Beck Reed Riden LLP Attorneys Named Super Lawyers

Russell Beck, Stephen ReedStephen Riden, and Bob Shea have been recognized as Super Lawyers by the 2020 issue of Massachusetts Super Lawyers Magazine. In addition, Nicole Daly, Hannah Joseph, and Jillian Carson have been recognized as Rising Stars by the Magazine.

Super Lawyers Magazine has selected Russell Beck as one of the Top 10 Super Lawyers in Massachusetts for 2020.

Stephen Reed and Stephen Riden were selected as two of the Top 100 Super Lawyers in Massachusetts.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

Beck Reed Riden LLPis 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?

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.

Beck Reed Riden LLP Attorneys Named to 2021 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that five of its lawyers have been named to the 2021 Edition of Best Lawyers, and one of its lawyers was included in Best Lawyers: Ones to Watch.

Russell Beck, Stephen Reed, Stephen Riden, Nicole Daly, and Bob Shea were named to the 2021 Best Lawyers in America list in the following categories:

  • Russell Beck, Commercial Litigation, Employment Law – Management, and Litigation – Labor and Employment
  • Steve ReedCommercial Litigation, Employment Law – Management, and Litigation – Labor and Employment
  • Steve RidenCommercial Litigation
  • Nicole DalyEmployment Law – Management, and Litigation – Labor and Employment
  • Bob Shea, Employment Law – Management

In addition, Hannah Joseph was included in the inaugural edition of Best Lawyers: Ones to Watch in the areas of Commercial Litigation, Labor and Employment Law – Management, and Litigation – Intellectual Property.

Best Lawyers has published their list for over three decades. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America © list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing. For the 2021 Edition of The Best Lawyers in America, 9.4 million votes were analyzed, which resulted in the inclusion of more than 67,000 lawyers, or approximately 5% of lawyers in private practice in the United States.

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.

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.

Robert M. Shea Joins Beck Reed Riden LLP

Beck Reed Riden LLP is pleased to announce that Robert M. Shea has joined our firm as a Partner.

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

For more than thirty years, Bob has advised and counseled employers, executives, professionals and entrepreneurs on labor and employment law matters. He represents clients before federal and state courts and administrative agencies in cases involving claims of employment discrimination, harassment, retaliation, wrongful discharge, breach of employment/restrictive covenant agreements, worker misclassification, and wage-hour violations.

Bob also has extensive experience, both as an advocate and as a neutral, in alternative dispute resolution. As a neutral, he regularly serves as an arbitrator and a mediator, engaged by employers and employees to resolve disputes arising in the workplace, including claims involving contractual disputes under executive employment agreements, partnership agreements, change of control agreements, independent contractor agreements, and separation agreements. He also serves as an arbitrator or mediator in discrimination, harassment, retaliation, and wage and hour disputes.

Prior to joining Beck Reed Riden LLP, Bob was a shareholder in the law firm Ogletree Deakins.

“Bob brings a wealth of experience to the table. He is an outstanding attorney with long-standing expertise in employment law,” said Stephen Riden. “We are proud to have him as a key member of our team,” Riden added.

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.

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