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.

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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.


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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.


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The Massachusetts Department of Family and Medical Leave has issued proposed regulations which are scheduled to go into effect July 1, 2019.

Although some of the proposed regulations may change – and there is a push on by certain business groups to have the start date pushed to October – businesses are well advised to

The SJC, Massachusetts’ highest court, issued its long awaited decision in Sullivan v. Sleepy’s LLC,  SJC-12542 on May 8, 2019. The case should be of concern to businesses which pay individuals fully or primarily by commission, especially in the retail context or in automobile sales where the ruling departs sharply from federal law.

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In an opinion letter dated April 29, 2019, the U.S. Department of Labor (DOL) explained that some service providers working for a virtual marketplace company (VMC) are independent contractors under the Fair Labor Standards Act (FLSA).   This opinion letter identifies the test the DOL is expected to use when considering the classification of workers

For several decades the Massachusetts overtime statute, G.L. c. 151, §1A, required generally that an employee working in excess of forty hours per week be paid “at a rate not less than one and one-half times the regular rate at which he is employed.”  The statute included twenty categories of exceptions from this overtime pay requirement.  One such exemption applied to laborers “engaged in agriculture and farming on a farm.” G.L. c. 151 §1A(19).  The SJC has recently held, however, that farm growing and harvesting “does not include post-harvesting activities.”  The case is Arias – Villano v. Chang & Sons Enterprises, Inc., 481 Mass. 625 (2019).  Thus, the laborers in Arias-Villano were entitled to time and a half for the type of work they performed beyond “agricultural and farm” work is excess of forty hours per week.  That is, growing and harvesting does not include “cleaning, sorting, and packaging” of or related to the agricultural product itself.  The workers were entitled to overtime pay for such ancillary duties.

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The Supreme Judicial Court has just recently made it abundantly clear that for liability to hold under the Massachusetts Wage Act, G.L. c. 149, §148, “[t]he work must have been actually performed and wage payments must be presently due to trigger the precise requirements and severe penalties” available under the Act.  The case is Calixto v. Coughlin, 481 Mass. 157 (2018).

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Photo: OTA Photos via Flickr (CC by SA 2.0)

As published in NEHRA News (3/21/2019)

The Massachusetts Wage Act provides that an employee who “prevails” in an action to recover unpaid wages “shall … be awarded the costs of the litigation and reasonable attorneys’ fees.”  This “fee-shifting” provision is an exception to well-established “American Rule” under which each party bears his or her own attorney’s fees, win or lose.  In cases where the employee wins at trial, the application of the Wage Act’s fee-shifting provision is clear: the employee will recover his or her attorney’s fees.  But what happens when the case doesn’t go to trial, and instead, the parties resolve the matter through a negotiated settlement in which both sides compromise?  Has the employee “prevailed” in that situation?  Is he or she entitled to recover attorney’s fees?


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A bill recently filed in the Massachusetts House of Representatives, if passed, would prohibit discrimination on the basis of height and weight.  The proposed legislation would add height and weight to the list of protected classes covered by the Commonwealth’s antidiscrimination law (G.L. Chapter 151B) and public accommodation laws (G.L. Chapter 272, Sections 92A and 98).

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