What International Women’s Day Means for Your Business

March 8, 2018, is International Women’s Day and this year it is getting a lot of attention. Does anyone remember what went on last year? Or the prior 109 years it was celebrated? Thought not.

McDonalds is turning its Golden Arches upside down. Google is trading its logo to one highlighting 12 women artists and their stories, while also encouraging stories from other women–quite a platform. mcdonalds

Your employees are watching, listening and reading. It is time to be proactive. We have found that a combination of the traditional and non traditional approaches work best. Two examples are our firm’s Equal Pay Audit Service and our Sexual Harassment Prevention Toolkit.

International Women’s Day is a good time to examine workplace issues affecting women. We stand ready to help.

We are proud of the fact our law firm is over 50% women. Call 508-548-4888 or email us at questions@foleylawpractice.com





New Year, New Laws, New Website



Hope your 2018 is off to a great start! We have a robust new website which we updated to change those awful pictures make it easier to use our resources. Please take a minute and check it out? http://www.foleylawpractice.com

Remember those laws we wrote about months ago — Pay Equity Act and the Pregnant Workers Fairness Act? They’re finally here. We break it down with action steps below, including, of course,  sexual harassment:

Massachusetts Pregnant Workers Fairness Act (MPWFA): This law will require all Massachusetts employers to update handbooks and policies; provide reasonable accommodation to pregnant and breastfeeding employees; and provide written notice to all employees about their right to be free from discrimination under this Act no later than April 1, 2018.

The law amends Massachusetts anti-discrimination laws to specifically prohibit retaliation and discrimination against pregnant employees, creating a new protected class to include:  “pregnancy or a condition related to pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child.” While Massachusetts and Federal laws already prohibit pregnancy discrimination, the new law creates an obligation for employers to engage in an interactive dialogue,  provide accommodations to pregnant and breastfeeding employees and provide new, existing and newly pregnant employees with notice of these new rights.  With the creation of a new  protected class comes familiar language and obligations: reasonable accommodation, interactive process and undue hardship.

Reasonable accommodation might include more frequent rest breaks; seating or modified equipment; paid or unpaid time off to recover from childbirth; a private space to express breast milk that is not a bathroom; job restructuring; or a modified work schedule. The interactive process mandate requires employers and employees (or prospective employees) to engage in a timely and good faith interactive process to determine a reasonable accommodation to perform the essential functions of the job. An employer is not required to provide and accommodation that would cause an undue hardship, defined as an accommodation “requiring significant difficulty or expense.” Finally, an employee may not be forced to take a leave of absence if a reasonable accommodation could be made to stay on the job.

Next Steps

  • Update handbooks and personnel policies to reflect the increased obligations under the new law, including the adoption of a specific policy outlining and documenting the interactive process;
  • Train human resources personnel and managers regarding the requirements of the Act;
  • Ensure proper measures are in place to provide written notice in all instances required under the Act; and

Contact us with any questions and assistance in compliance. This law is a big deal.


Pay Equity–It really is on the horizon.

One of the strongest state laws in the country addressing equal pay for comparable work will take effect in Massachusetts on July 1, 2018.

The sweeping Act makes many changes including how to determine comparable work, and prohibiting salary and benefit inquiries before hire, to name a few. Employees will not be required to file a claim with MCAD as before but can go directly to court.

The silver lining of these new obligations is the Act provides an affirmative defense to employers who perform a good faith evaluation of pay practices. Over the past several months many of our clients have utilized out Pay Equity Audit  which creates a rolling affirmative defense for your company. We strongly advise employers to take advantage of this comprehensive and valuable service before July 1, 2018.


Sexual Harassment

The standard sexual harassment compliance advice has been to implement a well-written sexual harassment policy and invest in sexual harassment training. Yet many of the workplaces rocked by recent claims—including the Weinstein Company in California, home to the country’s strictest anti-harassment laws—had a policy and training in place. What can be done?

In response to the changes in climate and the new EEOC guidelines, we have developed a Sexual Harassment Tool Kit. For a flat fee we will provide:

  1.    A digital copy of Attorney Angela Snyder’s No More #MeToos webinar that can be shared with your entire leadership team, serving as the first level of effective sexual harassment training for leadership and HR;
  2.   A comprehensive outline for creating a sexual harassment strategy for your organization;
  3.   A model sexual harassment policy and/or review of your existing sexual harassment policy;
  4.   Sample Letter from Leadership in Word that sets forth your organization and leadership’s commitment to addressing sexual harassment in the workplace that can be modified to meet your specific needs;
  5.    A sample “pulse” survey to send to employees that will help uncover underlying cultural erosions; and
  6.   One hour of attorney time to uncover your unique risks based on demographics and culture. During that discussion we will provide a punch list of action items that will help you finalize a customized sexual harassment strategy.


We believe strongly in proactive advice and want to make this service as accessible as possible. We are offering the Tool Kit for a very reasonable flat fee. Please contact us.


 We can help! Reach out to us at questions@foleylawpractice.com or (508) 548-4888.



Year End Federal Employment Law Changes: 2017 Summary

2017, 2018

Stressed? We can help. Below is a Federal Year End Update that will walk you through important changes in Federal law and enforcement practices.

Join us on December 14, 2017 at 12:00 pm EST for a virtual lunch time (or breakfast depending on your time zone) roundup of changes in Federal and State laws that took place in 2017. It will be quick but informative. From 12:00-12:30 pm, we will cover changes at the Federal level, from 12:30-1:00 pm we will cover notable changes on the East Coast, and from 1:00 pm-1:30 pm we will cover the West Coast. To RSVP, please send an email to nicole@foleylawpractice.com.


What a long, strange trip it’s been. The Affordable Care Act (ACA) did not go away but the overtime rule did-for now (see below). The constant tweets and the initial flurry of Executive Orders gave way to little action by Congress. Yet, there are many changes that will impact employers in 2018. Federal agencies and the courts hammered away on workplace issues. Additionally, sex-based and sexual harassment is being litigated and receiving unprecedented attention, putting unprepared employers at tremendous risk. And states are legislating where Congress has not (more on that soon). Let’s take a quick tour of what is in store for 2018:

Sexual Harassment, Time to Take Action

You can call it the Harvey Weinstein effect, but sexual harassment is not just a Hollywood problem. It exists in all industries and has for years. However, it is now getting some serious press, which means sexual harassment is on employees’ minds, and all employers are at an increased risk of a sexual harassment claim.

Before now, the standard sexual harassment compliance advice has been to implement a sexual harassment policy, and invest in sexual harassment training. Yet, many of the workplaces publicly rocked by recent claims-including the Weinstein Company-are headquartered in California, where the law mandates that employers have strict policies and training in place. What can be done?

First, it is time for all employers to revisit and revise their existing policies and practices. The U.S. Equal Employment Opportunity Commission (EEOC) has released a new document identifying five core principles for addressing and preventing sexual harassment in the workplace. According to the EEOC, the principles are “promising practices,” rather than official guidance or legal requirements; but they are a great place for all employers to start. They include:

  1. Committed and engaged leadership;
  2. Consistent accountability;
  3. Strong harassment policies;
  4. Trusted, accessible complaint procedures; and
  5. Regular, interactive and tailored training.

Next Steps:

  • Update Harassment Policies. Our firm is available to help draft a policy that includes an open door element, multiple avenues for complaints, and a process that will allow employees to file complaints with your organization-rather than going to an attorney or the MCAD or EEOC.
  • Utilize Targeted Training. Our firm offers a unique form of sexual harassment training targeted to your organization’s culture and needs.
  • Create a Communication Strategy. Messages from leadership will set the tone for the entire organization.
  • Join Us for a Sexual Harassment Webinar. Many employers are feeling overwhelmed and concerned about their exposure regarding sexual harassment. Join our attorneys from the comfort of your desk for a webinar on January 17, 2017, at 12:00p.m. We will provide an overview of the state of the laws as well as strategies for addressing harassment in the workplace. To RSVP, please send an email to nicole@foleylawpractice.com.

I-9 Audits and ICE Investigations

Although USCIS does not require employers to submit Form I-9 audits, the U.S. Immigration and Customs Enforcement (ICE) does audit I-9’s, and the agency just recorded its largest I-9 settlement ever, to the tune of $95 million. When viewed alongside recent Executive Orders changing ICE’s immigration priorities and promoting Buy American, Hire American policies, there seems to be a clear pattern of change in enforcement strategies emerging.

Recently, the acting Director of ICE announced that he has instructed the investigative unit of ICE, to increase worksite enforcement audits and inspections by four to five times. ICE has already increased the number of inspections in worksite operations, and these inspections will significantly increase this next fiscal year. In addition, ICE is changing its approach to more aggressively go after employers that hire illegal workers.

1095-B or 1095-C Flags
At the same time, we have noted a marked increase in the number of employer questions related to employees who either present a new social security number or whose 1095’s are rejected by the IRS. The 1095 requirements arose out of the reporting required by the Affordable Care Act. The system verifies whether the name and social security number on the 1095C actually match Social Security Administration records. If they do not match, the system is returning an error message. There are a number of reasons the name and social security numbers on a 1095C might not match, including typos, marriage, divorce, or a “borrowed” social.

Unfortunately, even when the employer is able to fix the 1095C errors, I-9’s and W-2’s will need to be updated as well. The I-9 rules do not require employers to terminate employees for submitting false identity documents, and later requesting to change them. However, they do require employers to complete a new I-9 and attach it to the old I-9 form making note of the reason for the change.

But, Please Don’t Forget About Discrimination Laws

The current administration’s push for “Hire American” cannot be interpreted as “hire only Americans” or even “hire Americans first” without exposing your company to legal liability. First, workplace laws limit what employers can ask in the application and interview process, particularly when it comes to immigration status. Furthermore, once a new hire comes on board, an employer cannot require proof of U.S. citizenship when filling out the Form I-9. The law is clear that employers must accept valid documents and cannot insist on additional documentation because of a suspicion that an applicant is not a U.S. citizen. Federal law also prohibits employers from conducting E-Verify or requesting a form I-9 before the employee has accepted an employment offer, and employment applications must state that.

Next Steps:
The tension between discrimination laws and the actions of the current administration are creating risk for employers. However, there are steps employers can take to mitigate these risks:

  • Review and update applications. Ensure they do not ask unlawful questions related to citizenship. Our firm is available to review and update or draft applications for a flat fee.
  • Training. Any employee who will be conducting interviews or collecting I-9 forms and all HR employees must understand the potential pitfalls outlined above.
  • Forward facing employees should be prepared for ICE inspections.They should know who to contact, and how to reach them immediately. They should know what to say and what not to say. There are specific regulations regarding I-9 production, and California has its own I-9 steps vis a vis ICE.
  • Perform an I-9 audit. If you self-audit, the first step is to ensure that you are using the newest Form I-9. The form was updated twice this year, and a third update may be on the way. We can also assist.
  • We Can Help. Our firm offers training on discrimination as well as I-9 compliance. We draft action plans for I-9 audits and/or ICE inspections, and we have also developed a flat fee I-9 audit intended to help our clients address this thorny issue.

It Is Not Dead Yet: New Overtime Rule Rears its Head

Although the current administration has remained publicly silent on the so called white collar overtime rule, the Department of Labor (DOL) has taken a series of steps that indicate new overtime rules may be coming. First, the DOL issued a news release in July announcing that the DOL would publish a Request for Information (RFI) for the overtime rule. Then this fall the DOL appealed the initial injunction stopping the overtime rule in order to affirm its authority to set a salary threshold for the white collar exemptions. At that time Secretary of Labor Acosta stated: “The particular question on the table is how should the overtime rule be updated…it hasn’t been updated since 2004, and it really is in need of updating.” While the timing of the proposed overtime rule remains up in the air, it is clear that employers should be ready to take another look at their overtime classifications.

Next Steps
For clients we worked with already, you updated your job descriptions, reviewed your exempt and non-exempt classifications, focusing on the employees’ duties in addition to the minimum salary level, and you are now in good shape. Up to date and accurate job descriptions are vital in the defense against various claims and to proper classification of employees.

Employers who hedged and thought they would wait-now it is your turn.Our office performed a number of Position Classification Audits in 2017, and our clients found them to be an extremely effective risk management tool, even without the new overtime rules. Most employee misclassification occurs because the employee is incorrectly classified as exempt in the first place, not because of the salary. We continue to offer this audit under a flat fee arrangement.

Affordable Care Act (ACA)

While the ACA was not been repealed there have been many changes over time. Here are some areas for employers to review in preparation of 2018:

  • For plan years beginning in 2018, employer-sponsored coverage will be considered affordable if the employee’s required contribution for self-only coverage for the least-expensive plan option the employer offers does not exceed 9.56 percent of the employee’s household income for the year (down from 9.69 percent in 2017). The ACA has created a safe harbor for employers to use in lieu of actually knowing an employee’s household income:
    • The employee’s wages, as reported in Box 1 of the W-2, generally as of the first day of the plan year.
    • The employee’s rate of pay, which is determined by the employee’s hourly wage rate multiplied by 130 hours (the monthly equivalent of at least 30 hours per week) as of the first day of the plan year.
    • The individual Federal Poverty Level (FPL). The FPL isn’t officially published until January, until then, employers can use the FPL in effect six months prior to the start of the plan year. For 2018, the maximum monthly premium contribution that meets the FPL safe harbor will be 9.56 percent of the prior year’s federal poverty level ($12,060 in most states for 2017) divided by 12, or $96.08.
  • Out-of-Pocket Maximums: An annual limit on cost-sharing, known as an out-of-pocket (OOP) maximum is set by the department of Health and Human Services (HHS) and applies to all non-grandfathered plans. The ACA’s self-only annual limit on OOP costs applies to each covered individual, regardless of whether the individual is enrolled in self-only coverage or family coverage.
    • In 2017, the OOP maximum is $7,150 for an individual and $14,300 for a family plan. For 2018, the OOP maximum will be $7,350 for self-only coverage and $14,700 for family coverage.
    • The IRS annually sets a separate, lower OOP maximum for high-deductible health plans (HDHPs) that can be linked with health savings accounts (HSAs), known as HSA-qualified HDHPs. For these plans, the OOP maximum for 2017 is $6,550 for an individual and $13,100 for family coverage. For 2018, the OOP maximum will be $6,650 for self-only coverage and $13,300 for family coverage.

Next Steps
The 2018 affordability rate is lower than the 2017 affordability rate, meaning applicable large employers may need to reduce their employees’ share of premium contributions in order to maintain affordable coverage as required by the ACA. We recommend developing a compliance strategy now to avoid ACA assessments under 4980H. Because applicable large employers (50 or more full-time equivalent employees during the previous calendar year) are assessed a penalty of $3,000 per year for each full-time employee who receives a premium tax credit through the ACA exchange, it is important to ensure that plans meet the affordability requirement. The IRS has published a Q&A located here: https://www.irs.gov/affordable-care-act/individuals-and-families/questions-and-answers-on-the-individual-shared-responsibility-provision

As a reminder, large employers-those with 50 or more full-time employees in the previous year-must use IRS Forms to report healthcare coverage offered to full-time employees in the previous calendar year. This year’s deadlines for filing are as follows:

  • Forms 1095-B and 1095-C: January 31, 2018
  • Forms 1094-B and 1094-C with copies of1095-B and 1095-C (paper submission): February 28, 2018
  • Forms 1094-B and 1094-C with copies of1095-B and 1095-C (electronic submission): March 31, 2018

Tip: Employers can receive an automatic 30-day extension by filing Form 8809 with the IRS.




Foley & Foley, PC, 495 Palmer Avenue, Falmouth, MA 02540