Will Employers Always be Required to Permit Teleworking?

The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees when such accommodations are needed to permit employees to perform the “essential functions” of their jobs.

However, an employee who cannot perform the essential functions of a job, with or without an accommodation, is not considered to be a “qualified individual with a disability” under the ADA, and an employer generally is not required to provide an accommodation to the employee. In other words, an employer is not required to eliminate an essential job function to accommodate an employee with a disability.

Employers sometimes choose to excuse an employee from performing an essential job function (e.g., reporting to the workplace) for a period of time to accommodate the employee’s health needs.

When the time period during which the essential job function is excused becomes extended or indefinite, the employer runs the risk that the excused job function may no longer be considered an essential part of the job for purposes of analyzing rights and obligations under the ADA. As a result, the employer may be required to continue providing the accommodation.

his scenario is playing out throughout the country as employers begin asking employees who have been teleworking to return to the workplace. Some employees are reluctant to return because they have underlying health conditions which put them at increased risk of serious illness if they become infected with COVID-19. These health conditions, combined with extreme risks created by the pandemic, may mean that the employees have a disability under the ADA and are entitled to receive reasonable accommodation from their employer to permit them to perform the essential functions of their job.

If the ability to continue teleworking is the requested accommodation, employers must assess whether reporting to the workplace remains an essential job function, particularly if employees have been working remotely for several months.

EEOC Guidance

The Equal Employment Opportunity Commission (“EEOC”) addresses this topic in its recently updated “Technical Assistance Questions and Answers” on issues involving COVID-19 and the ADA and other equal opportunity laws. Assuming an employer grants telework to employees for a period of time in response to COVID-19 and then reopens the workplace and recalls employees to the worksite, the EEOC posits the question: “does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement”?

In an answer that will please employers, the EEOC states that, “[t]o the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then the request – after the workplace reopens – to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function.”

Noting that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability,” the EEOC elaborates by stating that “[t]he fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

An employer is not prohibited “from restoring all of an employee’s essential duties” when “it chooses to restore the prior work arrangement” and may evaluate “any requests for continued or new accommodations under the usual ADA rules.”

Employers, however, should understand that the remote work experience during the pandemic will be relevant when evaluating whether essential job functions can be performed through telework. According to the EEOC, the period of providing telework “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new request [for accommodation] in light of this information.”

Thus, although allowing telework during the past several months does not mean that employers cannot restore report to the workplace requirements, it does mean that employers should consider a demonstrated ability to perform essential functions remotely when responding to requests to telework as an accommodation for a disability.

As always, employers should evaluate requests for accommodation on an individualized case-by-case basis, and an employer and an employee should engage in a “flexible, cooperative interactive process” to consider what, if any, accommodations might be needed to allow the employee to perform the essential functions of the job.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

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.

Bob Shea to Speak About Returning High Risk Employees to Work

Bob Shea will appear on a panel of experts assembled by Massachusetts Lawyers Weekly titled “Legal Aspects of Returning High Risk Employees to Work.”

The free event will be held on Tuesday, September 15, at 10 a.m. ET on Zoom. More information and registration is available here.

Anyone who is unable to attend the live session should still register, as Lawyers Weekly will send a recording and the slides after the presentation.

The panel also features:

  • Robert Young, Esq., of Bowditch and Liam O’Connell, Esq., of Nutter

Panelists will cover a wide range of topics, including:

  • Determining who is considered high-risk
  • Addressing issues under the Americans with Disabilities Act and other anti-discrimination laws
  • Considerations in implementing options such as telework or revised duties that minimize contact with other employees/customers to address high-risk employee concerns
  • What to do if employees refuse to return to work
  • Best practices checklist

Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

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. Department of Labor Issues Guidance on Tracking Hours of Employees Working Remotely

The COVID-19 pandemic has resulted in a tremendous rise in the number of employees working remotely. Also, many employees are spending parts of their “normal workday” on non-work matters, such as tending to childcare responsibilities and, as the school year starts, supporting remote schooling and/or modified school schedules for their children, which is resulting in employees working irregular, non-scheduled hours. With so many employees not physically reporting to work, and many also working hours outside their pre-pandemic schedules, employers face increased challenges tracking the hours nonexempt employees work and ensuring those employees are paid properly.

response to these challenges, the U.S. Department of Labor (DOL) recently issued Field Assistance Bulletin (FAB) No. 2020-5, providing guidance on employers’ obligation to track the number of hours of compensable work performed by employees “who are teleworking or otherwise working remotely.” The FAB reaffirms the following employer obligations under the Fair Labor Standards Act (FLSA) and the DOL’s interpretive rules:

  • Employers must compensate their employers for all hours worked and work not requested but “suffered or permitted” is work time that must compensated.
  • Employers are required to “exercise [their] control” to ensure that work is not performed if employers do not want it to be performed.
  • Employers “bear the burden of preventing work when it is not desired.” The mere promulgation of a rule against performing unscheduled work is not sufficient; employers have “the power to enforce the rule and must make every effort to do so,” including through disciplinary action.
  • An employer’s obligation to compensate employees for hours worked applies when the employer has “actual notice” or “constructive notice” that the work was performed.
  • An employer has constructive notice if the employer “has reason to be believe work is being performed,” which can occur “if the employer should have acquired knowledge of such hours through reasonable diligence.”
  • However, an employer’s obligation to “make every effort” to prevent unwanted work being performed “is not boundless,” as “[t]he reasonable diligence standard asks what the employer should have known, not what ‘it could have known.’”

Importantly, the DOL states in the FAB that an employer generally may satisfy it obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by establishing a reasonable procedure for an employee to report unscheduled work time. If an employee then “fails to report unscheduled hours worked through such a procedure [and the employer is not otherwise notified of hours worked], the employer is generally not required to investigate further to uncover unreported hours.”

According to the DOL, when an employee “fails to follow reasonable reporting procedures [he or] she prevents the employer from knowing its obligation to compensate the employee.” Of course, “the employer cannot implicitly or overtly discourage or impede accurate reporting [of hours worked], and the employer must compensate employees for all reported hours of work.”

Key Takeaways

Although for the most part the FAB reaffirms existing law and the DOL’s interpretive rules, it nevertheless provides timely guidance to employers, including those who are now facing new or expanded challenges in managing employees working remotely. The key takeaways for employers are:

  1. Employers are required to pay employees for all hours worked when employers either know or should have known the work was performed.
  2. If an employer does not want its nonexempt employees to work outside their scheduled work hours (without prior management authorization), the employer should promulgate a rule prohibiting such work and be consistent in enforcing the rule, including through disciplinary action, when appropriate.
  3. Employers should communicate clearly to nonexempt employees that they are to record and report all hours worked, including non-scheduled hours, and should have a procedure for employees to do so. This policy and procedure can be part of an employer’s broader remote work policy and, again, should be consistently enforced.
  4. Employers should never withhold pay for hours worked, even when the work time is unauthorized or not properly reported. An employer that fails to pay nonexempt employees for hours the employer knew or should have known were worked faces the prospect of substantial liability, including a multiple of the unpaid wages under the FLSA and state wage laws, plus costs and attorneys’ fees.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

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.

Bob Shea to Moderate Panel on Massachusetts Wage Act

Bob Shea will moderate a panel at the Massachusetts Bar Association titled “Massachusetts Wage Act: Treble Your Knowledge.” Bob serves on the Massachusetts Bar Association Labor and Employment Section Council. The panel will be co-moderated by Michelle De Oliveira of Kenney & Sams.

The free event will be held on Monday, July 27, 2020, from 1 to 2:30 p.m. on Zoom. More information and registration is available here.

The panel features :

  • Richard S. Loftus, Esq., of Hirsch Roberts Weinstein LLP
  • Hillary Schwab, Esq., of Fair Work PC
  • Katherine Watkins, Esq., of the Massachusetts Attorney General’s Office

This program will examine the interplay between federal and state wage and hour laws, as well as recent developments under the Massachusetts Wage Act, with a focus on:

  • Overview: Fair Labor Standards Act and Massachusetts Wage Act
  • What is a wage?
  • Commissions vs. bonuses
  • Treble damages — when are they triggered and to what do they apply?
  • Independent contractor issues
  • Joint employer issues
  • Attorney General’s Office’s enforcement priorities and initiatives
  • When the Attorney General’s Office pursues civil vs. criminal penalties

Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

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.

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.

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