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Employment Law Round-Up: What Massachusetts Employers Need to Know For Q4 2020

October 15, 2020 Leave a comment

By Matthew L. Mitchell and Amanda Thibodeau

MLM Headshot Photo 2019 (M1341570xB1386)  AET Headshot Photo 2019 (M1344539xB1386)

With a work environment pressurized by the COVID-19 crisis and a contentious election cycle, employers are finding themselves increasingly involved with unusual employee conflicts and complicated employment law compliance questions. This can be particularly disruptive during the closing months of the business year.

The following summary discusses a variety of key concepts and new employment law standards that are intended to support Massachusetts employers in avoiding and navigating issues that may arise in the closing months of 2020. Topics include: Politics in the workplace, employee social media activity, responding to worksite infections, workplace safety, Massachusetts Paid Family Medical Leave, and unemployment insurance fraud. 

Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize these standards here.

DOL Updates FAQs on FFCRA Leave as a New School Year Approaches

August 28, 2020 Leave a comment

By: Amanda E. Thibodeau

This week the U.S. Department of Labor (DOL) updated its Frequently Asked Questions (See Questions #98-100) on leave eligibility under the Families First Coronavirus Response Act (FFCRA), in anticipation of a significant shift to remote school programs across the U.S. As a new school year approaches, employers should familiarize themselves with this new development as they begin to field new requests for FFCRA leave from their employees.

The DOL addressed how the FFCRA applies to several school program scenarios including fully remote programs, hybrid arrangements, and what happens if a parent chooses a remote option over in-person schooling.

The DOL clarified that if a school does not permit the child to attend school in-person and is instead only permitting remote learning, the school is effectively “closed” for purposes of the FFCRA, and the parent may take leave to care for the child. Likewise, if a school is operating on a hybrid basis with some days in-person and other days remote, the FFCRA leave would apply to those remote days where the child is not permitted in school. This would effectively allow an employee to be eligible for FFCRA leave on an intermittent basis.

If a school is offering in-person attendance (either fully in-person or on a hybrid basis), but a parent elects to keep the child home and engage in remote learning, the parent would not qualify for FFCRA leave. The DOL reasons that because the school is open for in-person learning, it would not be covered under the regulations. If, however, the child is home on a remote basis because of another COVID-19-related reason, such as a quarantine order from a health professional, then the parent may be eligible for FFCRA leave.

It is important to note that when evaluating such leave requests, the employee must still supply certain information, including the child’s name (who is under the age of 14), the name of the school that is closed, and that there is no other suitable person available to care for the child. It is unlikely, then, that both parents of a child engaged in remote learning would qualify for FFCRA leave. And, of course, employers should continue to keep such written documentation in order to take advantage of the available tax credit.

See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.

Are You Ready to Reclassify? New Overtime Regulations Go Into Effect on December 1, 2016

October 5, 2016 Leave a comment

By: Sandra E. Kahn

2015-01-05_8-57-41On December 1, 2016, any employees who earn less than $47,476 annually will be entitled to overtime and must be treated as non-exempt, as per the U.S. Department of Labor’s final rule (“Final Rule”).
Don’t wait any longer to address this critical change in the law.
Find out how the Final Rule will affect your current employee classifications and pay practices, and the consequences of not complying with the law.

Read this month’s Employment Law Alert.

Will We See Non-Compete Reform Enacted This Year?

June 28, 2016 Leave a comment

By: Scott J. Connolly

For the past eight years, legislative efforts to reform 2015-01-05_8-57-41post-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
SJC Headshot Photo 2015 (M0846523xB1386)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

May 18, 2016 Leave a comment

By, Sandra E. Kahn

On May 18, 2016, President Obama announced the publication of the U.S. Department of 2015-01-05_8-57-41
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.

New Federal Law Protects Trade Secrets But Also Requires Changes to Employee and Contractor Agreements

May 5, 2016 Leave a comment

By: Sandra E. Kahn

The new Defend Trade Secrets Act of 2016 (DTSA) is expected to be signed into law by President Obama.  The Act will allow claims for trade secret theft to be brought under a federal civil cause of action.

Under certain circumstances, the Act will provide protection for whistleblowers who divulge trade secrets to the government in order to report wrongdoing.  As such, employers will now have to inform their employees of that protection in any agreement or contract.  It is advised that employers consult with their counsel to revise contracts as necessary.

For a more detailed explanation of the DTSA, read the full post on our Good Company blog.

Employers Cannot Pay Employees With Stock or Equity In Lieu of Cash

September 30, 2015 Leave a comment

MBBP's Wage & Hour Tip of the MonthA company with a bright future but a temporary cash shortage might be tempted to compensate employees with an ownership interest in the company (stock or equity) instead of with cash.

But, is this practice legal? Generally, the answer to this question is no. Under state and federal law, employees must be paid at least the minimum wage in cash. Providing equity, no matter how much the equity is worth, does not fulfill this requirement.

An exception to this rule is made, however, if the employee comes within the exemption for executive-business owners provided for in the federal Fair Labor Standards Act (“FLSA”). An individual who comes within this exemption is exempt from the FLSA’s minimum wage and overtime requirements.

To be exempt as an executive-business owner under the FLSA, an individual must (1) be employed in a bona fide executive capacity, (2) own at least a 20% bona fide interest in the business and (3) be actively engaged in the management of the business.

Unless an employee meets each of these requirements, paying in equity alone will run afoul of wage laws, and could result in significant liability for the employer, as well as possible individual liability for the president, treasurer, and individual “officers and agents” of the employer’s corporate entity.

For further help in determining whether your employee comes within the executive-business owner exemption or questions about paying employees with equity, contact a member of our Employment Law Group.

Employment Law Alert: Paid Sick Leave Transition Period

May 19, 2015 Leave a comment

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.

Employers Face Wage & Hour Risks When Terminating Employees

September 5, 2014 Leave a comment

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.

Employee Terminations: Avoiding Claims & Liability

September 9, 2013 Leave a comment

On Tuesday, October 29th MBBP is hosting a complimentary breakfast program titled “Employee Terminations: Avoiding Claims & Liability“. Discharging an employee is one of the most difficult parts of a manager’s (and HR professional’s) job. It is also the employment action most likely to expose a business to legal claims and liability. Discharged employees can bring a wide array of claims, including breach of contract, wrongful discharge, discrimination, and retaliation. Increasingly, discharged employees also assert claims focusing on the manner in which they were discharged and on post-termination conduct by employers, including claims of defamation, false imprisonment, and non-payment of wages.

Consequently, before discharging an employee, it is critical that employers (1) carefully evaluate the discharge decision; (2) prepare appropriate paperwork and plan for the termination meeting; and (3) be prepared to comply with the legal obligations that arise on and after the date of termination.

This Program is designed to help HR professionals, managers and in-house counsel develop a rational and strategic approach to employee terminations. We will review the major areas of risk and the common employer pitfalls and traps for the unwary. We will lead a very practical discussion with attendees focused on developing best practices that will avoid employee claims and liability.

This event is complimentary, but space is limited! Please visit our event page for more information or to register.

What does paid “on a salary basis” mean?

June 17, 2013 Leave a comment

Generally, to qualify as exempt from overtime requirements under the federal Fair Labor Standards Act’s “white collar exemptions,” an employee must meet certain tests regarding his or her job duties and must be paid on a salary basis. (N.B., applicable regulations provide for exceptions from the salary requirement for certain sales employees, teachers, employees practicing law or medicine or to certain situations where an employee is paid on a fee basis.)

Understanding what qualifies as “a salary basis” and how to maintain the “salary basis” is thus essential to maintaining an employee’s exempt status. An employee is paid on a salary basis only if he or she is paid a predetermined salary of at least $455 per week. To maintain exempt status, the salary amount cannot be reduced because of variations in the quality or quantity of the employee’s work, and in general, employers must ensure the employee’s salary amount is paid for each and every workweek in which work is performed.

This means that if an exempt employee is absent an employer may not dock, deduct, or reduce the employee’s salary without risking the loss of the employee’s exempt status. Employers may not reduce an employee’s salary even if it is the employer who initiates the absence, e.g., by closing the workplace for a holiday or furlough.

There are certain circumstances set forth in Department of Labor regulations, 29 C.F.R. §§ 541.602-605 (and, as applicable, state law), under which an employer might make a deduction without losing the employee’s exemption. For example, employers need not pay exempt employees for any workweek in which they perform no work at all. An employer might also take a deduction when: an exempt employee is absent from work for personal reasons other than sickness or disability; an exempt employee is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; an employer offsets amounts an employee receives as jury or witness fees, or military pay; an employer imposes good faith penalties for infractions of certain safety rules; and when an employer imposes a disciplinary suspension of one or more full days pursuant to workplace conduct policies. Employers should check with legal counsel before making a deduction pursuant to one of these exceptions.

For more information on this topic, please contact a member of the Employment Law Group.

Noncompetition Agreements: Protecting Customer Relationships & Confidential Information

March 20, 2013 Leave a comment

On Tuesday, April 23rd MBBP is hosting a complimentary breakfast program titled “Noncompetition Agreements: Protecting Customer Relationships & Confidential Information“. Employers often ask: “Are our non-compete agreements with employees enforceable?” The answer often depends on whether the employer took the necessary steps to put an effective agreement in place. Courts in Massachusetts generally will enforce reasonable agreements when necessary to protect particular employer interests, such as customer relationships and trade, from misappropriation. On the other hand, courts generally do not enforce non-compete (or non-solicit and non-disclosure agreements) when no real protectable interests are at stake, the restrictions are unreasonable, or the employer has undermined its ability to enforce them.

This Program will identify the steps employers can take to increase the likelihood that a court will enforce its restrictive agreements with employees, provide education and insight into how such agreements are enforced by employers, and de-mystify the litigation process. We will also review recent legal developments that may affect whether the agreements you currently have in place with employees are vulnerable to attack by departing employees.

Our presenters have decades of experience advising employers and litigating cases in this area and we expect that attendees will bring a wealth of knowledge and experience to the program. Through discussion, we expect a very enlightening exchange of practical ideas and a range of employer experiences.

Please visit our event page for more information or to register.