Massachusetts Paid Family and Medical Leave Law: Proposed Revised Regulations and Public Hearing

On May 14, 2020, the Massachusetts Department of Family and Medical Leave released proposed amendments to the regulations for the Paid Family and Medical Leave (PFML) Law.

The Department posted the amendments on its website and held a virtual hearing on June 11, 2020 to receive public comments. Written comments were also accepted for a 24-hour period following the virtual hearing. Given that the benefits provided by the PFML are available to employees beginning in only seven months’ time and that the Department previously issued “final” regulations in July 2019, it is notable that these regulations remain in flux.

Modified Definitions

The proposed amendments modify and expand upon definitions contained in the PFML. While some definitions seek to clarify previously vague terms, such as “active duty” and “good cause,” others alter the substance and procedures associated with the PFML.

Perhaps the most significant proposed clarification to the definitions is that an employer’s workforce would not include self-employed individuals or covered contract workers (those filing IRS Form 1099-MISC). The proposals define covered contract workers as persons who (a) perform services as an individual entity in Massachusetts, (b) reside in Massachusetts, and (c) are not classified as an independent contractor pursuant to the unemployment statute (M.G.L. c. 151A, § 2).

Private Plan Exemptions

The proposed regulations also seek to clarify issues concerning private plan exemptions. Specifically, they provide that private plan coverage must be provided to all “[a]ll employees and covered contract workers and former employees” in order to seek exemption. They also list a number of requirements for a private plan to obtain approval by the Department, including that an employer must inform covered individuals of their rights under the private plan as well as their rights under PFML, along with an appeals process. This allows employees to appeal before the private plan provider within ten calendar days (or more if the employee can provide sufficient reason for the delay). The employee can appeal before the Department after exhausting the private plan provider’s appeal process.

Under the proposed regulations, if an exemption is approved by the Department, an employer may be exempt from the requirement to make contributions for medical leave coverage, family leave coverage, or both. The exemption will be effective for up to one year and may be renewed annually upon subsequent approval.

Applying for PFML

The proposed amendments also seek to clarify the process individuals must follow when applying for PFML benefits. Covered individuals may file an application with the Department no more than 60 days before the anticipated start of family or medical leave.

Individuals must provide the following information to the Department:

  1. Proof that the employer has been notified of the intended leave
  2. Full name of the covered individual
  3. Anticipated start date of the leave
  4. Anticipated length of the leave
  5. Type of leave, and
  6. Expected return date.

The notification to the employer must occur at least 30 days before the anticipated start of family or medical leave. If the individual cannot provide at least 30 days’ notice, the individual must provide notice “as soon as practicable.”

Modified Benefits

The proposed amended regulations calculate benefits based on an individual’s weekly wages at the time of the application. Benefits will be reduced by any amount received through an approved private plan or any other wages received during the duration of the leave. Additionally, weekly benefits may be reduced if the covered individual has outstanding tax or child support obligations – a modification deemed to be a “punitive garnishment” by a commenter during the hearing.

Job Protection and Consequences

The proposed amended regulations are also intended to take the sting out of the presumption of retaliation for negative employment actions taken in the six-month period following an individual’s PFML leave. The revised regulations clarify that a negative change does not include “trivial or subjectively perceived inconveniences.” In addition, it will not be considered retaliation if the employer informs the Department of its bona fide belief that the individual has committed fraud in applying for PFML benefits. The proposed regulations retain language from previous incarnations that provides that the presumption of retaliation will be rebutted only by “clear and convincing evidence” that the employment action was not retaliatory.

Comments at the June 11, 2020 Public Hearing

The public hearing included overwhelming criticism towards measuring intermittent leave in 15-minute increments, highlighting the administrative complications of doing so. Additionally, there was feedback regarding the requirement of social security number(s) in the application process due to its immigration implications. Commenters also pointed out the exclusion of contract workers, along with inconsistencies between definitions in the PMFL and other Massachusetts legislation.

Presumably, the Department is considering comments made at the public hearing and those submitted in writing, though it is not clear at this time whether further revisions are forthcoming. We will continue to provide updates as the PFML continues to evolve.

Thank you to Puneet Dhaliwal for her contributions to this article, which were significant.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

U.S. Supreme Court Rules that Title VII Protects Gay and Transgender Employees

In a landmark 6-3 decision, the United States Supreme Court resolved a circuit split by holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment against individuals based on sexual orientation or gender identity. While Massachusetts has long afforded this protection to gay and transgender employees, more than half of other states in the country do not.  Thus, the import of this case is both far-reaching and historic.

Justice Gorsuch authored the opinion in Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. Jun. 15, 2020), and was joined by Chief Justice Roberts and the Court’s liberal wing – Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Alito was joined by Justice Thomas in a dissenting opinion, and Justice Kavanagh filed a separate dissent. This alignment of the Justices is also significant, given that Chief Justice Roberts and Justice Gorsuch are among the conservative members of the Court, and the latter was President Trump’s first appointee to the Court in 2017. In its briefs on the case and at oral argument, President Trump’s administration had argued against extending the protections of Title VII to gay and transgender workers.

Justice Gorsuch anchored the decision in the text of the statute, which prohibits discrimination because of an individual’s sex (and other protected characteristics):  “It is impossible to discriminate against a person for being homosexual or transgender without discriminating . . . based on sex.”  Accordingly, “an employer who fires an individual merely for being gay or transgender violates Title VII.”

The Supreme Court decision represents a major victory for the LGBTQ community. The Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing federal laws prohibiting discrimination in the workplace, including Title VII, had previously taken the position that Title VII forbids employment discrimination based on sexual orientation or gender identity in guidance issued in 2015. However, the Court’s decision eliminates any chance that an EEOC with more conservative leadership might depart from that stance. For employers, the decision will likely lead to an increase in sexual orientation and gender identity discrimination charges, and the EEOC may pursue such charges more vigorously.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Information for Employers During the COVID-19 Pandemic

On March 18, President Trump signed the Families First Coronavirus Response Act (H.R. 6201) (“FFCRA”), which includes a number of important provisions changing the rights and responsibilities of employers and employees in significant ways as related to the COVID-19 pandemic. The Act, which takes effect April 1 and expires December 31, 2020, includes provisions that (1) expand the availability of FMLA leave; (2) expand access to, and obligations to provide, paid sick leave; and (3) expand the availability of unemployment insurance. An informative Q&A about the FFCRA may be found here. At the same time, many states including Massachusetts have expanded access to unemployment insurance and have streamlined application processes.

The legal landscape is evolving quickly in the face of the COVID-19 pandemic—additional legislation is pending and state and local guidance is changing by the day, and sometimes by the hour. Check back for updates as information becomes available.

Emergency Family and Medical Leave

The expanded FMLA provisions (the Emergency FMLA Act) apply to employers with fewer than 500 employees—including employers with fewer than 50 employees that, prior to the FFCRA and outside of the COVID-19 context, are not normally considered “covered employers” under the FMLA. The provisions apply to full-time and part-time employees who have been on company payroll for at least 30 days, except that employers may choose to exclude employees who are health care providers or emergency responders. Also, employers with fewer than 50 employees may be exempt from the Emergency FMLA requirements if they can demonstrate that the viability of their business would be jeopardized by having to comply with the new law.

In addition to personal or family medical reasons, the FFCRA allows an employee to take emergency leave if they are unable to work (or telework) because they need to care for their child after that child’s school or regular place of childcare has been closed by a governmental authority due to COVID-19.

The first ten days of Emergency FMLA leave may be unpaid, although the employee may choose to use any accrued paid time off (including sick days) to continue to be paid during this time. Alternatively, according to guidance from the Department of Labor, the employee may elect to use the FFCRA’s Emergency Paid Sick Leave (discussed below) during the first ten days. After the first ten days, an employer must pay two-thirds of the employee’s regular rate of pay for the hours that the employee would have worked had they not taken leave. The paid leave is capped at $200 per day, with a maximum total payout of $10,000 per employee.

As with ordinary FMLA leave, employees returning from Emergency FMLA leave ordinarily must be returned to their same or similar positions. However, employers with fewer than 25 employees need not reemploy an employee if, during that employee’s leave, their position was eliminated due to economic conditions caused by the COVID-19 public health emergency and the employer made reasonable efforts to offer the employee an equivalent position.

The FFCRA also provides that an employer may recoup 100% of the qualified family leave wages it pays in the form of a tax credit against its liabilities for the quarter in which the family leave pay is disbursed.

Emergency Paid Sick Leave

As with the expanded FMLA provisions, private employers with fewer than 500 employees are required to provide expanded paid sick leave under the FFCRA’s Emergency Paid Sick Leave Act. The paid sick leave provisions also apply to public agencies of any size.

Covered employers must provide paid sick leave to full-time and part-time employees who are unable to work for one or more of the following reasons:

  • the employee is subject to COVID-19 quarantine or isolation based on government orders;
  • the employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  • the employee is experiencing COVID-19 symptoms and is awaiting diagnosis;
  • the employee is caring for someone who is subject to either number (i) or (ii) above;
  • the employee is caring for their child if the child’s school or daycare center has been closed, or the child’s childcare provider is unavailable due to COVID-19 precautions; or
  • the employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.

An employee is entitled to paid sick leave for the equivalent of two weeks—80 hours for full time employees, or the number of hours a part-time employee would have worked during the two-week period—which can be terminated earlier if the need for the sick leave ceases. Pay during this leave is capped at $511 per day or $5,110 total if the employee takes leave because of reasons (i), (ii), or (iii), and $200 per day or $2,000 total if leave is taken for reasons (iv), (v), or (vi).

An employer may not require an employee to use other paid time off, including other sick leave, before using the provided emergency paid sick leave. Further, an employer may not require the employee to find another employee to cover the time they are taking the sick leave. Finally, an employer may not retaliate or discriminate against an employee who has elected to take paid sick leave provided by the FFCRA.

Employers are required to post a notice of the availability of the emergency FMLA and paid sick leave. The Department of Labor has provided a model notice on its website.

As with emergency paid family leave, the FFCRA also provides that an employer may recoup 100% of the qualified sick leave wages it pays in the form of a tax credit against its liabilities for the quarter in which the sick leave pay is disbursed.

Unemployment Insurance

Federal Changes

The FFCRA provides for $1 billion in additional federal funds to be transferred to the Unemployment Trust Fund for distribution to states that amend their unemployment laws to expand availability of unemployment insurance to those affected by the COVID-19 pandemic.

In particular, to be eligible for additional funds, states must comply with notification and accessibility requirements, ensuring that: employers properly notify employees at termination of the availability of unemployment compensation; applications and assistance with applications are available by at least two of the following methods: in person, over the phone, or online; and that applicants are given proper notifications as to the status of their application throughout the process.

Further, states must increase access to unemployment, including by taking steps toward easing eligibility requirements for claimants, waiving work search requirements and waiting week periods, and avoiding charging employers impacted by COVID-19.

Massachusetts Changes

Massachusetts has passed legislation and issued regulations and guidance, in line with the FFCRA, in order to increase the availability of and ease of access to unemployment benefits. To that end, the normal one-week waiting period has been eliminated and applicants are no longer required to attend a seminar at a MassHire career center. Also, “worksearch” requirements for employees will be interpreted such that every COVID-19-affected claimant will collect benefits. Further, deadlines missed by employees and employers due to COVID-19 may be waived under the “good cause” provision. Employers severely impacted by COVID-19 may also request extensions for filings and paying contributions.

Employees who are quarantined by governmental or medical order, or who leave employment due to reasonable risk of exposure, are eligible for benefits without medical documentation. Workers whose hours have been cut may also apply for partial benefits. Further, employees whose workplaces are temporarily shut down or who are temporarily furloughed may seek unemployment benefits as long as they stay in contact with their employer and are able to perform whatever work there is to do.

Options for Employers Experiencing Slowdowns Due to COVID-19

Employers in Massachusetts and elsewhere may be experiencing slowdowns in business, or may foresee a slowdown in the future, due to COVID-19. Employers needing to make adjustments to their workforce should be aware that they have different options short of permanent terminations or layoffs that may help keep their business afloat while allowing their employees to get paid something. These options include:

  • Reducing hours for hourly employees: cutting work hours allows employees to remain employed on a reduced schedule with the ability to apply for partial unemployment benefits.
  • Reducing pay for salaried employees: assuming a salaried employee is employed on an at-will basis, the employee’s salary can be reduced during a slowdown in business caused by COVID-19.
  • Furloughs or temporary layoffs: employers may require some or all employees to stop working altogether with the expectation that the furloughed employees will return after the COVID-19 crisis is over. Furloughed employees are eligible to collect unemployment benefits during the furlough period.
  • Temporary shutdown: some businesses have been required to close by governmental authorities, or an employer may choose to close their business entirely due to COVID-19. Similar to a furlough, employees may collect unemployment benefits during a temporary shutdown.

Each of these options presents its own complexities, as well as unique pros and cons. We are available to walk any interested clients through the various possibilities.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Department of Labor’s Final Rule on Overtime Raises Minimum Salary Level to $35,568

Vehicles Stopping In Front Of Pedestrian LaneOn September 24, 2019, the U.S. Department of Labor issued a final rule significantly increasing the minimum salary level for the “white collar” exemptions to the Fair Labor Standards Act (“FLSA”).  Absent a legal challenge, the new threshold will be effective on January 1, 2020.

Under the final rule, the minimum salary level for exempt executive, administrative, and professional employees will increase from $455 a week ($23,660 annualized) to $684 per week ($35,568 annualized). Employers will be permitted to pay up to 10% of the minimum salary level in commissions, bonuses, and other non-discretionary incentives, provided that those non-discretionary payments are made at least annually or more frequently.  If the incentive payments fall short by any amount in any given 52 week period, the employer has a single pay period to make a “catch up” payment to ensure that the employee will receive the full $35,568 for the year. A failure to ensure that the employee has earned the minimum salary level would entitle that shorted employee to overtime pay for the entire prior year.

The final rule also increases the total annual compensation required to meet the test for a highly compensated employee, who is exempt from overtime requirements largely on the basis of total compensation paid, from $100,000 to $107,432. While nondiscretionary bonuses and incentive payments (including commissions) may be counted toward the total annual compensation requirement for a highly compensated employee, the highly compensated employee must still receive the standard salary requirement of $684 per each week on a salary or fee basis.

Note that there are special salary tests for Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, and employees in the motion picture producing industry.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Concise Guide to Maintaining an Employee’s Personnel Record

The Massachusetts personnel records law, M.G.L. chapter 149, § 52C, is lengthy and quite dense, and it leaves most who read it confused as to what must and should be included in (or excluded from) an employee’s personnel record.

It’s impossible to create a one-size-fits-all solution to cover every possible personnel-record-related scenario that might arise. But the list below is designed as a concise tool to assist employers and human resources professionals in making the necessary day-to-day determinations about what information to maintain in an employee’s personnel file.

For any questions regarding this list or other employment-related issues, please do not hesitate to reach out to us.

Personnel Files: What to Include and Exclude

Include:

  • Basic Employee Information (name, address, phone number, emergency contact)
  • Employment/Orientation Records
    • Resume and/or Job Application
    • Offer of Employment
    • Job Title and Description
    • Handbook Acknowledgement
    • Consent Forms for Background Check and/or Drug Testing
  • Employee Contracts/Agreements (g., noncompete agreement, non-disclosure agreement)
  • Performance Records
    • Performance Evaluations
    • Self-Evaluations of Performance
    • Disciplinary Warnings
    • Performance Improvement Plans
    • Notes on Oral Performance Counselings
    • Information that Has Been or May Be Used to Negatively Affect the Employee’s Job
  • Training Records
    • Harassment Training Acknowledgment
    • Records of Other Job-Related Training
  • Compensation Records
    • Rates of Pay, Salary, or Commission
    • Other Compensation Paid (g., bonuses)
  • Termination Records
    • Termination Notice
    • Resignation Letter
    • Documentation of Involuntary Termination
    • Exit Interview
    • Separation Agreement
    • Confirmation of Payment of Wages on Separation Date (for Involuntary Terminations)
    • Documents Regarding any Claim for Unemployment Benefits

Exclude and Store Separately:

  • I-9 Forms and Copies of Identification
  • Background Test Results
  • Drug Test Results
  • Medical Records Information (including FMLA certifications, requests for reasonable accommodation for a disability)
  • Payroll Records Containing Social Security Numbers, Banking Information, or Other Confidential Information (g., IRS Form W-4, direct deposit forms, wage garnishment)
  • Workplace Complaints
  • Materials Related to Workplace Investigations
  • Personal Information About Other Employees

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Delays Contributions Toward Paid Family and Medical Leave

Late in the evening on June 11, 2019, Massachusetts Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo made the following joint announcement delaying by three months the start of payroll contributions to fund the state’s new Paid Family and Medical Leave benefits:

To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify the program design. We look forward to the successful implementation of this program this fall.

Prior to the announced delay, which still must be approved by the Massachusetts legislature and signed by the Governor, employers were faced with having to begin making payroll contributions on July 1, 2019, even though employees cannot begin making use of the new leave benefits until January 2021. Those contributions now have been pushed back to October 1, 2019. To ensure that the leave program remains funded at the same level despite the delay, the contribution rate will increase from 0.63% to 0.75% of wages, meaning that employees will experience considerably higher payroll deductions from their paychecks.

The new law provides employees with 12 weeks of paid family leave and 20 weeks of paid medical leave for their own serious health conditions at a rate equivalent to 80% of their wages up to half of the state average weekly wage. Thereafter, the rate falls to 50% of wages. The maximum weekly benefit will be $850. Benefits are paid out of the fund created by employer contributions. Under the law, employers are required to contribute at least 60% toward medical leave but are not required to contribute anything toward family leave. Employers are free to contribute more than the minimum amounts. It remains to be seen whether these amounts will change with the delay.

The delay will also allow the state to clarify issues in the new law regarding intermittent leave, the definition of serious health condition, and how the state law aligns with the federal Family and Medical Leave Act. Hopefully, these and other issues will be addressed in final regulations issued by the Department of Family and Medical Leave, the newly formed state agency responsible for overseeing the new law. Stay tuned for more information as things develop.

The lawyers at Beck Reed Riden are here to assist employers as the new Paid Family and Medical Leave law takes shape.

eck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Department of Labor Proposes Increase to Salary Threshold for White Collar Exemptions

Related imageOn March 7, 2019, the United States Department of Labor (DOL) issued a new proposed rule that would raise the minimum salary threshold for “white-collar” employees under the Fair Labor Standards Act (FLSA).

Under the proposed rule, the minimum annual salary an employee must earn to qualify for either the executive, administrative, or professional exemption under the FLSA would increase from $23,660 ($455 per week) to $35,308 ($679 per week). At the same time, the minimum annual salary necessary to meet the definition of a “highly compensated employee” would increase from $100,000 to $147,414. The new proposed rule does not contain any changes to the primary duties employees still must perform to qualify for one of the white-collar exemptions.

In announcing the new proposed rule, Secretary of Labor Alexander Acosta stated, “At my confirmation hearings, I committed to an update of the 2004 overtime threshold, and today’s proposal would bring common sense, consistency, and higher wages to working Americans.”

The DOL last proposed an increase to the salary threshold for the white-collar exemptions in May 2016 when, under the Obama Administration, it proposed increasing the threshold to $47,476. On November 22, 2016, just before the new threshold was to take effect, the United States District Court for the Eastern District of Texas enjoined the DOL from implementing it. Since that time, the DOL has been developing the new proposed threshold.

The DOL expects to issue a final rule on the new salary threshold in January 2020. Until then, employers should remain vigilant in classifying their employees properly under the current threshold. Once a new threshold is finalized, employers should be prepared to either adjust salaries to meet the new threshold or reclassify affected employees as non-exempt.

eck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Raises Minimum Wage in “Grand Bargain”

On June 28, 2018, Massachusetts Governor Charlie Baker signed into law the “Grand Bargain” bill, that, over the next five years, will gradually raise the minimum wage to $15.00 per hour, require paid family and medical leave for Massachusetts employees, and phase-out Sunday and holiday time-and-a half pay for certain retail employees.

Minimum Wage Increase

The first minimum wage increase will take effect on January 1, 2019, at which time the minimum wage will increase from its current rate of $11.00 per hour to $12.00 per hour.  Thereafter, it will increase by 75 cents on January 1st of each year until it reaches $15.00 per hour in 2023.  Over the same five-year period, the minimum cash wage applicable to tipped workers will increase from $3.75 per hour to $6.75 per hour, with the rate of pay increasing by 60 cents each January 1st from 2019 to 2023.

Paid Family and Medical Leave

The new law also establishes one of the most generous family and medical leave programs in the nation, which will be phased in over several years.  While administrative regulations from a newly-created state agency, the Department of Family and Medical Leave, will be forthcoming and will provide more specific guidance to employers with regard to implementation of the law and obligations regarding family and medical leave, the key provisions are evident.

Effective July 1, 2019, employers must post a notice of benefits available under the act and provide employees with a similar written notice of the benefits within 30 days of the employee’s date of hire.  As of July 1, 2019, employers will also start contributing to the Family and Employment Security Trust Fund, which will fund the leave program, at a contribution rate of 0.63 % of each employee’s wages, which is subject to annual adjustment.  Employers may require employees to pay a portion of the contributions.  Employers with fewer than 25 employees in Massachusetts are not required to pay the employer share of the contributions.

Effective January 1, 2021, eligible employees will be able to take up to 12 weeks of paid family leave per benefit year and up to 20 weeks of paid medical leave per benefit year, with a maximum of 26 total weeks of paid leave per benefit year.  Employees are eligible for medical leave if they have a serious health condition.  Employees are eligible for family leave:

  1. To care for a family member with a serious health condition;
  2. To bond with a child during the first 12 months after the child’s birth or placement for adoption or foster care; or
  3. To attend to exigent circumstances arising out of a family member’s active military duty or impending call to active military duty.

Note that if leave is taken to care for a family member with a serious illness arising out of military service, up to 26 weeks of leave may be taken in a benefit year.  Paid family or medical leave under the law will run concurrently with any leave available to the employee under the Family Medical Leave Act or the Massachusetts Parental Leave Act.

After a seven-day waiting period (during which an employee can use accrued sick or vacation time), the employee will be entitled to wage replacement from the Family and Employment Security Trust Fund equal to 80% of their wages, up to a maximum of 50% of the state average weekly wage, and 50% of their wages above that amount, up to a maximum of $850 per week or an adjusted amount that equals 64% of the state average weekly wage.

The law also includes a notable anti-retaliation provision.  Retaliation against employees for exercising their rights under the new law is prohibited.  Significantly, any negative change in the terms or conditions of employment that occurs during a leave or within six months of the leave creates a presumption of retaliation.  Employer can rebut this presumption only by clear and convincing evidence of a non-retaliatory and independent justification for the change.  The law also provides for a private right of action with a three-year statute of limitations.  Available remedies include reinstatement, payment of three times the employee’s lost wages and benefits, and reasonable attorneys’ fees and costs.

Gradual Elimination of Sunday Premium Pay

Currently, the Massachusetts “blue laws” require that most non-exempt employees who work in retail establishments must be paid time-and-a-half  on Sundays and certain holidays.  This requirement will be gradually phased out over the coming years.  On January 1, 2019, the premium rate will decrease to 1.4 times the regular rate of pay.  Thereafter, it will decrease by 0.1 each January 1, until it is eliminated altogether on January 1, 2023.

Next Steps

As a result of the “Grand Bargain,” Massachusetts employers will want to prepare for the wage adjustments to minimum wage and Sunday premium pay that begin to take effect on January 1, 2019 and will continue annually until 2023.  Although the law’s provisions regarding paid family and medical leave are not fully effective until 2021, regulatory guidance is expected in 2019 and certain provisions are effective in July 2019 as well.  Employers are well advised to review their current leave policies, explore and anticipate procedures and practices to meet the leave law requirements, and remain abreast of any forthcoming guidance and regulations.

eck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

New Guidance for Massachusetts Equal Pay Act Issued

In advance of a rapidly approaching July 1, 2018 effective date, the Massachusetts Attorney General’s Office has issued highly anticipated guidance concerning pay equity amendments to the Massachusetts Equal Pay Act (“MEPA”).

The guidance is available here.

he guide provides the following overview of MEPA:

In 1945, Massachusetts became the first state in the country to pass an equal pay law. But the gender pay gap persists in Massachusetts and across the country. In Massachusetts, on average, women working full time earn only 84.3% of what men earn. The gap is even larger for some women of color.

On July 1, 2018, an updated equal pay law will go into effect in Massachusetts, providing more clarity as to what constitutes unlawful wage discrimination and adding protections to ensure greater fairness and equity in the workplace. The statute, Chapter 177 of the Acts of 2016, An Act to Establish Pay Equity, amends the Massachusetts Equal Pay Act, M.G.L. c. 149, § 105A (“MEPA”).

MEPA generally provides that “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The law defines “comparable work” as work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions.

Beck Reed Riden LLP’s attorneys are ready to assist employers with any questions and concerns they might have concerning this new guidance and how to comply with the MEPA amendments.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Reminder: Employers must use new Form I-9 by September 18 (2017)

On or before September 18, 2017, all employers must begin completing the recently updated Form I-9, Employment Eligibility Verification for each new employee hired in the United States, including citizens and noncitizens.  Form I-9 is used for verifying an individual’s identity and authorization to work in the United States.

The updates to the new Form I-9 include additions to the list of acceptable documents that employers can use to verify an employee’s identity and employment authorization. The revised Form I-9 does not change an employer’s storage and retention obligations. Form I-9 can be stored on paper, on microform, or electronically.  In addition, an employer must retain a Form I-9 for the duration of the employee’s employment and after termination for either three years after the date of hire, or one year after the date an employee’s employment is terminated, whichever is later.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

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