The Office of the Attorney General recently released an updated Wage & Hour poster. The poster is found here:
This is a great time to check all of your workplace posters to make sure they are up to date.
The Office of the Attorney General recently released an updated Wage & Hour poster. The poster is found here:
This is a great time to check all of your workplace posters to make sure they are up to date.
If you drive a car, I’ll tax the street,
If you try to sit, I’ll tax your seat.
If you get too cold I’ll tax the heat,
If you take a walk, I’ll tax your feet…
George Harrison, The Beatles
Massachusetts Governor Baker has included a new tax assessment on businesses in his 2018 proposed budget and it is a whopper. The proposed tax assessment would impact businesses with 10 or more employees if the employer does not contribute at least $4,950.00 toward each full time employee’s healthcare and have an 80% participation in its group health plan. This health related tax assessment would require a payment of $2,000.00 per full time equivalent employee. Full time employees are defined as those who work 35 hours or more per week. The proposal revives the “fair share” that was eliminated under the Affordable Care Act (ACA)—with a hefty increase. The goal is to raise $300 million to offset the costs of the projected 1.93 million enrolled in MassHealth for 2017. Baker is also proposing various caps paid to providers in an attempt to limit costs and close the gap on discordant charges for the same services.
The short version of how this happened: Way back in 2006, before the ACA, Massachusetts employers with 11 or more employees were required to offer health care coverage to full-time workers or pay a fee of $295 per worker. If an employer offered health insurance, employees were ineligible for MassHealth. To comply with the ACA, the employer fee and the restriction in choosing MassHealth were eliminated. Moreover, the ACA federal mandates to fine employers were pushed back and some eliminated. In Massachusetts that meant more people enrolling in MassHealth and less money to fund it. Can you say quagmire?
The attempt to shift this enormous burden onto the backs of business has understandable resistance. The sky rocketing cost of insurance is the central issue and throwing more money at insurance costs makes no sense. The interplay between the ACA and MassHealth has problems as well– Baker has requested a waiver from ACA provisions that conflict with or add unnecessary costs to the state. And finer points of Baker’s 2018 assessment must be addressed. For instance, what if employees reject employer offered coverage (perhaps in favor of coverage from a spouse) and participation drops below 80%? Under the current provision, the employer will still be required to pay the assessment.
The legislature needs to carefully examine this proposal and its massive potential impact on business. Did I just write “carefully examine” in the same sentence as the legislature? Desperate times… .We urge you to contact your representatives in the Senate and House. Call if you can, email or write if you cannot. We will monitor the progress of this proposed tax assessment and continue to update our clients on any new developments.
The U.S. Senate took a major step toward repealing the Affordable Care Act last week, by voting to approve a budget blueprint that will allow them to essentially dismember the law without the threat of a Democratic filibuster. Meanwhile, in California, the Supreme Court continued the state’s trend toward increasing employee rights and protections. For employers, and those of us who spend our days advising them, this sums up what the next four years will likely look like. The Federal government will roll back employee friendly laws, and revert to a more employer friendly stance, while states California, Massachusetts, New York, New Jersey, and Illinois will continue to ramp up employee protections. It is a brave new world, and one where compliance just got a whole lot more challenging, particularly for employers operating in multiple states.
In California, where the rule for some time has been that employers may not generally require employees to remain on duty or on-call during meal breaks, the California Supreme Court recently issued a new decision, Augustus v. ABM Security Services, Inc., confirming that employers have the same obligations regarding rest breaks as they do regarding meal periods: employees must be relieved of all duties and employers must relinquish all control.
In reaching its decision, the California Supreme Court held: “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” The Court expressed concern that employees would need to stay close to the employer’s premises during their rest breaks; and combined with the affirmative duty to be “on-call,” it was sufficient to establish employer control.
Although the Supreme Court holding does not preclude employers from reasonably rescheduling rest periods when needed, or requesting an exemption from the Division of Labor Standards Enforcement (DLSE), the Court was clear that placing an employee on call during a rest period is not permissible.
Although the Court’s decision is in line with language in applicable IWC Wage Orders, the Labor Code, and prior holdings, it is a good reminder to employers to evaluate their rest break practices to ensure compliance. Employers should review their handbooks and policies to ensure they do not require employees to stay on premises or at a certain location, or to carry cell phones or pagers, or perform any duties whatsoever during breaks. It is common for employers in states outside of California to require employees to remain at or near the premises during rest breaks. It is important that provisions like these be amended for employees in California.
The Commonwealth of Massachusetts is a state steeped in history, and the laws are no exception. Some might call the patchwork of rules known as the Blue Laws archaic. After all, the Blue Laws date back to the 17th century – to the founding of New England. The founders wanted to prevent unwholesome activity on Sundays, and over the years these laws were expanded to include certain holidays. You may be wondering how this impromptu history lesson applies to your workplace. This year, Christmas and New Year’s Day fall on Sundays but, are legally observed on the following Monday, which means that employers receive a double dose of Blue Law headache.
So what are these Blue Laws?
Over the last century, the Commonwealth has gradually narrowed these prohibitions against operating on Sundays and holidays by enacting numerous piecemeal exemptions to the Blue Laws, and there are now fifty-five exemptions, that allow certain businesses to operate legally on Sundays and holidays. However, these existing rules still impose significant burdens on businesses that may include: closure, premium pay, and voluntariness of work requirements on December 26 and January 2.
When certain holidays, including Christmas and New Year’s Day, fall on a Sunday, those holidays are legally observed on Monday. Below we will untangle what this will mean for our different clients. The answer will depend on the nature of your business..
Massachusetts law prevents most manufacturers from operating on Sundays without a permit issued by the local police department. There is a limited exception to this rule that allows manufacturers to operate on Sundays without a permit if there are “manufacturing processes which for technical reasons require continuous operations.” Manufacturers that fall within the exception or who obtain a permit are not required to provide premium pay, and employees can be required to work.
This same law will apply to manufacturers on Christmas (December 25) and New Year’s Day (January 1), both of which fall on Sundays.
Although December 26 and January 2 are considered legal holidays, manufacturers will be able to operate lawfully. However, non-exempt employees cannot be required to work on those days – all work must be voluntary. Again, there is only a very limited exception to the voluntariness requirement under the law if the work being performed is both (1) absolutely necessary and (2) can lawfully be performed on Sunday. As stated above, work on Sunday may only occur without a permit if the work for technical reasons requires continuous operation.
Employees may volunteer to work on legal holidays, and premium pay is not required.
Warehouses and Delivery Centers
An Act Relative to Job Creation and Workforce Development, signed by Governor Baker on August 10, 2016, amended the Blue Laws to allow warehouses and delivery centers to remain open on Sundays and holidays. The Act revised a section of the law that previously applied only to the transport of goods and commerce by motor truck or trailer. The section now includes the “delivery of goods in commerce,” including the operations of facilities and warehouses related to the delivery.
This means that warehouses and delivery centers and transport operations may operate as usual on December 25, December 26, and January 1. As written, the law does not require these employers to provide premium pay, and the voluntariness requirement does not apply.
Retail employers in Massachusetts may not open on Christmas Day (December 25). Retailers operating on December 26 must pay non-exempt employees who work on that day premium pay, defined as at least one and one-half times the employee’s regular rate of pay. Retailers who open on January 1, and January 2 will also be required to pay non-exempt employees premium pay and all work must be voluntary. However, premium pay on December 26, January 1, and/or January 2 can be off set against any overtime worked in the same workweek. There will be no pyramiding of premium pay, which would require employers to pay overtime based on the premium rate.
Additionally, retailers cannot require employees to work on December 26, January 1, or January 2. All work on those days must be voluntary, and refusal to work cannot be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.
Employers who are not retailers or manufacturers may not operate on December 25, December 26, and January 1 unless they are subject to one of the fifty-five exemptions in the Blue Laws, or obtain a permit from the local police department to operate. Non-retail employers that fall under one of the exemptions or receive a permit are not required to provide premium pay, and the voluntariness requirement does not apply (again, religious accommodation requirements must still be met).
These employers may open on January 2, even without an exemption or permit and the premium pay and voluntariness requirements do not apply.
A Word About Religious Accommodation
With holidays falling on Sunday employers should remain thoughtful of religious accommodations to avoid a claim of discrimination. Under Massachusetts law, “it is unlawful for an employer to impose upon an employee or prospective employee as a condition of obtaining or retaining employment any terms or conditions which would require the individual to violate or forego a practice required by his or her religion. This includes but is not limited to requiring an employee or prospective employee to work on any day or portion thereof that the employee observes as a Sabbath or holy day.”
To obtain a religious accommodation, an employee or applicant must demonstrate that the observance of Sunday or the holiday is a required practice of his or her religion and must notify the employer at least ten days in advance of the requested absence and provide notice that the absence is for religious purposes. Once this is done, the employer is required to grant the accommodation unless it would impose an undue hardship.
These laws are enough to give anyone the Holiday “blues,” but we are here to help!
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
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:
Here is the OSHA Fact Sheet addressing the “Final Rule to Improve Tracking of Workplace Injuries and Illnesses.”
For your convenience and information, the links within this Alert contain related links to the list of “certain high-risk industries.”
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.
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.
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:
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.
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: firstname.lastname@example.org or 508-548-4888
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
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.