NOT EVERY NEW RULE SLATED FOR DECEMBER 1, 2016 WAS HALTED: THE NEW OSHA ANTI-RETALIATION RULES ARE EFFECTIVE TODAY

THE BACKGROUND

Back in May, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA. This new rule, which takes effect January 1, 2017 also included anti-retaliation provisions intended to prevent employers from discouraging employees from reporting workplace injuries and illnesses. Here is the OSHA announcement of the “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses Addressing Employer’s Compliance Obligations.”

OSHA’s initial plan was to begin enforcing the new anti-retaliation provisions in August, but due to litigation, the deadline was pushed back to December 1, 2016.  On this past Monday, a Texas federal judge refused to block the anti-retaliation provisions, rejecting a request by numerous business groups for a national injunction while their legal challenge plays out. Covered employers (defined below under “Looking Down The Road”) must take immediate steps to comply with the new anti-retaliation provisions.

HOW TO COMPLY TODAY WITH THE NEW ANTI-RETALIATION PROVISIONS

  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later (https://www.osha.gov/Publications/poster.html).
  • An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
  • An employer may not retaliate against employees for reporting work-related injuries or illnesses

 EASY, RIGHT? NOT SO FAST

The final rule does not specifically prohibit employers from performing drug tests on employees or implementing safety incentive programs.  Instead, it prohibits employers from using drug-testing and safety incentive programs in a way that deters or discourages employees from reporting workplace incidents.

No More Post Incident Drug Testing: According to OSHA, a blanket policy that requires all employees to submit to drug testing following a workplace safety incident violates anti-retaliation protections. This anti-retaliation prohibition does not change or impact the Department of Transportation Commercial Driver License post-accident drug/alcohol testing requirement. The pertinent rule provides that “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.” OSHA has also indicated that post-incident drug testing is appropriate in circumstances where employee drug use is suspected to be the cause of the incident.

No Incentive Programs That Reward for Zero Reported Injuries: OSHA is concerned that if employees are sufficiently motivated, they will under-report incidents in order to reach the incentive. OSHA is also encouraging employers to implement incentive plans that reward employees to improve workplace safety without discouraging reporting.

WHAT DO WE DO NOW?

The new anti-retaliation provisions will allow OSHA to take a more proactive enforcement role, meaning that OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA feels that the employer is discouraging appropriate reporting. This makes compliance particularly important.  Consider the following immediate steps:

  1. Update your OSHA Poster, and if you have not already done so, adopt a reasonable reporting process. Your handbook is a great place to start.
  2. Mandatory post-incident drug testing policies must be revised immediately. Adopt language that links testing to a reasonable suspicion that drug use caused the incident or illness.
  3. Modify any incentive programs that may be construed to discourage employees from reporting workplace accidents or illnesses.

Here is the OSHA Fact Sheet addressing the “Final Rule to Improve Tracking of Workplace Injuries and Illnesses.”

LOOKING DOWN THE ROAD

  • July 1, 2017: Organizations with 250 or more employees that are currently required to keep OSHA 300 Logs will be required to submit those records as well as Forms 300 and 301 electronically. Organizations with 20-249 employees that are classified in certain high-risk industries will also be required to electronically submit OSHA 300 Logs.

For your convenience and information, the links within this Alert contain related links to the list of “certain high-risk industries.”

WE CAN HELP

At Foley & Foley we have already helped many of our clients modify their handbooks and drug testing policies to comply with these new rules.  We welcome the opportunity to help your organization do the same.

 

I feel the Earth move, under my feet

 

New Overtime Rules are Delayed – Will Not Go in to Effect on December 1

To the shock and relief of employers across the country, a federal judge in Texas has issued a nationwide injunction blocking the Department of Labor’s new overtime rule set to go into effect on December 1. In a 20-page decision, U.S. District Judge Amos L. Mazzant ruled that the 21 states and more than 50 business groups that sued to block the rule stood a significant chance of success and will suffer serious financial harm if the new overtime rules go into effect as scheduled on 12/1. He further held that the DOL overstepped its authority by raising the salary cap for the white collar exemptions from $455 a week to $921 a week or $47,892 a year, a point where the minimum salary supplanted the duties test, which was not the intent of Congress when it created the statutory exemption.

What Happens Now?

For employers that planned to reclassify previously exempt employees on December 1, solely because employees do not meet the new salary threshold, reclassification can be delayed until further notice.

The injunction halts enforcement of the rule unless or until the government can win a countermanding order from the conservative Fifth Circuit court of appeals, where there is a reasonable chance no such order will be forthcoming. In other words, the new overtime rule will now face a full trial on its merits.

As we have stated repeatedly over the last 9 months, the white collar exemption to the FLSA is a three part test, including not just a two part salary test, but a duties test as well. The proposed amendment to the FLSA prompted many employers to revisit the duties tests and to reassess old job descriptions for compliance. We remain confident this was time well spent. This ruling has no impact on the existing duties test, and Judge Mazzant’s order solidifies the importance of the duties test. The Department of Labor will continue audits, and employees will continue to file wage and hour claims.

Because this injunction has no impact on the duties tests for the executive, administrative, professional, computer and outside sales exemptions, any job descriptions modified to better comply with those duties tests should still be rolled out at your earliest opportunity. Remember: if these positions were reclassified because they failed the duties test – they were incorrectly classified to begin with. To avoid fines and fees, it is important to proceed with those changes.

The issue of communicating this change will now be more complex. However, the fact remains that this area of law remains a highly litigated one, and as evidenced by the court’s decision, it can change on a dime. Ultimately, this is why we advised all of our clients to examine job descriptions, and revise exempt classifications, and it remains a strong argument for reclassifying your employees now. Until the court rules one way or the other, or Congress takes a definitive action to update the rules, the new overtime rule will not take effect; but it has not gone away.

Please contact our office with questions and concerns about this new development, we are here to help.

© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

 

Now what?

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by Attorney Angela Snyder

What Happens Now?

Change comes with every Presidential election and this one could be seismic.  Naturally, when we heard the outcome, we began questioning, what does this mean for employment laws?  What will happen to the Affordable Care Act?  What will happen with the new overtime rules?  Should businesses ignore the December 1 deadline and just wait to see what happens next? For Massachusetts, California, Maine and Nevada employers, and 25% of the country, employees will now have access to legal recreational marijuana.  How will the workplace be affected?

While we cannot read the future, we spend much of our day watching laws change and examining legal trends.  Here are our predictions  and advice for weathering the coming changes.

The Overtime Rules

As a threshold matter, Donald Trump will become the President on January 20, 2017, after the new overtime rule takes effect. Although Trump’s Secretary of Labor will likely roll back many of President Obama’s employment-related initiatives, the breadth of these changes remains to be seen. Trump has not released a specific policy or position, although he has said he favors “a delay or a carve-out of sorts,” but only for small businesses. This is far from a guarantee.

Additionally, as we have advised over the last year, the FLSA White Collar exemptions require a 3 part test.  Employees must receive a salary of at least $455 per week (rising to $913) per week; they must receive the same salary no matter how many hours they work; and they must pass a strict duties test.  The new FLSA rule set to take effect December 1, 2016, addresses only the minimum salary level portion of the test.  Many employers audited all of their exempt positions in preparation of these new rules.  To the extent employees were reclassified because their duties did not meet the requirements of one of the White Collar exemptions, a rollback of the new salary levels will be irrelevant.

In late September, two lawsuits were filed in federal court in Texas, and legislation that would delay the effective date of the rule until June 2017 passed the U.S. House of Representatives.  None of the legislation will pass into law before the new rules go into effect.  As for the lawsuits, there is a hearing this week in an action to challenge the rule; and it is possible the presiding judge will issue an injunction at that time.  However, the judge hearing the case is an Obama appointee, which means it is more than likely that on December 1, 2016, by law, all exempt positions must receive a salary of at least $913 per week.

Why comply, when there is a chance the new rules will be rolled back? As a quick reminder, under the FLSA, non-exempt employees who are improperly classified will be owed back wages and liquidated damages (equal to the back wages owed), and the auditing agency or court will look back two years to determine the overtime and wages owed.  If they believe the employer intentionally misclassified employees, that period extends to three years.  Under Massachusetts law, employees are entitled to treble damages.  These are not small penalties and often result in fines in the tens or hundreds of thousands of dollars.

For this reason, we advise all of our clients to comply with the new overtime rules on December 1.  If the new administration changes the rules, these employees can always be reclassified as exempt at a later date.  

Affordable Care Act

Trump and Republicans in Congress have stated that they will seek to repeal ObamaCare within Trump’s first hundred days in office. There are roughly 1,000 pages of the ACA and its related provisions.  A full repeal will be incredibly difficult, but it is possible.  It does look like Trump’s intention is to replace the ACA with some other program, which means 2017 should be interesting for employers. Trump has also stated he would keep the pre-existing condition mandate and the availability of insurance for children until the age of 26, which sounds a lot like…ObamaCare.

Marijuana Use

With the advent of the edible marijuana industry, a gummy bear is no longer a gummy bear.  Recreational pot shops are coming to Massachusetts in 2018.  Wondering how to prepare your workplace? Here are some things to know when it comes to creating policies on marijuana use:

  1. There is not an accurate test for marijuana intoxication.  An employee who uses marijuana outside of work (even the day before) will likely fail a blood test, even if the use was totally outside of work, and he or she was not intoxicated at the time of testing.  Given the legalization of medical marijuana in particular, this has resulted in a number of lawsuits.
  2. Although marijuana has now been legalized in a number of states, it is still considered a ‘controlled substance’ under federal law.  As such, at least for the time being, marijuana use remains illegal under federal law. Thus, any federal employer or private employer that receives federal monies may have to conduct testing under federal guidelines.
  3. Finally, only New Hampshire and Arizona have laws protecting medicinal marijuana use and preventing employers from discriminating against marijuana users.  This will likely change now that Massachusetts and California have legalized marijuana.

So, what does all of this mean?  In the states that legalized marijuana in 2012, there have been lawsuits filed by employees who have been terminated after a positive drug test.  The outcome of these cases has been surprisingly consistent, and offered employers a fair amount of latitude when it comes to drug testing and terminating employees for marijuana use.  This has been true even in states where recreational marijuana use is legal.  However, the courts up to this point have relied on the fact that marijuana remains illegal under federal law as a major justification for their decisions.

Now that legal access to recreational marijuana exists in several states, it is likely the federal government will have to look seriously at declassifying marijuana as a Schedule I drug.  This, in turn, will likely influence legal decisions.

Although the Massachusetts recreational marijuana law does not directly alter the state laws governing employer drug testing, it definitely makes sense to review your drug testing policies in light of the new law. At a minimum, policies that call for termination or other discipline for an employee’s use of “illegal” drugs may need to be revised, given that it is no longer illegal for adults to use marijuana in Massachusetts.

As to what amount of marijuana use should result in a termination, Colorado and Washington, where recreational use of marijuana is legal, set the level of impairment at 5 nanograms of active tetrahydrocannabinol (THC) based on a set amount of blood. Pennsylvania set a 1 nanogram threshold; Nevada and Ohio opted for 2 nanograms.  States are all over the map because setting a specific impairment threshold with THC is not as clear-cut as it is with alcohol. THC can remain in a person’s system for days and weeks. That means blood tests alone are unreliable.

In 2014, after marijuana was legalized in Washington, fatal crashes where the driver was found to have THC in his/her blood doubled from around 8% to 17%.  Now that so many states have legalized marijuana, the U.S. is going to be forced to find a national standard for sobriety that is based on real science.  However, until that happens, testing for marijuana use will continue to be problematic.

Recommendations

Private employers have latitude in terms of behavior they can prevent in the workplace.  Just as you can prohibit employees from having alcohol in the workplace, you can prohibit them from possessing or being under the influence of marijuana in the workplace.

Where your testing is limited to reasonable suspicion testing, your risk of an employee claim of wrongful termination based on a positive drug test is much lower than if you conduct random tests.  Although an employee may dispute the validity of your test, if you also have documented reasonable suspicion that an employee was under the influence while at work, you will be able to show that your action as an employer was based on a reasonable and good faith belief that the employee was a danger to him/herself or others.

As for smoking, you can continue to prohibit smoking marijuana and/or ingesting marijuana just as you can prohibit smoking cigarettes or drinking alcohol.

What About the Rest?

Without question our clients should expect some change in the employment law landscape with the new administration, and it will likely be more employer friendly. However, as we observed during the election, Mr. Trump has shifted positions on many issues, many times.  Trump’s appointments to the DOL, the EEOC, NLRB, and OSHA, not to mention the Supreme Court, will be far more telling of the direction of employment related laws in the coming years.

We can help: info@foleylawpractice.com or 508-548-4888

 

 

The EEOC Jumps on the Employee Classification Bandwagon

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The Equal Employment Opportunity Commission (EEOC) has issued updates to its Strategic Enforcement Plan for 2017-2021 .   At first glance it looks a lot like the current plan.  Then, like many government statements, there is a hidden line that gives a clue to where the EEOC is going:

The Commission adds a new priority to address issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.

The US government is playing catch up to the gig economy—Uber, Lyft, etc.  Yet this priority has noteworthy implications for all employers.  Misclassification of employees is a complicated and expensive issue. The EEOC is joining the chorus of the  Department of Labor (DOL) Misclassification Initiative.

 

If you have not reviewed your employee classification to comply with the December 1, 2016 DOL deadline on the “White Collar” Overtime mandate  you might reconsider an audit or position classification service. The message from the Feds is clear: misclassify employees at your peril (and you thought I was going to write: we just keep coming up with new regs to make it harder to do business!).

 

We can help. Call 508.548.4888 or email  Mike@foleylawpractice.com

DOL OT Rule Going Away? Don’t count your chickens… .

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In a new development, 21 states and many business groups are requesting that the Texas court enjoin implementation of the new DOL overtime exemption rules.  As far as their chance of success, at least in the near term, it is not good.

Reports are that both cases have been assigned to Judge Amos Mazzant, who was nominated by President Barack Obama in 2014. It has been suggested that this assignment may not bode well for the plaintiffs.  Theoretically, prospects may improve if the lower court decision is taken up on appeal to the Fifth Circuit.

The states are claiming that the DOL overstepped by raising the salary level for what should be exempt duties–regardless of salary. Moreover, the plaintiffs allege that the automatic indexing that raises the threshold salary over three years is an overreach of authority and should include provisions for economic conditions or the effect on resources.

Our view is that we all stay the course, and continue compliance efforts. With the compliance date of December 1 so close, it would be risky to leave the fate your workplace with the courts. In the meantime we will closely monitor this case and if the courts stop implementation, that will be a wonderful surprise.

EMPLOYMENT LAW ALERT: Less than 3 months to comply with overtime rules

Why all the hype

  • The long-awaited and much-debated “White Collar” regulations issued on May 18, 2016, become effective December 1, 2016 – your compliance deadline.
  • The DOL has already set up field offices in every state and is conducting random audits. The fines associated with these audits are high. In addition to unpaid overtime, misclassification of employees can result in liquidated damages, equitable relief, and reimbursement of attorneys’ fees.
  • The risk is not limited to the FLSA. Each state has its own unique employment laws. Some of these laws are consistent with the FLSA, others are not. State agencies and Attorney Generals’ Offices also conduct audits and initiate lawsuits, compounding the risk to employers.
  • The new overtime regulations have given every employer the perfect opportunity to not only reclassify positions impacted by the new salary levels, but to correct positions that were improperly classified as exempt from the start. This is a unique and limited opportunity.

Do I need a lawyer?

  • In the event of a lawsuit, internal audits of exempt/non-exempt classifications can be used as evidence of a willful violation of the FLSA, which lengthens the statute of limitations from two to three years. The strongest protection is the careful use of the attorney-client privilege to protect the audit itself. Engaging human resources staff or consultants or even in-house counsel to conduct the audit will not allow the company to avail itself of the attorney-client privilege. By retaining outside counsel to perform this service, all findings are protected by Attorney-Client privilege.
  • This is an exceptional chance to obtain an indemnified legal opinion that all the jobs in your workplace are accurately classified as exempt or non-exempt, under both state and federal law.

We Get It!

  • That is why we developed our 2016 Positions Classification Service and charge a fixed/flat fee for that service.
  • Getting started is very easy.
  • We provide your team the forms, checklists and worksheets that will carefully guide you through the classification process.
  • We will review the forms, checklists and documents that you provide us to insure exempt positions comply with state and federal law.
  • You can relax knowing that you have well-written job descriptions and that each employee is correctly classified and being compensated under the pertinent state and federal laws.

Introducing Our Service:

Introducing Our New Lawyer

Speaking of help, we are very proud and excited to introduce Attorney Julie Fletcher to our practice. Prior to joining Foley & Foley, Julie worked in the areas of immigration and employment law for several years at national law firms in Boston. Check out her bio.

Closing Thoughts

The United States Department of Labor has been on a roll, impacting wages, job classifications, the FMLA and Affirmative Action Compliance for Federal Contractors, just to name a few of their recent initiatives.

Please let us know how we can help your team better manage employment law compliance and HR-related risk.

CONTACT US 508-548-4888 or mike@foleylawpractice.com

We can help.


© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

Sick of Sick Time? If you have remote or traveling employees, be prepared to get sicker.

 

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Five states, 27 cities, and one county across the United State have paid sick time laws on the books.  For some employers, determining whether they must comply with the sick leave law will be simple.  For employers with a traveling or remote workforce, the determination is quite a bit more complex, and represents a trap for the unwary.

 

Below is a breakdown of the states, cities and county that mandate paid sick leave as well as the employers that need to comply. In many cases, it does not matter how many employees the employer actually has working in the city or state.  Instead, the laws look to the overall employer size and the number of hours the employee works in the city or state.

 

STATE LAWS

 

Massachusetts

Under the Massachusetts Earned Sick Time law, all employers, regardless of their size, must provide sick leave to employees.  Employers with 11 or more employees must provide paid sick leave, and employers with fewer than 11 employees must provide unpaid sick leave.

If an employer maintained an average of 11 or more employees on the payroll during the preceding calendar year, the sick leave must be paid. All full-time, part-time, seasonal and temporary employees must be counted, including employees who work outside of Massachusetts.  Even temporary employees provided by a staffing agency are counted as employees of both the employer and the staffing agency for purposes of determining whether the employer maintained an average of 11 or more employees.

 

Connecticut

Connecticut’s Paid Sick Leave Act, requires certain employers with 50 or more employees in Connecticut to provide 40 hours of paid sick leave per year to service workers.

 

California

The Healthy Workplace Healthy Family Act applies to any employee who has worked in California for the same employer for 30 or more days within a year from the beginning of his/her employment, even if the employee is a non-resident and/or the company is headquartered out of state.  This means that any employer who has even one employee who works for more than 30 days within a year in California must provide paid sick leave.

 

Oregon

Oregon’s Sick Leave Act applies to employers with 10 or more employees in Oregon (6 or more employees for employers located in Portland). Employers with less than 10 employees (less than 6 for employers located in Portland) must provide up to 40 hours of unpaid protected sick time.         

 

Vermont

Vermont’s Sick Leave Law will go into effect for most employers in Vermont on January 1, 2017.  Employers with five or fewer employees who are employed for an average of at least 30 hours per week do not have to comply with the new law until January 1, 2018.

The law applies to any employer doing business in or operating within Vermont.  This means that any employer with employees in Vermont will be responsible for complying with the law, regardless of where the employer is headquartered.

 

COUNTY ORDINANCE

 

Montgomery County, Maryland

Under the Montgomery County Sick Leave Law, any employer operating and doing business in the County that employs 1 or more persons within the country in addition to the owners must provide earned sick and safe leave to each employee for work performed in the County.

 

CITY ORDINANCES

 

New York City, NY

Employers located outside New York City must provide sick leave to employees who work more than 80 hours per calendar year in New York City. Employers with five or more employees who work more than 80 hours per calendar year in New York City must provide paid sick leave to employees who work in New York City. Employers with one to four employees who work more than 80 hours per calendar year in New York City must provide unpaid sick leave.

 

Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, Plainfield

Under the New Jersey cities’ various sick leave ordinances, workers employed in the relevant city (Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, or Plainfield) for at least 80 hours in a year must be provided with paid sick leave.

 

 

 

Philadelphia, PA

Under Philadelphia’s Promoting Healthy Families and Workplaces Law, any employer that employs at least 10 employees (including full-time, part-time, or temporary employees) for more than 40 weeks a year is obligated to provide paid sick leave.  All chain establishments—those with 15 or more establishments doing business under the same trade name—are also required to provide paid sick leave regardless of the number of  employees they have at the establishments in Philadelphia.

 

*Pittsburgh, PA

This ordinance is currently ineffective due to a judge’s ruling that blocked implementation.  The matter is now before an Appeals Court, but the law remains ineffective pending the appeal.  Under Pittsburgh’s Paid Sick Days Act, any employer that is situated or does business in Pittsburgh, and employs one or more persons in exchange for any form of compensation, is required to provide paid sick leave.

 

Washington, D.C.

The D.C. Accrued Sick and Safe Leave Act of 2008 (SSLA) applies to employers of any size with any employees in D.C. Only employees working in D.C. are counted for the purpose of determining how many sick days must be provided. An employee works in D.C. when:

  • he or she spends more than 50 percent of his or her working time in D.C.; or
  • his or her employment is based in D.C., he or she regularly spends a substantial amount of his or her work time in D.C., andhe or she does not spend more than 50 percent of his or her work time working in any particular state.

 

Chicago, IL

Beginning July 2017, all employees who work at least 80 hours within any 120-day period for an employer that maintains a business facility within the city of Chicago or that is subject to city licensing requirements are entitled to sick leave, regardless of the number of persons the employer employs. In other words, the paid sick leave requirement will apply to most employees in the city of Chicago.

 

Minneapolis, MN

The Paid Sick and Safe Time Ordinance for the City of Minneapolis will be effective July 1, 2017.  Under the ordinance, employers with six or more employees must provide paid sick and safe time, while smaller employers must at least provide unpaid leave. The Ordinance applies to private employers of all sizes, including employers with only one employee, as long one employee works within Minneapolis city limits.

 

Los Angeles, CA

With some limited exceptions, the Ordinance applies to all employees who work two or more hours during a particular week in the City of Los Angeles.

 

 

San Francisco/Oakland/Emeryville, CA (these laws are grouped together because they are almost identical)

Both the San Francisco and Oakland ordinances define employees as anyone working within the geographic boundaries of the respective cities, including part-time and temporary workers. Accrual caps are dependent on the size of the employer.  The size of the employer is based on the total number of employees within the company NOT the total number of employees within geographic boundaries of the city.

 

San Diego, CA

All employers regardless of size must comply with the ordinance. All employees who perform at least two hours of work in the City in one or more calendar weeks of the year are entitled to paid sick leave.

 

Santa Monica, CA

All employers regardless of size must comply with the ordinance. Any employee who works at least two hours in the City in a particular week is entitled to paid sick leave.

 

Seattle, WA

All employers who employ more than four full-time employees (in any city or state) and have at least one employee who performs work within the City of Seattle must comply with Seattle’s Sick/Safe Leave law.

 

Tacoma, WA

Every private sector employer that employs at least one employee is covered by the ordinance. All employees who work within the geographic boundaries of Tacoma are covered, including temporary and part-time employees. Employees who work in Tacoma only occasionally are covered by the ordinance if they perform more than 80 hours of work in Tacoma in a calendar year.

 

Spokane, WA

The ordinance provides paid sick and safe leave to employees performing more than 240 hours of work physically in the city of Spokane in a calendar year.

 

Questions?  We can help. 

Pay Equity in Massachusetts – What Employers Need to Know Before the New Law Takes Effect July 1, 2018  

 

Here’s What We Know:

  • It is no secret that there is still a workplace wage gap between the genders.
  • Prior to the passage of certain laws a little over five decades ago, female employees working full-time were earning on average only about sixty percent (60%) of the amount earned by their male counterparts.
  • Progress has been made in closing the pay gap.
  • According to the Economic Policy Institute, women are taking home 83 cents for every dollar earned by men.
  • According to the Federal Department of Labor, pay equity for younger workers is near parity.
  • Today, in Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:
    • The Federal Equal Pay Act (“FEPA”);
    • Title VII of the Civil Right Act of 1964 (“Title VII”);
    • The Massachusetts Equal Pay Act (“MEPA”); and
    • Chapter 151B of the General Laws of Massachusetts (“151B”).
  • The National Labor Relations Act governs most private sector employers in the Commonwealth and throughout the country. That law makes it abundantly clear that employees have the right to engage in protected concerted activity. That means that no employer is allowed to retaliate against, discipline or terminate an employee who discusses how much money they make or how much money someone else makes.
  • Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

 

What Will Change When The New Law Goes Into Effect On 7/1/18:

  • The current Massachusetts Equal Pay Act (“MEPA”) requires employers to provide “equal pay” for “equal work.” The new law prohibits differences in pay for “comparable work,” which is defined as solely meaning “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
  •  Unfortunately, we will have another vague term that creates an ambiguous standard that will expand employers’ obligations to insure equal pay within it workplace.
  • The current practice of assessing pay equity within job titles and job descriptions must now expand across different jobs to meet the “comparable work” standard.
  •  Wage Disclosure Restriction – The law will prohibit employers from requiring an applicant’s compensation history prior to making a job offer that includes pay/compensation. However, applicants can voluntarily disclose wage history and job applications should note that providing pay history information is voluntary. Make no mistake – the new law does not govern or in any way restrict conversations within the recruitment process related to portable business. Such as: how many clients do you currently work with? How many of those clients are likely to follow you? How much revenue do you expect those clients to generate if they follow you and you land here? Tell us about how you create and maintain your contact network, including the number and types of contacts you have within our industry?
  • We also know that conversations in the workplace about pay are protected.

 

How Can Employers Avoid Liability:

  • Wage differentials between employees of opposite genders must be based upon one of the following factors:
    • Seniority – Provided that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave should not reduce seniority.
    • Merit system;
    • Quality or Quantity of Production – A system which measures earnings by quantity or quality of production, sales, or revenue;
    • Geographic location in which a job is performed;
    • Education, training or experience to the extent such factors are reasonably related to the particular job in question; and
    • Travel, if travel is a regular and necessary condition of the particular job.

 

  • Create a rolling affirmative defense by conducting a self-evaluation of pay practices that is “reasonable in detail and scope in light of the size of the employer” and make “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. This evaluation creates an affirmative defense if it is completed within the three years prior to the commencement of a wage discrimination claim.

 

  • Our Pay Equity Audit will create a rolling affirmative defense for your company.

 

Take Full Advantage Of The Next 23 Months To Achieve Compliance:

  • Benjamin Franklin was right: an ounce of prevention is really worth a pound of cure and nevermore than in wage issues.
  • Take advantage of our Pay Equity Audit to achieve compliance and create a rolling affirmative defense.
  • Revise pertinent policies, your company’s employment application, training and hiring practices to reduce exposure.

 

We can help!

The EEOC reaches out to young workers about religious discrimination.

Religious discrimination remains an issue in the American workplace. In fiscal year 2015, EEOC received 3,502 charges alleging discrimination on the basis of religion, with the top issues alleged being discharge, harassment, terms and conditions of employment, and reasonable accommodation.

The EEOC has issued a one page fact sheet “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.”

If you have young workers in your employ, check out the EEOC Fact sheet.

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Addiction in the Workplace

Earlier this year Massachusetts Governor Charlie Baker signed a comprehensive law intended to combat the state’s opioid addiction epidemic.  In recent years, opiate abuse has claimed thousands of lives in Massachusetts. Unfortunately, addiction is not limited to opiate abuse, and many employers know first hand the unique challenges addiction and drug and alcohol abuse and addiction pose in the workplace.

Title I of the Americans with Disabilities Act, and Massachusetts law specifically permit employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol.  At the same time, the ADA and state law provide limited protection from discrimination for recovering drug abusers and for alcoholics.  This tension leaves employers faced with the dual task of addressing workplace addiction and avoiding the threat of a discrimination lawsuit.

Here is a brief summary of the current state of the law as related to drug and alcohol abuse and addiction:

  • An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace, and employees may be required to follow the Drug-Free Workplace Act of 1988. At this time, the prohibition may include marijuana and medicinal marijuana.
  • An employee who is currently engaging in the illegal use of drugs is not an “individual with a disability” under the ADA or Massachusetts law.
  • Employers who test for the illegal use of drugs are not in violation of the ADA, but must comply with state drug testing laws.
  • Employers may terminate or deny employment to those currently engaged in the illegal use of drugs.
  • Employees who use drugs or alcohol can and should be required to meet the same standards of performance and conduct as other employees.
  • Employers may not discriminate against those with a history of drug addiction provided the individual is not using drugs and is actively engaged in rehabilitation.
  • Employers may not discriminate against alcoholics.  However, this protection does not extend to employees who are currently abusing alcohol.

When are drug users protected by the ADA and state discrimination laws? 

An employee who is “currently engaging” in the use of illegal drugs is not entitled to protection under the ADA and state disability laws.  Employers that consistently enforce workplace rules prohibiting employees from illegally using drugs, and disciplining employees who violate the policy will not be in violation of the ADA.

Where the law in this area can get tricky is that individuals who are undergoing treatment for drug and/or alcohol abuse are protected by the ADA. Specifically the ADA protected individuals:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • who are regarded, erroneously, as illegally using drugs.

Additionally a former drug addict may be protected under the ADA because the addiction may be considered a substantially limiting impairment. However, according to the EEOC Technical Assistance Manual on the ADA, a former casual drug user is not protected:

[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be “substantially limited” because of drug use, s/he must be addicted to the drug. The EEOC Technical Assistance Manual can be found here.

Alcoholism as a Disability

Alcoholism is a recognized disability under both Massachusetts law and the ADA. Individuals regarded as alcoholics, and those with a record of alcoholism, may be considered disabled.That means that if an employee comes to you and tells you that he or she needs to get help or take time off for an AA meeting, an employer should respond the same as any other request for accommodation under the ADA or state law.  Furthermore, if the employee is in fact an alcoholic, treating him or her differently from other employees could expose an employer to a discrimination claim under state and/or federal law. Under Massachusetts law:

An employer may only subject an addicted individual to discipline, including termination, if the employer would subject a non-handicapped individual to similar discipline for similar misconduct; and an employer may not treat the misconduct of an addicted employee more harshly than it would the misconduct of a non-handicapped individual.  Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § X.D (1998). Furthermore, an employer must provide reasonable accommodation to individuals handicapped as a result of their addiction to alcohol where such accommodation permits them to perform the essential functions of the job, unless such accommodation creates an undue hardship.  Id.

Brief Overview of the American With Disabilities Act (ADA)

The ADA prohibits discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, an employer must accommodate employees or applicants who request accommodation for a disability unless accommodation would create an undue hardship.  The ADA also permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” The defense of “direct threat” is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

 

In all cases, the determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job.  In determining whether an individual poses a direct threat, the factors to be considered include:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm.

It is important to note that the EEOC has emphasized that an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”

Employers beware: 

  • The ADA requires an individualized assessment of every disability and request for accommodation.  There is no one size fits all approach that can be applied in every situation.  With each employee and each request for accommodation, the employer should engage in an interactive dialogue with the employee or applicant.
  • Discrimination has been found in cases where employers require routine testing in response to an employee self-disclosing as an alcoholic when other employees were not required to submit to the same routine testing.  As such, unless it is your policy that all employees submit to routine testing, you may not require it of this employee.