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Posts Tagged ‘Amanda Thibodeau’

Round Up of Noncompete Reform Coming to New England

September 27, 2019 Leave a comment

2015-01-05_8-57-41Noncompete reform is taking over the country as more and more states – including four in New England – are making the decision to enact new laws restricting the use of noncompetition agreements by employers. Maine, New Hampshire, and Rhode Island all recently passed legislation that is expected to take effect soon, and a similar bill is pending in Vermont as well. Dates of note include:

  • In June 2019, Maine’s governor signed into law LD 733: An Act To Promote Keeping Workers in Maine. This new law took effect September 18, 2019.
  • On July 11, 2019, New Hampshire’s governor signed S.B. 197 into law, which amends New Hampshire’s previous statute governing the use of noncompetition agreements. The amended law took effect on September 8, 2019.
  • On July 15, 2019, Rhode Island’s governor signed RI H6019 – the Rhode Island Noncompetition Agreement Act, which will go into effect on January 1, 2020.
  • In January 2019, H.1 was introduced in the Vermont legislature. The bill was referred to the Vermont House Committee on Commerce and Economic Development, where it remains as of today.

Noncompete reform is gaining popularity, with more states likely to join in soon. Similar legislation has been proposed on the federal level as well, although the current federal bill, the Federal Freedom to Compete Act, has not gained much support yet and is currently sitting in the Senate Health, Education, Labor, and Pensions Committee.

Our Employment Law Alert explains the full extent of the bills and how they may affect you.

DOL Issues New Final Rule for Exempting Executive, Administrative, and Professional Employees under the FLSA

September 24, 2019 Leave a comment

By: Amanda Thibodeau

AET Headshot Photo 2019 (M1344539xB1386)The Department of Labor (DOL) released a final rule today, updating its regulations under the Fair Labor Standards Act (FLSA).  The final rule raises the threshold salary and annual compensation levels for exempting executive, administrative, and professional employees, including raising the “standard salary level” for exempting executive, administrative, and professional employees from the currently enforced level of $455 per week (the equivalent of $23,660 per year for a full-year worker) to $684 per week (the equivalent of $35,568 per year for a full-year worker).  It further allows employers the ability to apply a portion of bonuses or commissions received by those employees towards that salary level, for purposes of meeting the exemption. The final rule will be effective January 1, 2020.  For more information, or to review the final rule itself, visit the DOL’s announcement here.

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

Artificial Intelligence in Recruiting and Hiring

August 21, 2019 Leave a comment

By: Amanda Thibodeau

Tommorowland Today:  The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere

AET Headshot Photo 2019 (M1344539xB1386)Artificial Intelligence, or AI, is no longer just a sci-fi movie device.  This branch of computer science has grown to become an essential part of the technology industry.  You may recognize your own use of AI in products such as Apple’s Siri, Amazon Echo, or Netflix, which all use learning and predictive technology to get smarter and learn your likes, dislikes, interests, and behavior.

AI has recently stepped into the recruiting and hiring world, with new platforms available to employers to collect, store, and use data to screen a candidate’s facial expressions and gestures, analyze their voice, speech patterns, and knowledge on a particular subject, and evaluate a candidate’s personality and predict their fit for a role.  As with other AI technology, the more candidates the AI platform interviews, the smarter it gets in its analyses.

Illinois is the first state to respond to the rise of such use of these AI platforms.  In May 2019 Illinois passed the Artificial Intelligence Video Act (“the Act”), which goes into effect January 1, 2020.  Under the Act, an employer wishing to use an AI platform to analyze a candidate’s interview must comply with several requirements:

  • Employer must notify the candidate that their interview will be videotaped and may be analyzed using AI;
  • Employer must obtain consent to analyze the video using AI;
  • Employer must provide information to the candidate on how the AI platform works and what it uses to evaluate candidates.

The Act applies to all candidates applying for an Illinois-based position, regardless of where the candidate is actually located.  The Act also prohibits employers from sharing the candidate’s video, “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”  The candidate may also request that the video be destroyed within 30 days of a request.  This request also requires any recipient of the video to also destroy the video, including any electronically generated backup copies.

The Act itself is fairly short and does not contain any definitions or much guidance on interpretation.  Illinois is the first state to respond legislatively to this new use of AI in the employment context, and is therefore charting the course for now.  As the use of AI continues to grow in all industries, it is likely that other states may be playing catch-up sooner rather than later, and will likely use Illinois’ new Act as a model.

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

IEP Meetings Covered Under FMLA

August 15, 2019 Leave a comment

By: Amanda Thibodeau

DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA

AET Headshot Photo 2019 (M1344539xB1386)

Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA).  Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member.  A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.

The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings.  The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.

In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors.  The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion.  The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.

The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b).  In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions.  Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.

Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA.  Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.

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

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

July 10, 2019 Leave a comment

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

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

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

U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional

June 17, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?

On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.

Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.

The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.

The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.

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

June 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

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

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

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

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

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

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

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