The Kids Are Alright

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Millennials love information. Information means transparency. And that means pay equity cannot hide. A case in point: The EEOC prevailed where two high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as “pizza artists” in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed–the male– was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed. Not the best practice, maybe the worst.

The Kansas federal court ordered that compensatory, liquidated and punitive damages be paid by the store’s holding company (the store had closed). A very expensive lesson learned:

  • Rectify don’t retaliate when mistakes are discovered;
  • REVIEW PAY PRACTICES–we can help.  We have a comprehensive pay equity service that has already helped many clients;
  • Workers, particularly millennials, will talk about pay and will publish information found online.  Keep ahead of trouble with fair pay policies.

We can help.  Check out our Pay Equity Service http://www.foleyworkplacelaw.com/pay-equity-audit-service.htm

Happy Memorial Day

When-is-Memorial-Day-2017

Happy Memorial Day! For many, this is a day to honor fallen soldiers and also a time to get ready for summer.

Have you done the following?

  • Sunscreen?
  • Summer reading list?
  • Pay Equity Audit?
  • Midyear handbook and diagnostic workplace audit?

If you answered “No” to any one of these questions, we can help!  Read on.

SUNSCREEN

It is outside our wheelhouse but we do like to be helpful.  See the latest list from Consumer Reports. http://www.consumerreports.org/sun-protection/get-the-best-sun-protection/

PAY EQUITY

In 2016 alone, California, New York, Nebraska, Maryland and Massachusetts passed aggressive equal pay legislation. If you are not in this group, the EEOC’s proposed expansion to the EEO-1 reports means more pay data will be required from federal contractors and employers with more than 100 employees.

Do I Need to Buy More Software?

Absolutely not.  By now you may have seen software solicitations touting the importance of statistical analysis to comply with pay equity. Beware.  Sizes matters: unless an employer has a significant number of employees performing the same role and a statistically significant amount are women, a statistical analysis will not produce reliable results. Most of our clients should perform a cohort analysis, which better compares the factors affecting pay.

Why Should I Use Your Pay Equity Audit?  

By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential.  Moreover, in Massachusetts you create a rolling affirmative defense by conducting an evaluation of pay practices if it is completed within three years prior to the commencement of a wage discrimination claim. We have developed an effective and painless Pay Equity Audit to achieve compliance and create an affirmative defense.

Why Now? 

The effective date of the MA Pay Equity Law is July 1, 2018.  Many of you are planning for 2018 in your budgets and hiring. Include Pay Equity in that list to be compliant and create the rolling affirmative defense against any future claims.

SUMMER READING

Software slamming aside, Bill Gates is a pretty smart guy.  His summer reading list looks terrific.  Check it out!  https://www.gatesnotes.com/About-Bill-Gates/Summer-Books-2017?WT.mc_id=05_22_2017_10_SummerBooks2017_BG-media_&WT.tsrc=BGmedia

 

MIDYEAR HANDBOOK AND DIAGNOSTIC AUDIT

Probably not high on your reading list but terribly important is your employee handbook.  When is the last time you read it? We recommend that you review and update your handbook on an annual basis. Now is a particularly good time given the many local and state law updates.  Marijuana, equal pay, paid family leave, sick leave—many changes have taken place that are probably not properly addressed in your handbook.

Why Worry about the Handbook?

A well-crafted handbook serves many valuable purposes:

  • Define the culture of your business
  • Set expectations
  • Inform employees of compensation, benefits and rules
  • Provide a clear avenue for dispute resolution, a critical road map for staff

Your Handbook are a valuable tool for you and an important resource for employees.

 

What is the Diagnostic Audit?

The Risk Management Diagnostic Audit is a tool we have developed to allow you to identify and respond to the compliance risks at your workplace. This audit targets your organization’s unique vulnerability and provides action items to put you on the path to compliance.  Please check out our website or call 508-548-4888 for the steps and timelines for this popular service. http://www.foleylawpractice.com/diagnostic-compliance-audit.html

Enjoy the long weekend!

Contact us at 508-548-4888 or info@foleylawpractice.com

 

 

 

MA Wage Act is mightier than your commission plan

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Last month, a Massachusetts US District Court judge held that a former employee who quit was still eligible for $32,000 in sales commissions despite a commission plan that provided otherwise.  (Israel v. Voya Institutional Plan Services, LLCI)  Voya’s commission plan specifically stated that an employee who resigns is not eligible for further commission payments.  The plan was clear and on point.  How did the judge get to yes on the commission?

Voya’s plan could not override the Wage Act requirement that sales commissions be paid promptly once the amount is “definitely determined”–at that point the commission becomes “due and payable.” The judge distinguished a sales commission, as a share of sales revenue generated by an employee, from other types of variable compensation– like a bonus.  Because the amount of commission was known and earned based on sales, it fell under the Wage Act’s strict payment requirements.

Massachusetts employers who provide commissions as part of their pay structure are advised to review their commission plans in light of this decision.  As we all know, the MA Wage Act, with its costly provisions for damages and attorney’s fees, is not to be taken lightly.

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

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!

Let Freedom Ring–Happy July 4th

May the sun in his course visit no land more free, more happy, more lovely, than this our own country! ~Daniel Webster

We have exciting news at Foley & Foley, PC –Attorney Mikaela McDermott will join our team July 12, 2016. She brings years of experience in public and private sector employment and labor law. She will make our strong team even stronger.

The Massachusetts legislature has been busy. Two bills that will impact employers are still in the works and may land on the Governor’s desk soon:

Noncompete reform

The Massachusetts House passed a comprehensive noncompete reform bill on June 29, 2016. Because the Senate passed a fairly similar measure last year, the bill is expected to be approved by the Senate before the session closes on July 31, 2016. Whether Governor Baker will sign the bill is unknown at this time. The major changes:

    • By far the most significant change would introduce what is referred to as a “Garden Leave” clause requirement. Under the current version of the law, employers would have a choice of paying either 50% of the employee’s salary for the length of the non-compete or “other mutually-agreed upon consideration… .”
    • Noncompete period is limited to 12 months in duration unless the employee has breached a fiduciary duty or taken property, in which case 24 months is allowed;
    • Noncompetes are not allowed for several categories of workers:
      • Employees terminated for cause or laid off;
      • Non-exempt (OT eligible) employees;
      • Ages 18 or younger; and
      • Undergraduate or graduate interns.
    • Noncompete must include a right to consult with counsel before signing, and must be provided to the employee by a formal offer or 10 business days before the start date, whichever is earlier.
    • Any noncompete entered during employment must be supported by additional consideration beyond continued employment.
    • A court may not strike out unlawful provisions of a noncompete in violation of this law–the entire agreement will be invalid, which is not the practice now.

Should this bill become law many current noncompetes in Massachusetts will need to be rewritten.

Pay Equity

The Senate Bill Proposal – 2119 “An Act to Establish Pay Equity” is gaining momentum. Attorney Mike Foley recently presented on this topic at a Government Affairs Committee of the New Bedford Chamber of Commerce – more about his presentation

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.

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 Rights Act of 1964 (Title VII);
  • The Massachusetts Equal Pay Act (MEPA); and
  • Chapter 151B of the General Laws of Massachusetts (151B).

Depending upon your perspective, here are the highlights or low lights regarding the pending pay equity law:

    • Significantly changes the definition of “comparable work” under MEPA. That critical phrase under the proposed law “shall solely mean work that is substantially similar that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.. .” The key question is how will this impact merit pay, commission pay and any pay system that is not seniority driven.
    • It would become unlawful for an employer to seek the salary history of any prospective employee.
    • Employers could not prevent employees from disclosing their wages, benefits or other compensation or inquiring about or discussing the wages of any other employee.

There is more to this far ranging bill and we will, of course, keep you informed.

As always, please contact us with any concerns or questions. We can help.


© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

Help is on the way! Implementing the new DOL mandates.

As you know, the final version of the Department of Labor’s (DOL) updated overtime rules have been issued.  In a nutshell, these overtime rules will raise the salary threshold for “white collar” workers from $455 per week to $913 per week starting December 1, 2016.

Our clients and the groups we have presented to have expressed a great deal of anxiety about these new overtime rules.  Many are totally overwhelmed.  Who will be impacted?  How do we handle this? What does compliance even look like?

In response to these concerns, we created a Position Classification Service to help our clients and the groups in which we are involved.  We recognize the incredible vulnerability employers are feeling, and we want to help.  We believe this service provides two vital benefits:

  • Clear, step by step checklists that allow your business to create legally compliant employment classifications and job descriptions.  The resource documents we provide and the classification process will train your employees so that they are better able to create accurate job descriptions and employee classifications going forward.
  • Legal counsel at a flat fee.  We will review your job descriptions and job classifications, edit them, and provide you with clear guidance regarding compliance with these new laws.  Because this review is conducted by outside counsel, it is protected by attorney client privilege.  In other words, if we discover a mistake, that knowledge is protected.

Position Classification Process

 

Please let us know how we can help.

Um, where are those DOL overtime changes again?

Government moves at its own pace. Sometimes the effective date of change is unknown, or as was once famously coined, a “known unknown.” In the case of the changes to the salary threshold for overtime pay, it is unknown when the rule will become effective (and perhaps even what the final salary threshold will be).  There are, however, some knowns.  The rule making comment period closed 9/4/15, with a whopping 293,394 comments.  The rule making website has the Final Rule scheduled for “7/00/16” which we all know is not a real date, even in Washington. This is an election year, however, so the rule will most likely take effect sometime between Labor Day and November 1, 2016. How’s that for accuracy?

What’s an employer to do? Prepare. The change is coming and an employment audit will put you in compliance. We can help. 508.548.4888

 

 

Equal Pay: The White House Gets Serious

On January 29, 2016, the White House, vís a vís President Obama, released its intent to take further action addressing a troubled reality in this country – the gender wage gap. A White House Fact Sheet notes that the median wage of a woman working full-time, year-round in the United States is about $39,600 – only 79 percent of a man’s median earnings of $50,400. In part based on state action in California and New York addressing equal pay laws, President Obama is pushing forward to advance pay equality. His call to action was met, when on February 1, 2016, the Equal Employment Opportunity Commission (EEOC), in partnership with the Department of Labor (DOL), released a finalized proposal of a rule in the Federal Register. See the proposed rule here.

Essentially, the new rule amends the Employer Information Report (EEO-1) that employers with more than 100 employees already file with the federal government, which includes information on the racial, ethnic, and gender breakdown of their employees. The proposed revision would allow the federal government to gather additional pay information including data on employees’ W-2 earnings and hours worked. The government states that the “new policy lays important groundwork for progress toward achieving equal pay, as it will encourage and facilitate greater voluntary compliance by employers with existing federal pay laws- such as by evaluating how they are currently paying their employees.”

It’s important to note that the proposal does not compel employers to collect new data, but rather require the reporting of pay data that employers already maintain in the ordinary course of business. Specifically, the new pay data that’s requested by the government consists of grouping employees into 12 pay bands for 10 different EEO-1 job categories. For employers, the EEOC has published a proposed pay data collection form; it is available here.

As it comes on the seventh anniversary of the Lily Ledbetter Fair Pay Act, a federal law making it easier for employees to bring equal pay claims, this new rule would cover more than 63 million Americans, according to the White House. Federal contractors and subcontractors with between 50 and 99 employees will only be required to submit the current information required by EEO-1, and not the new W-2 wage and hour information, however.

Employers would be encouraged to submit their comments to the proposed rule during the public comment period, which closes April 1, 2016. And if the rule goes forward as planned, it would be slated to take effect September, 2016, with those employers having over 100 employees submitting for the first time, the new pay data, beginning September, 2017.

Final note: Because of the government’s vociferous intent to pursue pay equity, employers would be well-advised to conduct a pay audit of their practices and identify wage gaps that can be attributed to gender-specific, or any other discriminatory differences. And before the EEOC starts to probe into red-flags shown from the data, it would be crucial now for employers to address any of these unjustifiable pay disparities that may be borne out of prohibited discriminatory employment practices.

By: Nikko Stevens