Accurate Job Descriptions Needed to Comply With Massachusetts Paid Leave Law

December 10, 2020
, Employment Law, News, Resources

Updated and accurate job descriptions serve many important functions for an employer, including – but certainly not limited to – establishing essential functions of a job for purposes of the Americans with Disabilities Act and its state law counterparts; determining whether a reasonable accommodation is available for a disabled employee under those same statutes; evaluating whether a particular position is exempt or non-exempt under the Fair Labor Standards Act; and managing performance. As of January 1, 2021, updated and accurate job descriptions are also important for purposes of complying with the Massachusetts Paid Family and Medical Leave Law (“PFML”).

As of January 1, 2021, most of the benefits established by PFML become available to employees who work in Massachusetts. For employers who participate in the state-run program (i.e., those who are not wholly insured by a private plan), updated and accurate job descriptions will play an important role in complying with the procedural requirements of Department of Family and Medical Leave (the “Department”).

mployees who want to apply for PFML leave must do the following at least 30 days in advance of the anticipated start of leave (unless a delay is beyond the employee’s control, in which case the employee should do so as soon as is practicable):  (1) notify the employer of the need for leave and the anticipated start date; and (2) apply for leave with the Department of Family and Medical leave online here.

Within five business days after receiving an application, the Department will notify the employer of the employee’s application and request that the employer provide certain information to the Department within ten business days. Among the information required by the Department is a description of the employee’s position.

In addition, when PFML leave is related to an employee’s own serious health condition, the employer may require a fitness-for-duty certification as a condition of the employee’s return to work, provided that the employer has a uniformly-applied policy or practice for all similarly-situated employees. If an employer chooses to implement this requirement, it must provide the employee with a job description and notice of this requirement within ten business days of the notice of approval of leave from the Department.

Given the roles that job descriptions have in the procedures for applying for and receiving PFML benefits, it is advisable that employers revisit those descriptions to ensure that any information they will be providing to the Department or an employee on PFML leave is accurate and relevant.

If you have any questions about the Massachusetts PFML or need assistance evaluating and updated your organizations job descriptions, Beck Reed Riden LLP’s employment attorneys are available to assist.

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 Benefits Start January 1, 2021

October 20, 2020
, , Employment Law, News, Resources

Starting January 1, 2021, most of the benefits established by the Massachusetts Paid Family and Medical Leave Law (“PFML”) become available to employees who work in the state. Specifically, as of that date, an eligible employee taking leave for any of the following reasons can receive pay during leave, which is offered by the state but funded through payroll deductions that have been in place since October 2019:

  1. Management of the employee’s own serious health condition
  2. Management of family affairs while a family member is on active duty overseas
  3. Care of a family member who is a covered service member
  4. Bonding with a child during the first 12 months after the child’s birth, adoption, or foster care placement

Paid family leave benefits to care for a family member with a serious health condition will be available starting July 1, 2021. Intermittent leave is generally allowed for all PFML reasons except for child bonding. An employer may, however, agree to intermittent leave for child bonding.

Employees must provide notice to their employer before applying for PFML benefits. Absent proof of such notice, the Massachusetts Department of Family and Medical Leave, which administers the benefit program, may deny PFML benefits. Unless impracticable due to a delay for reasons outside of the employee’s control, 30 calendar days’ notice before commencement of the leave is required.

If the application for PFML benefits is approved, there is a seven-day waiting period before benefits are payable, which will count against the total available period of leave in the benefit year. This waiting period applies for each application for benefits, with the exception of medical leave during pregnancy or recovery from childbirth if supported by documentation from a healthcare provider that this medical leave is immediately followed by family leave. In that case, the seven-day waiting period for the family leave is not required.

Employers should keep in mind that the length of PFML leave available in an employee’s benefit year varies depending on the reason for such leave. An eligible employee may receive up to 20 weeks of paid leave for their own serious health condition and up to 26 weeks to care for a family member who is a covered service member. Paid leaves for other reasons under the PFML are capped at 12 weeks.

or larger employers who are also covered by the federal Family and Medical Leave Act (“FMLA”), there is an important wrinkle that requires attention in order to ensure consistency between your FMLA policy and leave entitlements under the PFML.

Under the FMLA, eligible employees who work for covered employers are entitled to unpaid, job-protected leave in a defined 12-month period. There are four options from which an employer may choose to establish the applicable 12-month period – including a rolling 12-month period measured backward from the date an employee uses any FMLA leave. This method, however, is not permissible under the PMFL because it provides that the benefit year is the 52-week period beginning on the Sunday immediately preceding the PFML leave.

Accordingly, Massachusetts employers using the rolling backward method to determine the 12-month period under the FMLA may want to consider changing to a different calculation method for administrative ease, such as the 12-month period measured forward from the first date an employee takes FMLA leave. However, any employer that elects to change to a different method of calculating the 12-month period must give all employees at least 60 days’ advance notice of the change, and the change must occur in a way that permits employees to retain the full benefit of their leave entitlement under the method that affords the greatest benefit to the employee.

Employees who want to apply for PFML leave must do the following at least 30 days in advance of the anticipated start of leave (unless a delay is beyond the employee’s control, in which case the employee should do so as soon as is practicable):  (1) notify the employer of the need for leave and the anticipated start date; and (2) apply for leave with the Department of Family and Medical leave online here.

If you have any questions about the intersection of the FMLA with the Massachusetts PFML, or any other questions regarding the PFML in general, Beck Reed Riden LLP’s employment attorneys are available to assist.

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.

Will Employers Always be Required to Permit Teleworking?

October 19, 2020
, , , , Employment Law, News, Resources

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.

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

September 7, 2020
, Employment Law, News, Resources, Wage & Hour

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.

Mid-Year Trade Secret Case Roundup and Legislative Updates

August 31, 2020
, , Defend Trade Secrets Act, News, Resources, Trade Secret

There have been several significant trade secret cases this year. In their “Trade Secrets – Annual Year in Review (2020),” which was accepted by the American Intellectual Property Law Association for its Virtual Annual Meeting, Russell Beck and Hannah Joseph summarize some of the key case holdings and legislative developments from across the country over the past year.

Recent trade secret cases covered by the article focus on issues including standing, spoliation, the level of specificity required in identifying alleged trade secrets, the extraterritorial reach of the Defend Trade Secrets Act, calculation of damages, jury instructions, and others.

In addition, there have been several potentially far-reaching trade secret-related developments. In particular, a decade-plus divide over the application of the Computer Fraud and Abuse Act is heading to the Supreme Court. And the federal government has been considering federal regulation of noncompetes.

The full version of the article can be accessed here.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

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’ legaland 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.

Unauthorized Acts by Shareholder Leads to Judgment in Close Corporation Dispute

August 5, 2020
, , Close Corporations, News, Resources

A recent Massachusetts Appeals Court decision about a close corporation dispute illustrates the challenges that can arise when there is a conflict among a small group of investors.

Being part of a company with a small number of investors or a family-owned business can be a great experience. These companies – known as “close corporations” – are typically run by a tight-knit group of family members or individuals.

When things are going smoothly, and the company’s owners are making a return on their investment, there’s no cause for complaint. As with any business venture, however, internal conflicts can arise. Shareholder disputes in close corporations can take many forms. For example, it is not uncommon for a shareholder or group of shareholders to want a co-owner to leave the company. Differences in management styles or personality conflicts can drive a wedge between business partners. Tensions can also develop between majority and minority ownership interests.

Discord Among Shareholders Leads to IT Lockdown

On July 7, 2020, the Massachusetts Appeals Court issued a decision titled Bernstein v. MyJoVE Corp. describing the deterioration of a relationship among co-founders of a close corporation. The dispute involves MyJoVE, an internet-based publisher of scientific journals, and one of its shareholders. According to the Appeals Court decision, MyJoVE’s former chief technology officer – who was also a thirty percent shareholder – left the company, and later used his knowledge of MyJoVE’s computer systems to gain control of MyJoVE’s website, and to cut off the email access of MyJoVE’s chief executive officer for several days.

MyJoVE was started in 2006, and its co-founders included Nikita Bernstein and Moshe Pritsker. Each co-founder owned thirty percent of the company. Mr. Pritsker is the company’s president and CEO, and Mr. Bernstein was the CTO.

In 2011, Mr. Bernstein stepped down as the company’s CTO, but continued to provide some consulting. In late 2011, according to the Appeals Court decision, Mr. Bernstein “became increasingly critical of what he perceived as various missteps by MyJoVE’s IT department, as well as, more generally, of Pritsker’s management. Bernstein and Pritsker had several disagreements about the extent to which Bernstein would be permitted to interact with other employees, and to have access to the company’s offices. Bernstein also became frustrated that Pritsker was not communicating with him as he wished.”

In November 2012, Mr. Bernstein transferred the company’s website to his personal account, gained access to the company’s emails, and changed the password on Mr. Pritsker’s email account – thereby blocking the company’s CEO from accessing his own emails.

The parties filed claims against each other in a Massachusetts Superior Court, and the company obtained a preliminary injunction compelling Mr. Bernstein to relinquish the company’s domain name, and to return control of the company’s computer system to the company.

The Appeals Court ruled that Mr. Bernstein’s “status as a shareholder of a close corporation did not give him a right to engage in unauthorized acts.” Adding that “[a]llowing a party who has [allegedly] suffered harm within a close corporation to seek retribution by disregarding its own duties has no basis in our laws and would undermine fundamental and long-standing fiduciary principles that are essential to corporate governance.” The Appeals Court explained that if shareholders are “unable to resolve matters amicably, aggrieved parties should take their claims to court and seek judicial resolution.” The Appeals Court upheld the trial court’s $60,313 judgment in favor of the company.

Resolving Shareholder Conflict With Help From Advisors

As this case shows, the very thing that can make a close corporation successful – a small group of investors who decide among themselves how to operate the venture – can also make resolution of internal disputes difficult. Because when the small group of owners disagree about how to run the company or who should be in charge, the path to a resolution is not always clear. When tempers flare, shareholder agreements and by-laws are not always helpful for resolving management deadlock.

It can be tricky to find the right solution for parties who are involved in a close corporation dispute. Sometimes, a collaborative process can yield positive results. Other times, it is necessary to resort to litigation. The type of solution is heavily dependent on the nature of the dispute and the dynamics of the owners.

In most cases, obtaining the advice of an attorney who has experience untangling the thicket of ownership interests and legal obligations is the critical first step toward reaching a resolution. Beck Reed Riden LLP’s attorneys frequently handle these types of disputes – both in and out of court. If you have any questions or if you are involved in a close corporation dispute, please contact us to discuss your situation. Attorneys Russell Beck and Stephen Riden have years of experience in this area and they can be reached via email (info@beckreed.com) or telephone (617-500-8660).

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

March 26, 2020
, , , , Employment Law, News, Resources

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.

A Conversation that Every Employer Should Have with Its eDiscovery Vendor

November 4, 2019
, , News, Resources

eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation.

Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a “small” matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.

Oftentimes, eDiscovery vendors will offer volume-discount pricing and other perks in order to earn a spot on an employer’s coveted preferred vendor list. For those employers who are involved with the vetting of their eDiscovery vendors, below are some considerations to keep in mind.

  1. Your vendor’s capabilities – starting the conversation

 When it comes to capabilities, not all vendors are built the same. It is important, at the outset of your matter, to anticipate the needs of your case and select a vendor who can best meet them. Consider whether your vendor can provide the following:

  • Collection and preservation of data;
  • Forensics analysis;
  • A review platform (and related support and technologies);
  • A managed review of documents; and
  • Expert testimony

Some cases (such as, for example, a large-scale trade secrets litigation) may require the full gamut of services. In those instances, it may be best to retain a vendor that can perform each of the above-listed functions effectively, so as to streamline processes. (In this regard, you can trust – but should verify – vendors’ representations about their capabilities. More on this, below.) In other cases, it may suffice to select a vendor who specializes in only some of these processes. In either instance, it is important to pick the right vendor early in the process; switching vendors mid-case can create myriad issues (including chain-of-custody problems) and complicate expert testimony.

Once you have started the conversation, how do you determine whether your vendor can perform the functions it says it can, and at the speed and with the efficiency and accuracy that you need? Having an informed conversation about each of the above-listed functions will be key.

  1. Forensics analysis – a vendor can be a roadblock or an E-ZPass

When it comes to forensics, partnering with a vendor that is responsive and can produce detailed, accurate reports within an expedited timeframe is essential. Moreover, the vendor should be able to produce the reports that you will need and in a format that is sufficiently user-friendly. (A report that provides in-depth analysis can be much more helpful than a series of Excel spreadsheets containing raw data, although – in most cases – you will want both.) Finally, if you anticipate that your matter might become litigation, you will want to ensure that the person performing the forensics analysis has testified successfully before and can meet the Daubert standard.

With these in mind, here are some questions that you may consider asking your vendor:

  • How long does it take you to image a computer? An iPhone?
  • What is your typical turnaround for providing forensics analysis?
  • How much notice do you need to expedite a forensic review?
  • How big is your forensic team?
  • How many dedicated computers do you have within your forensics department?
  • Do you provide 24-hour and weekend support? If so, is there an upcharge?
  • Will there be a case manager assigned to my matter to ensure continuity?
  • What kinds of forensics reports can you produce? (Standard reports include connectivity, cloud activity, file access, internet activity, and among others.)
  • What do your reports look like? How user-friendly are they?
  • Do you have people who can provide expert testimony?

Don’t be afraid to ask for (scrubbed) examples of forensics reports and expert CVs. You can even request to interview the person who will be testifying about the forensics analysis to get a sense of how he or she might perform during examination. By thoroughly vetting your forensics vendor, in addition to getting the information you need, you will begin to get a sense of how responsive the vendor is and how comfortable you are with them.

  1. Document review – managing costs and litigating effectively

Document review and production can drive up the costs of a litigation significantly. Vendors who are savvy in facilitating large-scale reviews should be able to offer a suite of services designed to help make your document review effective, relatively cost-efficient, and accurate (such as, e.g., predictive coding and AI). Moreover, your vendor should be able to offer early case assessment and help you to select the tools that will help you litigate your case most effectively.

For cases that involve large-scale document reviews, companies should also consider partnering with a vendor that can provide a managed review (i.e., document review that is performed by a team of dedicated contracted reviewers and is supervised by an in-house manager to ensure accuracy and consistency). Partnering with one vendor that can provide smart review tools and a managed review will enable you to streamline and coordinate efforts, likely making review and production a faster and more cost-effective process.

Finally, your vendor should have policies and methodologies in place that are designed to ensure that your production is internally consistent and defensible in court. (And your vendor should be prepared to testify as to its policies and methodologies if needed.)

Accordingly, here are some questions that you might ask your vendor.

  • What review platform(s) do you use?
  • What assistive technology do you offer?
  • Do you offer early case assessment?
  • Can you offer managed review? (If so, is the managed review contracted or in-house? What is the selection process for your managers and reviewers?)
  • Will there be a case manager assigned to my matter to ensure continuity?
  • Do you offer 24-hour and weekend support?
  • If needed, are there individuals at your company who can provide testimony regarding your policies and methodologies?

With respect to review platforms and assistive technology, it’s important to note that some are simply better than others. (A clunky platform or ineffective AI can result in dozens or hundreds of additional wasted billable hours.) And, when it comes to large-scale document reviews, a vendor’s approach to case management is of utmost importance, so it will be important to have a case manager staffed to your matter who you can trust.

  1. Choosing the right partner – seeing is believing

Having an initial conversation with a vendor may tell you about its capabilities, approaches, and experience. Some of the most important qualities, however – responsiveness, speed, accuracy, competence, continuity, and your vendor’s ability to take a proactive role in your matter – can only be determined through experience. Consider trying out a few vendors, and asking others who have worked with them (e.g., outside counsel) about their experience and recommendations.

Hannah T. Joseph and Kyle Vieira, the co-authors of this article, are attorneys with the firm’s litigation group, where they focus their practices on trade secrets law, restrictive covenants, employee mobility, and unfair competition.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our hand-picked team of 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, and are recognized as a leading authority in trade secret, noncompete, and unfair competition law. 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

August 3, 2019
, , , , , , , Employment Law, Resources

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

June 12, 2019
Employment Law, Resources

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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