One of the hallmarks of the Americans with Disabilities Act is that employers are required to have a dialogue—known as the “interactive process”—with an employee who requests or appears to be in need of an accommodation. A recent case, Massachusetts Commission Against Discrimination v. Tufts Medical Center, Docket No. 10-BEM-01133 (Dec. 18, 2019), provides some guidance for how an employer can fulfill its obligation to determine whether an employee’s disability can be accommodated.

In 2006, after about four years of working as an inpatient nurse at Tufts Medical Center in Boston, the Complainant was diagnosed with rheumatoid arthritis and lung disease. The following year, she was excused from overtime responsibilities as an accommodation, but still worked without other restrictions. In the spring of 2009, Complainant took medical leaves and by the summer, had exhausted her job protection; in order to return to the nursing pool at Tufts Medical Center, Complainant was required to apply for vacant jobs. By October of 2009, she was cleared to return to work with no restrictions.

Continue Reading MCAD Awards Former Employee $420,000 in Damages for Employer’s Failure to Engage in Interactive Process

On January 9, 2020, the implementation of the H-1B registration process was published in the Federal Register. Although the final rule regarding registration was issued in January 2019, and an announcement was made in December 2019 confirming the process, only some guidance regarding the process has been provided. As of the January 9, 2020 notice, USCIS has stated that it will conduct further outreach and training prior to the initial implementation of the registration process, and will provide guidance on how to use the registration system.

Continue Reading H-1B Cap Registration Update

Last week Congress passed the Setting Every Community Up for Retirement Enhancement (SECURE) Act as part of the legislative package of spending bills. President Trump signed the legislation on Friday to implement the first major retirement plan legislation since the Pension Protection Act of 2006. As often occurs with major Tax legislation, employers will need to quickly review the legislation as some of the provisions are effective as early as January 1, 2020.  The following are some of the important provisions in the 119 pages of legislation.

Continue Reading Congress Passes SECURE Act Making Major Changes to Retirement Plans

Calculation of “regular rate” of pay is something which has long given employers fits, and the US Department of Labor (“DOL”) has taken a step which it hopes will clarify the definition, something which hasn’t been done in 50 years.  On December 12, 2019 the Final Rule interpreting “regular rate” was announced.

Under the Fair Labor Standards Act (“FLSA”) employers are required to pay non-exempt workers time and one half the “regular rate” for every hour worked over 40.  According to the regulations, the “regular rate” includes all remuneration paid to the employee except for certain payments specifically excluded under the FLSA.  This would include wages paid by the hour, by salary, or by piecework and most bonuses, commissions, incentive pay, shift differentials, and on-call pay. Excluded payments, by definition, are premium payments for certain work (e.g. Sunday premium pay), discretionary bonuses, holiday gifts, and vacation pay.

Continue Reading USDOL Issues Guidance on “Regular Rate” of Pay

It’s that time of year HR Pros!  Holiday parties, too much food and drink, devolving into that awful HR role of party planner and gift giver, and a list a mile long of things you meant to get to before year end which, somehow, just didn’t get done.  Here’s an idea.  Let’s not think about what we didn’t do, but focus instead on a real plan for what we realistically can accomplish in 2020, the start of a brand new decade!  I’m not talking about strategic planning or high level forecasting for your business, which is of course critical to success.  I’m talking about simple things which you know you should do (or we employment attorneys have been telling you  to do); things you can do yourself or delegate. Here’s my list of 2020 to-do’s!

Continue Reading Happy Holidays, New Year’s Resolutions and All That

On September 5, 2019, the Massachusetts Department of Family and Medical Leave (“DFML”) issued new guidance on when employers must count 1099-MISC workers as part of their workforce for purposes of the Paid Family and Medical Leave (“PFML”) program. In its press release announcing the new guidance, the DFML stated that the guidance was issued after meetings with representatives from hundreds of businesses across Massachusetts during which the businesses consistently sought clarification on whether they are required to collect contributions from, and report on, 1099-MISC workers.

Continue Reading Massachusetts Clarifies When 1099-MISC Workers Should be Counted for Purposes of the Paid Family and Medical Leave Act Program

Online Filing System Sample Form
Component 2 EEO-1 Online Filing System Sample Form

After numerous delays and revisions the deadline for filing enhanced EEO-1 reports is now just three weeks away, due to be filed with the Equal Employment Opportunity Commission (“EEOC”) by September 30.  Component 1 Data should already have been filed…by May 31. The Component 1 data required affected employers to provide a list of employees organized by job category, race, ethnicity, and gender.

Continue Reading Are You Prepared to do Your EEO-1 Reporting?

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Maura Healey – Massachusetts Attorney General

Massachusetts Attorney General Maura Healey released her fourth annual Labor Day Report this week.  As in past years, the report summarizes the AGO’s Fair Labor Division’s enforcement activities over the past year, and provides insight into the office’s priorities and initiatives in the enforcement of the Commonwealth’s wage and hour laws.

Continue Reading Mass. AG’s Labor Day Report Gives Insight Into Wage and Hour Enforcement Priorities

Following both Massachusetts and Maine, New Hampshire will prohibit non-compete agreements for employees who earn an hourly rate that is equal to or lesser than double the federal minimum wage.  The federal minimum wage, which NH follows, is $7.25 per hour.  This means that employers cannot require employees who make $14.50 per hour or less (or just over $30,000 or less) to sign a non-compete agreement as a condition of employment.

NH’s new law defines a noncompete agreement to mean “an agreement between an employer and a low-wage employee that restricts such low-wage employee from performing:

(1)  Work for another employer for a specified period of time;

(2)  Work in a specified geographical area; or

(3)  Work for another employer that is similar to such low-wage employee’s work for the employer who is a party to the agreement.”

The new restriction applies to noncompete agreements as defined under this section, not to other types of employment agreements such as nonsolicitation, nondisclosure, trade secret, intellectual property, or confidentiality agreements.   And under the statute, a “noncompete agreement entered into between an employer and a low-wage employee shall be void and unenforceable.”

Governor Sununu signed S.B. 197 into law in July.  It takes effect on September 8, 2019 and will be cited as RSA 275:70-a.

NH had previously enacted legislation restricting use of noncompete agreements.  Under RSA 275:70, NH employers must give a copy of a required noncompete agreement to a potential employee or applicant prior to the applicant’s acceptance of an offer of employment.

A collective sigh of relief could be heard across the Commonwealth yesterday as anxious business owners, insurers, and employment lawyers heard the news that Massachusetts government leaders had agreed to a three-month delay of the implementation of the first-in-the-nation Paid Family and Medical Leave law.

With a July 1 deadline to begin making payroll deductions looming, many questions remained about the law.  Are the deductions pre-tax or post-tax?  (We still don’t know.)  Which employees and independent contractors are covered?  (It’s complicated.)  Should employers seek an exemption by adopting a private plan?  (Maybe?)  With the deadline now moved to October 1, legislators and employers have some much-needed breathing room to answer these and other questions about the law.

Continue Reading Massachusetts Leaders Agree to Three-Month Delay of Paid Family and Medical Leave Law