Murphy, Hesse, Toomey & Lehane, LLP
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In a much anticipated ruling,the Massachusetts Supreme Judicial Court (“SJC”) issued a decision recognizing a potential claim for disability discrimination if an employer terminates or otherwise takes an adverse employment action against an employee who uses lawfully prescribed medicinal marijuana while off-duty. In short, this decision prohibits blanket restrictions on the off-duty use of marijuana and requires employers to engage in an interactive process to determine whether the off-duty use of lawfully prescribed medical marijuana may be a reasonable accommodation under Massachusetts anti-discrimination law, M.G.L. c. 151B.
On June 29, 2017, the Senate unanimously voted to pass the Massachusetts Pregnant Workers Fairness Act (S.2093). This bill will be sent to Governor Charlie Baker to be signed after being reconciled with the House version of the bill (H.3680) that passed in May 2017.
The federal government has released a number of Executive Orders ("Orders") that are directly affecting immigration policies, procedures and practice in the United States. Some of these Orders may have a direct impact on employers, especially employers who employ foreign nationals and conduct business abroad that requires foreign travel. Here is a brief synopsis on the state of these Orders as of now.
At the 2016 state election, Massachusetts voters approved Question 4, which regulates marijuana for recreational (i.e., non-medical) purposes. A consequence of Question 4 is that the production, possession, sale and consumption of marijuana – in certain amounts and under certain circumstances, for persons aged 21 years and over – will become legal under Massachusetts law.
Late yesterday, a federal judge issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new Fair Labor Standards Act (FLSA) overtime regulations from going into effect on December 1, 2016. What this means for employers in the short term is that the new overtime regulations – which, among other things, more than doubled the salary threshold for exempt employees to $913 per week – are on hold for now, pending final resolution from the court.
By November 8, millions of Americans will have voted. As a law firm practicing in the public and private sector for more than three decades, we do not endorse candidates. However, given that much of our practice is in labor and employment and education, we feel that it is our responsibility to advise our clients about the legal consequences of some of the speech that is being used in this election.
On August 1, 2016, Governor Baker signed Senate Bill 2119, “An Act to Establish Pay Equity into law (the “Act”). This Act amends Chapter 149, s. 105A of the General Laws, which currently prohibits discrimination in payment of wages on the basis of sex for “comparable” work.” Although federal and state law already proscribes discriminatory pay practices on the basis of sex/gender, the Act clarifies certain definitions and includes additional restrictions and protections. The Act goes into effect July 1, 2018.
Today, the U.S. Department of Labor (DOL) released its final regulations making changes to the overtime exemptions under the Fair Labor Standards Act (FLSA). We have been watching these regulations for many months now, wondering when they will be released and if the final regulations would respond to the opposition and opinions of the many who see these regulations, and particularly the new salary threshold, as too steep and a hardship.
On December 18, 2015, Congress passed and President Obama signed a federal budget bill for 2016, including $1.1 trillion in spending and $622 billion in taxes. Also attached to the budget bill were several changes to the Affordable Care Act (“ACA”), most notably a two-year delay in implementation of the so-called “Cadillac Tax.” The ACA changes took effect immediately upon the bill’s signing.
In a decision issued August 27, 2015, the National Labor Relations Board (the “Board”) expanded the definition of “joint employer” under the National Labor Relations Act (the “Act”), broadening the number of parties potentially subject to bargaining and fair labor practice obligations in relation to employees they may not directly employ. In this case, Browning-Ferris Industries of California (the “BFI”), the Board found that the owner and operator of a recycling facility (the “user” employer) was a joint employer with a firm that supplied employees to the facility (the “supplier” employer), despite the fact that only the supplier firm provided compensation to and direct supervision of those employees. This case has potentially broad implications for both user and supplier employers.
Today, August 17, 2015, the National Labor Relations Board (“Board”) unanimously decided that it would not exercise jurisdiction over Northwestern University scholarship football players, and thus those players do not have a federal right to organize and bargain collectively (at least today).
In response to a March 2014 order from President Obama to “modernize and streamline” federal overtime regulations, the U.S. Department of Labor (“DOL”) has recently proposed important changes that could ultimately require employers to pay overtime wages to millions of workers across the nation that are currently considered “exempt” from overtime requirements
Voters in Massachusetts approved the Earned Sick Time Law (the “Law”) in November 2014. Among other provisions, the Law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year. The Law is scheduled to go into effect July 1, 2015. Following the issuance of proposed regulations on April 24, 2015, and an extensive comment period, the Massachusetts Attorney General released Final Regulations on June 19, 2015, further clarifying many aspects of the Law and making changes to the proposed regulations.
On June 1, 2015, the United States Supreme Court issued a ruling in the case of EEOC v. Abercrombie & Fitch Stores, Inc. clarifying employer obligations with regard to religious discrimination. The Court held that employers need not have actual knowledge of an employee’s or applicant’s religious belief or practice in order to be liable for religious discrimination under Title VII. Unconfirmed suspicion of the possible need for a religious accommodation, the Court found, was sufficient to hold an employer liable under Title VII.
Voters in Massachusetts approved the Earned Sick Time Law (the “Law”) in November 2014. Among other provisions, this Law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year. The Law is scheduled to go into effect July 1, 2015. The Attorney General is in the process of drafting and issuing regulations on the Law.
Voters in Massachusetts approved the Earned Sick Leave Law (the “Law”) in November 2014. Among other provisions, this law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year. The Law is scheduled to go into effect July 1, 2015. The Attorney General announced this week a temporary “Safe Harbor” for employers that already provide to employees the right to use at least 30 hours of paid time off during calendar year 2015.
The federal Equal Employment Opportunity Commission (“EEOC”) has issued proposed regulations regarding wellness programs. The proposed rule provides guidance on the extent to which the Americans with Disabilities Act (“ADA”) permits employers to offer incentives to employees to promote participation in employer-offered wellness programs. The proposed rule can be found here. The primary purpose of the EEOC’s proposed rule is to reconcile provisions in the Affordable Care Act (“Act”), which allow for health-contingent wellness programs, with provisions in the ADA which place limitations on some components of wellness programs.
The Massachusetts Office of the Attorney General (AGO) has issued proposed regulations regarding the Earned Sick Time Law that was approved by voters on November 4, 2014. The Earned Sick Time law will go into effect on July 1, 2015 and generally requires employers to provide up to 40 hours of earned sick time per year to their employees for a wide variety of covered reasons.
Over the years, many employers, both union and non-union, have been charged with violating the National Labor Relations Act (“Act”) when the National Labor Relations Board (“NLRB”) determines that an employer’s handbook rules prohibit or restrict activities protected by the Act. Noting that the Act “does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act,” the NLRB General Counsel has issued a memorandum to assist employers with drafting lawful policies. This memo provides examples of both lawful and unlawful policies. This memo also focuses on policies that have historically been problematic for employers often resulting in unfair labor practice charges.
On April 10, 2015, Massachusetts’ highest court issued an important ruling for service industry employers, clarifying employer obligations with regard to “no-tips” policies under Massachusetts law. The Court held: (1) “no-tips” policies are permissible, (2) employers are allowed to keep any money left as a tip when a no-tips policy is clearly communicated to customers, and (3) employers are not allowed to keep any money left as a tip when the policy is not clearly communicated to customers.
On March 25, 2015, the United States Supreme Court decided Young v. UPS. This case concerned the interpretation of the federal Pregnancy Discrimination Act (“PDA”). The Court’s 6-3 decision vacated and remanded a lower court’s grant of summary judgment in favor of the employer and interpreted the PDA to allow a plaintiff to demonstrate discriminatory intent by showing that an otherwise neutral light-duty policy places an unjustifiable “significant burden” on pregnant workers. This case is a reminder for all employers to carefully review their light duty/accommodation policies.
Effective March 27, 2015, the U.S. Department of Labor (DOL) regulations under the Family Medical Leave Act (FMLA) will protect an employee’s right to take FMLA leave to care for a legally-recognized same-sex spouse regardless of the state where the employee or the employer resides. The FMLA generally allows covered employees to take twelve weeks per year of unpaid leave to care for illness or injury for themselves or certain family members, including spouses. The new regulations effectively expand FMLA coverage to employees with same-sex spouses who live in states that do not recognize same-sex marriages.
The Affordable Care Act (“ACA”) includes a requirement that certain employers annually file with the Internal Revenue Service (“IRS”) information related to health care coverage offered to employees. After releasing draft forms and instructions in July and August, 2014, the IRS has recently issued the final forms and instructions. The final forms remained largely unchanged from the draft forms.
On January 7, 2015, Governor Patrick signed “An Act Relative to Parental Leave” into law (the “Act”). This Act replaces the Massachusetts Maternity Leave Act (“MMLA”), and extends parental leave rights to both men and women. While similar to the MMLA in many respects, there are important differences of which employers need to be aware when updating policies and procedures in light of this new law.
Over the last three years we have kept you informed of the progress of the National Labor Relations Board’s (“Board”) efforts to accelerate its election processes. If you recall, in 2011 the Board published its final rule, which then was rejected by a federal district court because the Board lacked the quorum necessary to adopt such a rule. In December, 2013, the Board voluntarily dismissed its appeal of that court decision, thus clearing its decks for another try. Then on February 5, 2014, the Board published a Notice Of Proposed Rulemaking (“NPRM”) in the Federal Register. That proposed Rule was virtually identical to the one originally proposed in 2011.
A majority of the National Labor Relations Board (“Board”) recently overruled its own precedent and held that employees who are allowed to use an employer’s email system for work purposes must also be allowed to use that email system during their non-working time for communications that are protected by Section 7 of the National Labor Relations Act (“Act”). Purple Communications, Inc., 361 N.L.R.B. No. 126 (12/11/14). Only if an employer can show that there are “special circumstances” necessary to maintain production or discipline can an employer bar such access to its email system. Otherwise, if an employer cannot show such “special circumstances,” it can apply “uniform and consistently enforced” controls over an email system, but only to the extent that the employer is required to maintain production and discipline.
The filing deadline to submit annual enrollment counts for group health plans subject to the Transitional Reinsurance Program (“TRP”) is December 5, 2014 at 11:59 pm. The first TRP contribution payment is due January 15, 2015. The TRP is one of the taxes and fees established under the Affordable Care Act (“ACA”). Money raised through this fee is intended to stabilize premiums in the individual market for those with pre-existing conditions. The TRP contribution applies to benefit years 2014-2016, and the fee is $63 per covered life in 2014. The fee is expected to be less in 2015 and 2016, as the statute provides for less money to be raised in each subsequent year.
On November 4, 2014, Massachusetts voters approved a ballot initiative providing for earned sick time for employees (the “Law”). The Law takes effect on July 1, 2015, and will require certain employers to provide up to 40 hours of earned sick time per year to their employees for a wide variety of covered reasons.
On August 8, 2014, Governor Patrick signed “An Act Relative to Domestic Violence” (S.2334) into law (the “Act”). Among other changes to the state’s domestic violence laws, the Act requires employers with fifty (50) or more employees to provide domestic violence leave in certain situations.
Proposed in the wake of gun violence incidents nationwide, on July 31, 2014, the Massachusetts Legislature passed “An Act Relative to the Reduction of Gun Violence” (Act). The Act, which is now awaiting the Governor’s approval, will make significant changes to the authority of local licensing authorities over firearms licensing.
In a case called Noel Canning, the U.S. Supreme Court ruled unanimously yesterday that three recess appointments President Barack Obama made to the National Labor Relations Board (“Board”) in January 2012 - Terence Flynn, Richard Griffin and Sharon Block - were unconstitutional, an opinion that effectively invalidates hundreds of decisions issued between January, 2012 and August, 2013, when those appointees were on the Board.
The Affordable Care Act (“ACA”) contained an employer mandate, known as the employer responsibility provisions or “pay or play,” which was originally scheduled to be effective as of January 1, 2014. Last summer, the Obama Administration announced a delay in that mandate until January 1, 2015. On the heels of last summer’s delay, the Administration has decided to further delay the provision’s effective date until January 1, 2016, for employers with between 50 and 99 full-time equivalent employees.
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
On May 8, 2013, The Department of Labor (“DOL”) released a model notice and guidance with regard to the requirement under the Affordable Care Act (“ACA”) that employers provide notices to employees about the state health care exchanges, also called Health Insurance Marketplaces (“Marketplaces”).
The saga of the National Labor Relations Board’s (“Board”) Notice posting rule continues. If you recall from our prior Alerts, in 2011 the Board issued a Rule mandating the posting of an 11” x 17” Notice in virtually every private sector workplace in the country - union or not - informing employees of their rights under the National Labor Relations Act (“Act”).
On January 25, 2013, the Department of Health and Human Services (“HHS”) published final regulations making important changes to requirements under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
On January 10, 2013, Governor Patrick signed “An Act Relative to Background Checks” (H.4307) into law. This law implements a wide reaching requirement for mandatory state and national fingerprint-based criminal background checks for public and private elementary and secondary educational institutions, Department of Early Education and Care licensed and/or funded child care facilities/programs, and applicants to be adoptive or foster parents.
With the 2012 election behind it and Speaker of the House stating that the Patient Protection and Affordable Care Act (“PPACA”) is the “law of the land,” the Obama Administration has pushed forward with health care reform by releasing new proposed regulations on November 20, 2012.
On August 6, 2012, Governor Patrick signed into law “An Act improving the quality of health care and reducing costs through increased transparency, efficiency and innovation” as Chapter 224 of the Acts of 2012.
Following the landmark decision of the United States Supreme Court upholding the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), commonly known as the Federal Health Care Reform Act or Obamacare, the federal government will move forward with putting into effect the PPACA’s provisions.
In a landmark ruling, the U.S. Supreme Court has upheld the “individual mandate” and the entire Affordable Care Act as a proper exercise of the Constitution’s power to tax.
Employers are reminded that the remaining provisions of the 2010 Massachusetts Criminal Offender Record Information (CORI) Reform Law become effective on May 4, 2012.
In December, 2011, the National Labor Relations Board published a Rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining.
Effective immeditely on the passage of the Affordable Health Care Act, employers covered by the Fair Labor Standards Act (FLSA) are required to furnish "reasonable" breaks to nursing mothers to express milk for their infants.
In response to the decision of a federal district court judge in the District of Columbia to strike down the NLRB’s Rule on speedy elections for lack of a quorum, the NLRB has temporarily suspended the implementation of that Rule.
As a follow-up to our Client Alert of this morning, earlier today the Federal D.C. Court of Appeals granted the U.S. Chamber of Commerce’s motion to enjoin the National Labor Relations Board from implementing its posting rule pending its decision.
The saga of the National Labor Relations Board’s Posting Rule continues. Friday afternoon Judge David C. Norton of the Federal District Court for the District of South Carolina, in a case brought by the South Carolina Chamber of Commerce and the U.S. Chamber of Commerce, ruled that the Board exceeded its regulatory authority in requiring a workplace posting of employees' union rights.
The saga of the National Labor Relations Board’s Posting Rule continues. On Friday, April 13, Judge David C. Norton of the Federal District Court for the District of South Carolina, in a case brought by the South Carolina Chamber of Commerce and the U.S. Chamber of Commerce, ruled that the Board exceeded its regulatory authority in requiring a workplace posting of employees' union rights.
On March 2, 2012, the U.S. District Court for the District of Columbia partially invalidated the National Labor Relations Board’s (NLRB) recently-promulgated posting regulation.
South Shore Chamber of Commerce March 1, 2012
The federal health care reform law, known as the Patient Protection and Affordable Care Act (“PPACA”), created several new requirements for employers who offer health care coverage to employees.
On August 30, 2011, the National Labor Relations Board (“Board”) issued its new posting rule, which requires a posting in most private sector workplaces advising employees of their rights under the National Labor Relations Act (“Act”).
Today the National Labor Relations Board (“Board”) published its final Election Rule in the Federal Register. The Final Rule is aimed at significantly reducing the time between the filing of an election petition and the election itself.
The federal health care reform bill known as the Patient Protection and Affordable Care Act requires group health plans to provide participants with a Summary of Benefits and Coverage (“SBC”). The SBC can be no longer than 4 pages (front and back) or less. The Department of Labor (“DOL”) has released proposed regulations and a template for the SBC and has now received comments on the regulations and template.
In January, Governor Deval Patrick announced the filing of legislation to further reform the Massachusetts public pension system in an effort to cut costs and ensure the financial viability of the State’s public pension system in the future.
The last few months have seen stepped up regulatory activity on the worker misclassification front as well as initiatives to enforcement proper payment of wages and other benefits.
This Tuesday, August 30, 2011, the National Labor Relations Board will publish a Final Rule mandating the posting of an 11” x 17” Notice in virtually every private sector workplace in the country – unionized or not - informing employees in considerable detail of their rights under the National Labor Relations Act.
Presented by Katherine A. Hesse
As part of the landmark federal health care reform legislation passed in March, 2010, Congress included an Early Retiree Reinsurance Program that will reimburse sponsors of group health care plans for a portion of the cost of paying claims for covered early retirees. If a health plan covers retirees too young to qualify for Medicare (ages 55-64), then the plan may be able to apply for this reimbursement from the federal government
Do you work with a significant number of independent contractors? Or at least, do you think or hope they are independent contractors? You’d better find out for sure!
On March 21, 2010, the United States House of Representatives passed a comprehensive health care reform package known as the Patient Protection and Affordable Care Act (the “Act”). The Act had previously been passed by the United States Senate in December 2009. President Obama signed the Act into law on March 23, 2010. The House also passed a bill making changes to the Act that will now go before the Senate.
On December 19, 2009, President Obama signed into law the 2009 Department of Defense Appropriations Act (“DDAA”). As part of the DDAA, Congress made changes to the COBRA subsidy program instituted by the American Recovery and Reinvestment Act of 2009 (“ARRA”). The changes are effective immediately, and require immediate attention by employers.
The American Recovery and Reinvestment Act of 2009 (“ARRA”), also known as the Stimulus Bill made important changes to the Health Insurance Portability and Accountability Act (“HIPAA”) that affect both covered entities and business associates. On August 24, 2009, the Department of Health and Human Services (“HHS”) released final regulations addressing ARRA changes to breach notification requirements.
Given the recently confirmed cases of Swine Flu (H1N1) in the United States, including Massachusetts and other New England states, questions have been raised as to how employers should handle the threat of an outbreak and exposed or infected employees. This memorandum provides guidance for employers on some of the important legal issues regarding the threat and on some questions employers are asking.
Laws governing the workplace generally apply only to employees, not independent contractors. For example, the following laws generally do not apply to independent contractors:
Today the “Employee Free Choice Act” (“EFCA”) was reintroduced in both houses of Congress. Last year it passed the House, but died in the Senate. With a new administration and Congress, passage of the legislation – in at least some form – seems inevitable.
President Barack Obama recently approved legislation that will increase the difficulty for employers fighting pay discrimination suits. The new law expands the possibility for employees to challenge pay discrimination based on race, gender, age or disability.
President-Elect Barack Obama’s Presidential election victory this week will likely result in fundamental changes in the relationship between employer and employee in the labor, employment, immigration, and employee benefits contexts. In addition, the struggling economy, with its attendant layoffs, wage freezes and benefits cutbacks, will also create legal issues for employers.
On September 17, 2008, the House approved the ADA Amendments Act, which had previously been passed by the Senate on September 11, 2008. It is fully expected that the President will sign the bill into law.
On September 3, 2008, the EEOC issued a comprehensive question and answer guide discussing the interface between the Americans with Disabilities Act (ADA) and workplace performance and conduct issues. The guide is a useful tool for employers, helping them navigate tricky situations involving disabled employees whose performance or conduct are affecting the employer’s operations.