News

BEWARE: The PFMLA Trap for the Unwary

                Beginning October 1, 2019, employers will begin withholding contributions under the Massachusetts Paid Family and Medical Leave Act (“PFMLA”).    Much of the compliance guidance, including from payroll companies, is out of date regarding the inclusion of individual “independent contractors” in the workforce count and for contribution purposes.  The “short-hand” guidance has stated that individuals to whom the employer issues a 1099MISC, and who are performing services in your trade or business or regularly engaged to perform services, need to be counted in your workforce if more than 50% of your workforce. Unfortunately, the trap is that employers who “count” these individuals for PFMLA purposes also should reclassify such individuals as W-2 employees because they are not properly classified as Independent Contractors in Massachusetts.

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Checklist for HR Compliance Deadlines

Human resource professionals are challenged with many new state and federal laws, as well as new regulations, which have significant upcoming deadlines. To assist Massachusetts employers in timely meeting their obligations, we have developed a Compliance Deadline Checklist. This Checklist outlines the most significant new laws impacting the workplace, and includes action items intended to guide human resource professionals in meeting deadlines to comply with the new laws.

Click here to download NELGPC’s Checklist for Human Resources Compliance Deadlines.

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United States DOL Issues Notice of Proposed Rulemaking To Update FLSA Regular Rate Regulations

The United States Department of Labor announced a Notice of Proposed Rulemaking on March 28, 2019 regarding the regular rate of pay requirements under Section 7(e) of the Fair Labor Standards Act (FLSA).  The Proposed Rule will be published in the Federal Register on March 29, 2019.   The Proposed Rule seeks to clarify and update the “regular rate” determination requirements for the first time in over 50 years.  When the FLSA was promulgated over 50 years ago, typical compensation consisted predominantly of traditional wages; paid time off for holidays and vacations; and contributions to basic medical, life insurance, and disability benefits plans.  Since then, the perks and benefits offered by employers have greatly changed. 

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Employer Policies Unlawful Under Obama May Be Lawful Again

Trump Administration Rolling Back Certain Obama-Era DOL and NLRB Interpretations

 

The Trump Administration has begun to roll back some of the prior administration’s policies which reinterpreted decades of US Department of Labor and National Labor Relations Board decisions and enforcement policies.  Many employers had revised long standing payroll practices, handbook policies, and internship programs to comply with these interpretations.   As the Trump-era DOL and NLRB are beginning to restore many of the prior interpretations, including under the Fair Labor Standards Act and the National Labor Relations Act, employers might reconsider similarly restoring prior policies and practices when updating employee handbooks for 2018.

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Massachusetts Highest Court Finds that Employers Must Accommodate Medical Marijuana

On July 17, 2017, the Massachusetts Supreme Judicial Court issued its long awaited decision in Barbuto v. Advantage Sales and Marketing, No. SJC-12226 (2017).  The Barbuto decision is significant because it is the first Massachusetts case to interpret the Massachusetts Medical Marijuana Act as it relates to employment.  The Barbuto decision differs from all other courts that have considered the issue, and held that an employer has a duty to accommodate medical marijuana use under the state disability law.  The Court also held, however, that the Medical Marijuana Act itself does not provide a private cause of action and that an employee alleging handicap discrimination may not pursue a wrongful termination public policy claim.

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Recent Massachusetts Wage Act Decision

Wage Act Violations: Even More Expensive After Supreme Judicial Court Rules That Prejudgment Interest Can be Awarded in Addition to Triple Damages and Attorneys Fees

Although many Employment Practices Liability Insurance (EPLI) Policies do not cover wage claims, the number of wage claims under state and federal wage-hour laws, including class actions, have rapidly risen over the past several years.   Recently, on a question referred from the federal court to the Massachusetts Supreme Judicial Court (SJC), the SJC made state wage act violations even more expensive for employers.  On June 26, 2017, the SJC held that, in addition to mandatory triple damages, prejudgment interest must be added to the amount of lost wages and other benefits awarded under the Massachusetts Wage Act.  (George v. National Water Main Cleaning Co., No. SJC-12191 (MA, June 26, 2017)).  The Court clarified, however, that such prejudgment interest shall not be added to the treble damages part of the award.

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EEOC Guidance on Mental Health Disabilities: A Gift for Employers

The EEOC recently issued a resource document intended to raise awareness about the rights of employees with mental health conditions under the Americans with Disabilities Act (ADA).   Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. The document also answers questions about how to request an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.   The EEOC is focusing an increasing amount of attention on mental health disabilities in the workplace.

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Have You Updated Your Bathroom Policies to Allow Access Based on Gender Identity?

Effective October 1, 2016, Massachusetts will prohibit discrimination in public accommodation based on an individual’s gender identity.   This law will affect not only places of accommodation open to the public, but also will require access to bathrooms in the workplace based on gender identity.  The Massachusetts Commission Against Discrimination has made clear that an employer’s failure to increase employee awareness and allow access to restrooms based on one’s gender identity could subject employers to charges of discrimination, harassment, and retaliation.

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