer’s office is closed for only part of the day due to inclement weather, the employer cannot make a deduction from an exempt employee’s salary without losing the employee’s exemption.
Can you deduct when the office is open but the employee is absent due to weather?
The rules shift slightly when the employer remains open for business but an exempt employee is unable to make it into work due to inclement weather.
Nothing changes in this situation for a non-exempt employee; a non-exempt employee does not need be paid for hours not worked, and so an employer may make a deduction for a weather-related absence.
However, the usual rule that an employer cannot deduct from an exempt employee’s wages without risking the loss of the employee’s exemption changes in this situation. The U.S. Department of Labor (“DOL”) has advised that when an office is open, but an exempt employee is absent due to inclement weather, the Department of Labor will treat the absence as one for “personal reasons” and the employer may deduct that day’s wages from the employee’s salary without losing the employee’s exemption.
Note, however, that this loophole only applies if the exempt employee takes the entire day off for weather-related reasons. An exempt employee who chooses to leave an hour or two early to get a jump on weather-related traffic should not have a deduction taken – to do so would risk the loss of the exemption.
For more information on how to pay exempt and non-exempt employees when an office closes due to inclement weather, please contact a member of the Employment Law Group.
NLRB Abandons Notice Posting Requirement
January 2, 2014 was the deadline for the National Labor Relations Board (NLRB) to file a petition with the U.S. Supreme Court to review the appellate court decisions. The NLRB chose not to file a petition, thus effectively abandoning the notice posting requirement. (Note that this does not impact the requirement under Executive Order 13496 that non-exempt federal contractors and subcontractors post a notice informing employees of their NLRA rights.) The NLRB’s website now notes: “Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the [NLRA]. However, employees are free to voluntarily post the notice.”
For more information on what this means for employers, please see the full Alert.
If you have any questions, please feel free to contact a member of MBBP’s Employment Law Group.
Massachusetts Employment Law Blog 