Murphy, Hesse, Toomey & Lehane, LLP

Providing our clients with state of the art legal service while maintaining an emphasis on personalized attention, accessibility and efficiency

One of the 50 largest firms in Massachusetts, our years of experience and resources offer clients throughout New England and nationally a wide range of legal services while maintaining a “hands-on touch” that is important in Client-Attorney relationships. To provide this kind of service, we established a multi-service firm comprised of skilled practitioners from a variety of fields. This enables us to bring to our clients the breadth of experience and depth of knowledge required for complex cases. Our broad resources and technology enable us to represent clients in a comprehensive and cost efficient manner.

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A Hazy Situation - Marijuana and the Workplace: Current Law and Challenges Facing Today's Employers

Arthur Murphy, Kier Wachterhauser and Sarah Catignani recently published an article regarding the use of marijuana in the workplace in the September/October 2014 issue of HR Advisor. The proliferation of state laws legalizing the use of marijuana has the potential to create a bit of a hangover for employers.  Employers and HR professionals must carefully monitor both legislation and case law as it continues to develop in this area.  One thing is certain, this is an area where litigation will occur.  Planning ahead is critical to remaining in front of the curve.  Adapting policies now and crafting plans for addressing medical marijuana in the workplace will, at a minimum, ensure fair and consistent treatment of employees and provide your workforce with a greater level of predictability in this changing environment.

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Legal Updates

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  • Play Ball! National Labor Relations Board Declines Jurisdiction in Northwestern University Football Players Case

    Today, August 17, 2015, the National Labor Relations Board (“Board”) unanimously decided that it would not exercise jurisdiction over Northwestern University scholarship football players, and thus those players do not have a federal right to organize and bargain collectively (at least today).

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  • DESE Publishes Guidance to Changes in Physical Restraint and Time-Out

    On approximately July 31, 2015, the Department of Elementary and Secondary Education (“DESE”) published additional guidance on the implementation of physical restraint and time-out under the revised regulations at 603 CMR 46.00 et seq. Although the revised regulations are not effective until January 1, 2016, DESE has indicated that schools are strongly encouraged to begin working towards implementation in the fall of the 2015-2016 school year.

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  • U.S. Department of Labor Proposes Increasing Salary Minimum for Federal Overtime

    In response to a March 2014 order from President Obama to “modernize and streamline” federal overtime regulations, the U.S. Department of Labor (“DOL”) has recently proposed important changes that could ultimately require employers to pay overtime wages to millions of workers across the nation that are currently considered “exempt” from overtime requirements

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  • U.S. Supreme Court Issues Two Landmark Decisions

    The United States Supreme Court issued two landmark decisions addressing same-sex marriage and the Affordable Care Act (“ACA”).

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  • Earned Sick Time Law: Attorney General Issues Final Regulations; Law Effective July 1, 2015

    Voters in Massachusetts approved the Earned Sick Time Law (the “Law”) in November 2014.  Among other provisions, the Law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year.  The Law is scheduled to go into effect July 1, 2015.  Following the issuance of proposed regulations on April 24, 2015, and an extensive comment period, the Massachusetts Attorney General released Final Regulations on June 19, 2015, further clarifying many aspects of the Law and making changes to the proposed regulations.

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  • Attorney General Announces PROPOSED Regulations Regarding Earned Sick Time Law, Open Comment Period

    The Massachusetts Office of the Attorney General (AGO) has issued proposed regulations regarding the Earned Sick Time Law that was approved by voters on November 4, 2014.  The Earned Sick Time law will go into effect on July 1, 2015 and generally requires employers to provide up to 40 hours of earned sick time per year to their employees for a wide variety of covered reasons.

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  • EEOC Announces PROPOSED Rule Regarding Wellness Programs, Open Comment Period

    The federal Equal Employment Opportunity Commission (“EEOC”) has issued proposed regulations regarding wellness programs.  The proposed rule provides guidance on the extent to which the Americans with Disabilities Act (“ADA”) permits employers to offer incentives to employees to promote participation in employer-offered wellness programs.  The proposed rule can be found here.  The primary purpose of the EEOC’s proposed rule is to reconcile provisions in the Affordable Care Act (“Act”), which allow for health-contingent wellness programs, with provisions in the ADA which place limitations on some components of wellness programs.

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  • Earned Sick Time Law Update: Massachusetts Attorney General Publishes Notice for Employers and Clarifies Temporary “Safe Harbor”

    Voters in Massachusetts approved the Earned Sick Time Law (the “Law”) in November 2014.  Among other provisions, this Law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year. The Law is scheduled to go into effect July 1, 2015.  The Attorney General is in the process of drafting and issuing regulations on the Law.

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  • U.S. Supreme Court Rules Employers Must Accommodate Religious Employees and Employment Applicants Even Without Request for Accommodation

    On June 1, 2015, the United States Supreme Court issued a ruling in the case of EEOC v. Abercrombie & Fitch Stores, Inc. clarifying employer obligations with regard to religious discrimination.  The Court held that employers need not have actual knowledge of an employee’s or applicant’s religious belief or practice in order to be liable for religious discrimination under Title VII.  Unconfirmed suspicion of the possible need for a religious accommodation, the Court found, was sufficient to hold an employer liable under Title VII. 

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  • Department Of Public Health Changes Requirements To Registered Marijuana Dispensary Registration Process

    “An Act for the Humanitarian Medical Use of Marijuana” (“Medical Marijuana Act”), approved by voters at the November 2012 election, contemplates the establishment of medical marijuana treatment centers (also known as registered marijuana dispensaries, or “RMDs”) in the Commonwealth of Massachusetts.  Through its regulations, the Massachusetts Department of Public Health has established an application and registration process for RMDs

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  • Approaching a Level Playing Field: Work Product May Be Subject To Exemption Under Public Records Law

    Work product includes materials that are “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney . . . .)”  Mass. R. Civ. P. 26(b)(3).  Examples of work product are investigatory or consultant studies or reports, as well as documents containing the mental impressions of an attorney or consultant.  In General Electric Corp. v. Department of Environmental Protection, 429 Mass. 798 (1999), the Supreme Judicial Court previously held that work product was not exempt from disclosure under the Public Records Law. However, in a recent decision (DaRosa v. City of New Bedford, SJC-11759, 2015 WL 2258628 (May 15, 2015)), the Supreme Judicial Court revisited General Electric and held that, in certain cases, work product may be considered exempt under the Public Records Law.  The Supreme Judicial Court also clarified the scope of what is regarded as the “derivative attorney-client privilege.” 

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  • Massachusetts Attorney General Announces Temporary Delay of Sick Leave Law Requirements for Some Employers

    Voters in Massachusetts approved the Earned Sick Leave Law (the “Law”) in November 2014.  Among other provisions, this law entitles employees to accrue and use up to 40 hours of earned sick time each calendar year.  The Law is scheduled to go into effect July 1, 2015.  The Attorney General announced this week a temporary “Safe Harbor” for employers that already provide to employees the right to use at least 30 hours of paid time off during calendar year 2015. 

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  • "Quickie" Election Rules Take Effect This Week

    Barring any last-minute court action, the National Labor Relations Board’s new election rules take effect this week. All election petitions filed on or after Tuesday, April 14, 2015, will be processed under these new rules.

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  • United States Supreme Court Decides Pregnancy Discrimination Act Case – Young v. UPS

    On March 25, 2015, the United States Supreme Court decided Young v. UPS. This case concerned the interpretation of the federal Pregnancy Discrimination Act (“PDA”). The Court’s 6-3 decision vacated and remanded a lower court’s grant of summary judgment in favor of the employer and interpreted the PDA to allow a plaintiff to demonstrate discriminatory intent by showing that an otherwise neutral light-duty policy places an unjustifiable “significant burden” on pregnant workers. This case is a reminder for all employers to carefully review their light duty/accommodation policies.

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  • IRS Issues Final Forms and Instructions for Fulfilling Employer Reporting Requirements under ACA

    The Affordable Care Act (“ACA”) includes a requirement that certain employers annually file with the Internal Revenue Service (“IRS”) information related to health care coverage offered to employees.  After releasing draft forms and instructions in July and August, 2014, the IRS has recently issued the final forms and instructions.  The final forms remained largely unchanged from the draft forms.

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  • U.S. Department of Labor Revises Family Medical Leave Act Rules to Recognize Same-Sex Spouses Regardless of State of Residence

    Effective March 27, 2015, the U.S. Department of Labor (DOL) regulations under the Family Medical Leave Act (FMLA) will protect an employee’s right to take FMLA leave to care for a legally-recognized same-sex spouse regardless of the state where the employee or the employer resides.  The FMLA generally allows covered employees to take twelve weeks per year of unpaid leave to care for illness or injury for themselves or certain family members, including spouses.  The new regulations effectively expand FMLA coverage to employees with same-sex spouses who live in states that do not recognize same-sex marriages.

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  • Action Required Now for the Affordable Care Act’s Transitional Reinsurance Program

    The filing deadline to submit annual enrollment counts for group health plans subject to the Transitional Reinsurance Program (“TRP”) is December 5, 2014 at 11:59 pm. The first TRP contribution payment is due January 15, 2015. The TRP is one of the taxes and fees established under the Affordable Care Act (“ACA”). Money raised through this fee is intended to stabilize premiums in the individual market for those with pre-existing conditions. The TRP contribution applies to benefit years 2014-2016, and the fee is $63 per covered life in 2014. The fee is expected to be less in 2015 and 2016, as the statute provides for less money to be raised in each subsequent year.

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  • Firearms Licensing Alert - August 2014

    Proposed in the wake of gun violence incidents nationwide, on July 31, 2014, the Massachusetts Legislature passed “An Act Relative to the Reduction of Gun Violence” (Act). The Act, which is now awaiting the Governor’s approval, will make significant changes to the authority of local licensing authorities over firearms licensing.

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  • NLRB Rules that Employees Have a Legal Right to Use an Employer's E-mail System for Union Communications

    A majority of the National Labor Relations Board (“Board”) recently overruled its own precedent and held that employees who are allowed to use an employer’s email system for work purposes must also be allowed to use that email system during their non-working time for communications that are protected by Section 7 of the National Labor Relations Act (“Act”). Purple Communications, Inc., 361 N.L.R.B. No. 126 (12/11/14). Only if an employer can show that there are “special circumstances” necessary to maintain production or discipline can an employer bar such access to its email system. Otherwise, if an employer cannot show such “special circumstances,” it can apply “uniform and consistently enforced” controls over an email system, but only to the extent that the employer is required to maintain production and discipline.

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  • Governor Patrick Signs Parental Leave Law

    On January 7, 2015, Governor Patrick signed “An Act Relative to Parental Leave” into law (the “Act”).  This Act replaces the Massachusetts Maternity Leave Act (“MMLA”), and extends parental leave rights to both men and women.  While similar to the MMLA in many respects, there are important differences of which employers need to be aware when updating policies and procedures in light of this new law.

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