Labor and Employment Alerts
Murphy, Hesse, Toomey & Lehane, LLP Back To In-Person For Their 2023 Annual Labor & Employment Law Update
On April 6, 2023, Murphy, Hesse, Toomey & Lehane, LLP hosted their Annual Labor & Employment Law Update, in collaboration with the South Shore Chamber of Commerce, Neponset River Regional Chamber of Commerce, Quincy Chamber of Commerce, and the Metro...
Murphy, Hesse, Toomey & Lehane, LLP Presents Labor and Employment Law Update in Collaboration with the Greater Merrimack Valley Human Resource Association
On April 6, 2023, Murphy, Hesse, Toomey & Lehane, LLP presented their Labor & Employment Law Update, sponsored by the Greater Merrimack Valley Human Resources Association. Several of the firm’s attorneys presented virtually on various legal topics....
THE VITAL IMPORTANCE OF IMMIGRATION TO THE UNITED STATES AND THE H-1B PROCESS FOR EMPLOYERS TO HIRE WORKERS FROM ABROAD
Migrants and workers from abroad have been a vital part of the success and growth of the United States since its inception. Indeed, many of our ancestors came from abroad and contributed to shaping our nation’s history. We recognize the many benefits that migration has brought to our country, the talent, knowledge and expertise that workers abroad have brought to our economy, and that the United States would not be the world leader it is today without its diverse workforce.
NLRB MARKS RETURN TO HEIGHTENED SCRUTINY OF EMPLOYEE SEVERANCE AGREEMENTS
On February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued a decision significantly limiting the use of general confidentiality and non-disparagement clauses in severance and similar agreements with employees. The Board, in McLaren Macomb, 372 N.L.R.B. No. 58, found that an employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) when it offered severance agreements to employees that contained broad non-disparagement and confidentiality provisions. In doing so, the NLRB overruled two 2020 decisions that had afforded employers greater leeway with the drafting, use, and offering of similar agreements.
NEW MASSACHUSETTS LAW PROHIBITS DISCRIMINATION ON THE BASIS OF NATURAL AND PROTECTIVE HAIRSTYLES
Governor Charlie Baker signed into law the “Create a Respectful and Open World for Natural Hair” (CROWN) Act. The law was signed on July 26, 2022, and will take effect on October 24, 2022.
Dobbs v. Jackson Women’s Health Organization: The Supreme Court Overrules Roe v. Wade and Planned Parenthood v. Casey
On June 24, 2022, the United States Supreme Court overruled the landmark constitutional case Roe v. Wade and the key subsequent decision Planned Parenthood v. Casey in a majority opinion authored by Justice Samuel Alito. The Court held that “[t]he Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
Massachusetts Supreme Judicial Court Clarifies Definition of “Regular Compensation” for Retirement Boards
In 2018, the Massachusetts Supreme Judicial Court (“SJC”), in a case commonly known as the Vernava decision, declared that vacation or sick pay used to supplement workers’ compensation payments did not constitute “regular compensation” as defined in M.G.L. c. 32, 1.
Based on the Vernava decision, PERAC issued a memorandum which interpreted the SJC’s Vernava decision as being limited to the calculation of regular compensation for those members who received accidental disability retirement benefits under M.G.L. c. 32, § 7. PERAC instructed all retirement boards to follow its interpretation of Vernava as outlined in the memorandum but not to apply the SJC’s analysis of regular compensation to ordinary disability or superannuation retirement applications.
OSHA Withdraws Vaccination and Testing Emergency Temporary Standard
OSHA has just announced that it is withdrawing this ETS effective immediately. Although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a “proposed” rule; instead OSHA has indicated that it will prioritize its resources to focus on a permanent COVID-19 Healthcare Standard. Notwithstanding the withdrawal of the ETS for large employers, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.
The Supreme Court Blocks OSHA Vaccination and Testing Requirements but Upholds HHS Vaccination Requirements
On January 13, 2022, the United States Supreme Court issued a “stay” that prevents OSHA’s Emergency Temporary Standard (“ETS”) from taking effect for the time being. On the same day, the Supreme Court also issued a “stay” that allows the Health and Human Services (“HHS”) mandatory COVID-19 vaccination rule for all Medicare and Medicaid funded facilities to go into effect. Given that both of these rulings involved applications for preliminary or emergency relief, neither of them represents the final word on the enforceability of the vaccine and/or testing mandates, and additional litigation is a certainty as the lower courts further evaluate the legality of the mandates.
OSHA ETS Vaccination and Testing Requirements Enforcement To Begin on January 10, 2022 and February 9, 2022
On December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted a stay on enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which was issued on November 4, 2021.
Supreme Judicial Court- Refusing to Grant a Lateral Transfer to a Preferred Position May Constitute an Adverse Employment Action
In a recent decision, Yee v. Massachusetts State Police, the Massachusetts Supreme Judicial Court held for the first time that denying an employee’s request for a lateral transfer can constitute an adverse employment action under the Massachusetts General Laws, Chapter 151B which prohibits discrimination in the workplace. The Court’s decision addresses the scope of employment actions on which an aggrieved employee may base a discrimination claim, going beyond commonly-challenged actions such as a refusal to hire, a promotional bypass, or discipline.
Supreme Judicial Court Issues Important Decision Protecting Employers – Back Pay Awards Do Not Constitute “Wages” Under the Wage Act and Thus Are Not Subject To Trebling
In a recent decision, the Massachusetts Supreme Judicial Court (“SJC” or “Court”) declined to classify a court-ordered “back pay” award as “wages” under the Massachusetts Wage Act (“Wage Act”). In response to a request for briefs from the Court, Murphy, Hesse, Toomey & Lehane, LLP (MHTL), on behalf of its public and private clients, submitted an amicus brief, supporting the defendant employer’s position. The Greater Boston Chamber of Commerce and the New England Legal Foundation also submitted amici briefs. This decision – a significant victory for employers – has far-reaching consequences and helps to protect employers from punitive and excessive penalties in many employment contexts. Had the case been decided for the plaintiffs, it could have had significant ramifications for employers, extending the punitive damage scheme under the Wage Act (strict liability, treble damages, attorneys’ fees, individual liability, etc.) to a myriad of different employment contexts.
Legislature Passes Sweeping Non-Compete Reform; Bill Awaits Governor’s Signature
On July 31, 2018, the Massachusetts Legislature passed long-debated legislation aimed at reforming the law surrounding non-competition agreements. Non-competition agreements are commonly used to restrict competition following the ending of the employment relationship. If signed by the Governor in its present form, the law would go into effect October 1, 2018 and significantly alter the landscape related to non-compete agreements for employers and employees in Massachusetts.
Governor Baker Signs “Grand Bargain” Bill
On June 28, 2018, Governor Baker signed the “Grand Bargain” bill advanced by the Legislature to address issues relating to minimum wage, Sunday overtime pay, an annual Sales Tax Holiday, and, perhaps most important, establishing paid family and medical leave in Massachusetts. Below is a brief summary of this new legislation. This law will go into effect in stages and has a number of aspects that will be clarified through regulations and guidance from the state agencies tasked with interpreting and enforcing these new laws. Overall, this bill was touted as a “compromise” between business and labor groups in order to keep corresponding ballot questions off the November 2018 ballot.
U.S. Supreme Court Rules Compulsory Agency Fees Unconstitutional
On June 27, 2018, the United States Supreme Court decided the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. In a landmark 5-4 ruling, the Court, in a decision authored by Justice Alito, held that public employers may no longer deduct an “agency fee” or any other payment to a union from a nonmember’s wages without the employee’s affirmative consent. Justice Elena Kagan penned the dissent, accusing the majority of inappropriately weaponizing the First Amendment.
Massachusetts Pay Equity Act Becomes Effective July 1, 2018
Signed by Governor Baker on August 1, 2016, the MAssachusetts Pay Equity Act (“MEPA”) is scheduled to become effective on MAssachusets employers on July 1, 2018. This new law amends Chapter 149, s. 105A of the Genearl Laws, which already prohibits discimination in the payment of wages on the basis of sex for “like or comparable” work.” Although federal and state law already prohibits disciminatory pay practices on the basis of sex/gender, MEPA clarifies certain definitions and includes additional restrictions and protections. MEPA applies to nearly all employers in MAssachusetts, including private employers (regardless of size), and state and municpal employers (MEPA does not apply to the federal government).
DOJ Announces Initiative to Fight Workplace Sexual Harassment
On February 28, 2018, the Justice Department’s Civil Rights Division announced an initiative to eradicate sexual harassment in the public sector workplace: the Sexual Harassment in the Workplace Initiative (SHWI). The U.S. DOJ enforces Title VII of the Civil Rights Act of 1964 against state and local government employers. Title VII prohibits discrimination on the basis of race, color, national origin, sex, and religion; sexual harassment is a form of sex discrimination.
Vacation and Sick Pay Used to Supplement Workers Comp Benefits Is Not Regular Compensation
On February 13, 2018, the Massachusetts Supreme Judicial Court rejected PERAC’s contention that sick or vacation payments, when used to supplement workers’ compensation payments, are “regular compensation” as defined in M.G.L. c. 32, § 1.
Hazy Guidance for Employers: Attorney General Sessions Issues Marijuana Enforcement Memorandum to Federal Prosecutors
On January 4, 2018, Attorney General Jefferson Sessions issued a memorandum rescinding several Obama-era policies that discouraged federal prosecutors from pursuing marijuana possession and distribution cases in marijuana legalization states like Massachusetts. The Obama-era policies were backed by a Congressional budget rider that bars the Department of Justice from spending its money prosecuting state backed medical marijuana operations. The amendment will expire later this month, and it is unclear whether Congress will renew it given the Trump administration’s current priorities.
National Labor Relations Board Overturns Key Prior Rulings on Employee Handbooks and Joint Employer Liability
The National Labor Relations Board (“NLRB” or “Board”) has been active recently, reaching decisions on two important issues: employee handbooks and joint-employer liability. These decisions directly affect most private employers, and the impact of these decisions will be felt across multiple areas of law, and in both the public and private sectors.
National Labor Relations Board Overturns Important Decisions Related to Bargaining and Union Organization
The National Labor Relations Board (“NLRB” or “Board”) has overturned two important decisions from the prior administration affecting bargaining obligations and bargaining unit composition under the National Labor Relations Act (“NLRA”). These decisions, issued on the eve of the Board Chairman’s term expiring, are significant for employers with a unionized work force or in the context of union organizing campaigns.
Program On Deferred Action for Childhood Arrivals (“DACA”) Rescinded
On September 5, 2017, the Department of Homeland Security issued a memorandum announcing the rescission of the June 15, 2012 Memorandum entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, which had established the program known as Deferred Action for Childhood Arrivals, commonly referred to as “DACA.” This may have a significant impact on employers who rely on individuals in their workforce with lawful immigration status through DACA.
Massachusetts Enacts the Pregnant Workers Fairness Act
Last month, we alerted you to the legislature’s passage of the Pregnant Workers Fairness Act (“PWFA”). On July 27, 2017, Governor Charlie Baker signed the PWFA into law. It takes effect April 1, 2018.
Massachusetts Supreme Judicial Court Issues Landmark Ruling on Medical Marijuana in the Workplace
In a much anticipated ruling,the Massachusetts Supreme Judicial Court (“SJC”) issued a decision recognizing a potential claim for disability discrimination if an employer terminates or otherwise takes an adverse employment action against an employee who uses lawfully prescribed medicinal marijuana while off-duty. In short, this decision prohibits blanket restrictions on the off-duty use of marijuana and requires employers to engage in an interactive process to determine whether the off-duty use of lawfully prescribed medical marijuana may be a reasonable accommodation under Massachusetts anti-discrimination law, M.G.L. c. 151B.
Massachusetts Legislature Unanimously Passes The Pregnant Workers Fairness Act
On June 29, 2017, the Senate unanimously voted to pass the Massachusetts Pregnant Workers Fairness Act (S.2093). This bill will be sent to Governor Charlie Baker to be signed after being reconciled with the House version of the bill (H.3680) that passed in May 2017.
A Synopsis: Evolving Changes in Immigration Law and Its Impact on Your Employees/Students
The federal government has released a number of Executive Orders (“Orders”) that are directly affecting immigration policies, procedures and practice in the United States. Some of these Orders may have a direct impact on employers, especially employers who employ foreign nationals and conduct business abroad that requires foreign travel. Here is a brief synopsis on the state of these Orders as of now.
The Smoky Impact from Massachusetts Voting to Regulate “Recreational” Marijuana
At the 2016 state election, Massachusetts voters approved Question 4, which regulates marijuana for recreational (i.e., non-medical) purposes. A consequence of Question 4 is that the production, possession, sale and consumption of marijuana – in certain amounts and under certain circumstances, for persons aged 21 years and over – will become legal under Massachusetts law.
Federal Judges Issues Preliminary Injunction Blocking the Implementation of New FLSA Overtime Regulations
Late yesterday, a federal judge issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new Fair Labor Standards Act (FLSA) overtime regulations from going into effect on December 1, 2016. What this means for employers in the short term is that the new overtime regulations – which, among other things, more than doubled the salary threshold for exempt employees to $913 per week – are on hold for now, pending final resolution from the court.
Words Matter-Client Alert
By November 8, millions of Americans will have voted. As a law firm practicing in the public and private sector for more than three decades, we do not endorse candidates. However, given that much of our practice is in labor and employment and education, we feel that it is our responsibility to advise our clients about the legal consequences of some of the speech that is being used in this election.
Governor Baker Signs Pay Equity Legislation
On August 1, 2016, Governor Baker signed Senate Bill 2119, “An Act to Establish Pay Equity into law (the “Act”). This Act amends Chapter 149, s. 105A of the General Laws, which currently prohibits discrimination in payment of wages on the basis of sex for “comparable” work.” Although federal and state law already proscribes discriminatory pay practices on the basis of sex/gender, the Act clarifies certain definitions and includes additional restrictions and protections. The Act goes into effect July 1, 2018.
Final Rule Changing Overtime Regulations Published By DOL
Today, the U.S. Department of Labor (DOL) released its final regulations making changes to the overtime exemptions under the Fair Labor Standards Act (FLSA). We have been watching these regulations for many months now, wondering when they will be released and if the final regulations would respond to the opposition and opinions of the many who see these regulations, and particularly the new salary threshold, as too steep and a hardship.
Affordable Care Act’s Cadillac Tax on High Cost Health Plans Delayed Two Years
On December 18, 2015, Congress passed and President Obama signed a federal budget bill for 2016, including $1.1 trillion in spending and $622 billion in taxes. Also attached to the budget bill were several changes to the Affordable Care Act (“ACA”), most notably a two-year delay in implementation of the so-called “Cadillac Tax.” The ACA changes took effect immediately upon the bill’s signing.
National Labor Relations Board Expands Definition of Joint Employer under the National Labor Relations Act
In a decision issued August 27, 2015, the National Labor Relations Board (the “Board”) expanded the definition of “joint employer” under the National Labor Relations Act (the “Act”), broadening the number of parties potentially subject to bargaining and fair labor practice obligations in relation to employees they may not directly employ. In this case, Browning-Ferris Industries of California (the “BFI”), the Board found that the owner and operator of a recycling facility (the “user” employer) was a joint employer with a firm that supplied employees to the facility (the “supplier” employer), despite the fact that only the supplier firm provided compensation to and direct supervision of those employees. This case has potentially broad implications for both user and supplier employers.
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).
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
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”).
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.
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.
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.
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.
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.
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.
NLRB General Counsel Issues Guidance on Employee Handbook Rules
Over the years, many employers, both union and non-union, have been charged with violating the National Labor Relations Act (“Act”) when the National Labor Relations Board (“NLRB”) determines that an employer’s handbook rules prohibit or restrict activities protected by the Act. Noting that the Act “does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act,” the NLRB General Counsel has issued a memorandum to assist employers with drafting lawful policies. This memo provides examples of both lawful and unlawful policies. This memo also focuses on policies that have historically been problematic for employers often resulting in unfair labor practice charges.
“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.
Massachusetts Supreme Judicial Court Issues Decision Regarding No-Tipping Policies
On April 10, 2015, Massachusetts’ highest court issued an important ruling for service industry employers, clarifying employer obligations with regard to “no-tips” policies under Massachusetts law. The Court held: (1) “no-tips” policies are permissible, (2) employers are allowed to keep any money left as a tip when a no-tips policy is clearly communicated to customers, and (3) employers are not allowed to keep any money left as a tip when the policy is not clearly communicated to customers.
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.
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.
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.
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.
NLRB Reissues Election Rule aimed at Quicker Elections-December 2014
Over the last three years we have kept you informed of the progress of the National Labor Relations Board’s (“Board”) efforts to accelerate its election processes. If you recall, in 2011 the Board published its final rule, which then was rejected by a federal district court because the Board lacked the quorum necessary to adopt such a rule. In December, 2013, the Board voluntarily dismissed its appeal of that court decision, thus clearing its decks for another try. Then on February 5, 2014, the Board published a Notice Of Proposed Rulemaking (“NPRM”) in the Federal Register. That proposed Rule was virtually identical to the one originally proposed in 2011.
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.
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.
Mandatory Employment Benefits Expand
On November 4, 2014, Massachusetts voters approved a ballot initiative providing for earned sick time for employees (the “Law”). The Law takes effect on July 1, 2015, and will require certain employers to provide up to 40 hours of earned sick time per year to their employees for a wide variety of covered reasons.
Governor Patrick Signs Domestic Violence Law
On August 8, 2014, Governor Patrick signed “An Act Relative to Domestic Violence” (S.2334) into law (the “Act”). Among other changes to the state’s domestic violence laws, the Act requires employers with fifty (50) or more employees to provide domestic violence leave in certain situations.
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.
Supreme Court Invalidates National Labor Relations Board Appointments Supposedly Made During Senate Recesses
In a case called Noel Canning, the U.S. Supreme Court ruled unanimously yesterday that three recess appointments President Barack Obama made to the National Labor Relations Board (“Board”) in January 2012 – Terence Flynn, Richard Griffin and Sharon Block – were unconstitutional, an opinion that effectively invalidates hundreds of decisions issued between January, 2012 and August, 2013, when those appointees were on the Board.
Pay or Play Delayed Again
The Affordable Care Act (“ACA”) contained an employer mandate, known as the employer responsibility provisions or “pay or play,” which was originally scheduled to be effective as of January 1, 2014. Last summer, the Obama Administration announced a delay in that mandate until January 1, 2015. On the heels of last summer’s delay, the Administration has decided to further delay the provision’s effective date until January 1, 2016, for employers with between 50 and 99 full-time equivalent employees.
National Labor Relations Board Throws in Towel on Posting Rule
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
Department of Labor Releases Model Notices on Health Insurance Marketplaces
On May 8, 2013, The Department of Labor (“DOL”) released a model notice and guidance with regard to the requirement under the Affordable Care Act (“ACA”) that employers provide notices to employees about the state health care exchanges, also called Health Insurance Marketplaces (“Marketplaces”).
Appeals Court Holds Board’s Notice Rule Inconsistent with Employer Free Speech
The saga of the National Labor Relations Board’s (“Board”) Notice posting rule continues. If you recall from our prior Alerts, in 2011 the Board issued a Rule mandating the posting of an 11” x 17” Notice in virtually every private sector workplace in the country – union or not – informing employees of their rights under the National Labor Relations Act (“Act”).
Final HIPAA Regulations Require Action by Covered Entities and Business Associates
On January 25, 2013, the Department of Health and Human Services (“HHS”) published final regulations making important changes to requirements under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
Governor Patrick Signs Law Mandating Fingerprint-Based Background Check
On January 10, 2013, Governor Patrick signed “An Act Relative to Background Checks” (H.4307) into law. This law implements a wide reaching requirement for mandatory state and national fingerprint-based criminal background checks for public and private elementary and secondary educational institutions, Department of Early Education and Care licensed and/or funded child care facilities/programs, and applicants to be adoptive or foster parents.
Federal Government Releases Additional Proposed Regulations Under the Affordable Care Act
With the 2012 election behind it and Speaker of the House stating that the Patient Protection and Affordable Care Act (“PPACA”) is the “law of the land,” the Obama Administration has pushed forward with health care reform by releasing new proposed regulations on November 20, 2012.
Governor Patrick Signs New Health Care Law
On August 6, 2012, Governor Patrick signed into law “An Act improving the quality of health care and reducing costs through increased transparency, efficiency and innovation” as Chapter 224 of the Acts of 2012.
New Massachusetts Health Care Reform Legislation Has Some Surprises for Hospital Employers
On August 6, 2012, Governor Patrick signed into law “An Act improving the quality of health care and reducing costs through increased transparency, efficiency and innovation” as Chapter 224 of the Acts of 2012.
Patient Protection and Affordable Care Act Requirements Remain In Place Following United States Supreme Court Decision
Following the landmark decision of the United States Supreme Court upholding the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), commonly known as the Federal Health Care Reform Act or Obamacare, the federal government will move forward with putting into effect the PPACA’s provisions.
US Supreme Court Upholds Affordable Care Act in Landmark Decision
In a landmark ruling, the U.S. Supreme Court has upheld the “individual mandate” and the entire Affordable Care Act as a proper exercise of the Constitution’s power to tax.
REMINDER: Additional Changes Pursuant to 2012 CORI Reform Law Take Effect on May 4, 2012
Employers are reminded that the remaining provisions of the 2010 Massachusetts Criminal Offender Record Information (CORI) Reform Law become effective on May 4, 2012.
NLRB Rule on Speedy Elections Struck Down By Federal District Court-May 14, 2012
In December, 2011, the National Labor Relations Board published a Rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining.
New Affordable Care Law Requires Employers to Provide ‘Reasonable’ Breaks to Nursing Mothers
Effective immeditely on the passage of the Affordable Health Care Act, employers covered by the Fair Labor Standards Act (FLSA) are required to furnish “reasonable” breaks to nursing mothers to express milk for their infants.
NLRB Suspends Implementation of Speedy Election Rule
In response to the decision of a federal district court judge in the District of Columbia to strike down the NLRB’s Rule on speedy elections for lack of a quorum, the NLRB has temporarily suspended the implementation of that Rule.
Board Posting Rule Enjoined by Federal Appeals Court This Morning
As a follow-up to our Client Alert of this morning, earlier today the Federal D.C. Court of Appeals granted the U.S. Chamber of Commerce’s motion to enjoin the National Labor Relations Board from implementing its posting rule pending its decision.
Federal District Court Judge in South Carolina Rules That the NLRB Exceeded Its Regulatory Authority In Requiring a Workplace Posting of Employee’s Union Rights
The saga of the National Labor Relations Board’s Posting Rule continues. Friday afternoon Judge David C. Norton of the Federal District Court for the District of South Carolina, in a case brought by the South Carolina Chamber of Commerce and the U.S. Chamber of Commerce, ruled that the Board exceeded its regulatory authority in requiring a workplace posting of employees’ union rights.
NLRB Announces Postponement of Board Posting Rule After Appeals Court Injunction
The saga of the National Labor Relations Board’s Posting Rule continues. On Friday, April 13, Judge David C. Norton of the Federal District Court for the District of South Carolina, in a case brought by the South Carolina Chamber of Commerce and the U.S. Chamber of Commerce, ruled that the Board exceeded its regulatory authority in requiring a workplace posting of employees’ union rights.
NLRB Posting Regulation – Posting Rule Remains – Enforcement Provisions Invalidated
On March 2, 2012, the U.S. District Court for the District of Columbia partially invalidated the National Labor Relations Board’s (NLRB) recently-promulgated posting regulation.
Overview of Selected and Notable Developments in Labor & Employment Law 2011-2012
South Shore Chamber of Commerce March 1, 2012
Guidance and Final Regulations Released on Health Care Reform
The federal health care reform law, known as the Patient Protection and Affordable Care Act (“PPACA”), created several new requirements for employers who offer health care coverage to employees.
National Labor Relations Board’s New Posting Rule Implementation Date Changed to April 30, 2012
On August 30, 2011, the National Labor Relations Board (“Board”) issued its new posting rule, which requires a posting in most private sector workplaces advising employees of their rights under the National Labor Relations Act (“Act”).
National Labor Relations Board Issues Final Election Rule Aimed At Quicker Elections
Today the National Labor Relations Board (“Board”) published its final Election Rule in the Federal Register. The Final Rule is aimed at significantly reducing the time between the filing of an election petition and the election itself.
Department of Labor Extends Time for Compliance With Health Care Reform’s Summary of Benefits and Coverage
The federal health care reform bill known as the Patient Protection and Affordable Care Act requires group health plans to provide participants with a Summary of Benefits and Coverage (“SBC”). The SBC can be no longer than 4 pages (front and back) or less. The Department of Labor (“DOL”) has released proposed regulations and a template for the SBC and has now received comments on the regulations and template.
Governor Patrick Signs 2011 Public Pension Reform Law
In January, Governor Deval Patrick announced the filing of legislation to further reform the Massachusetts public pension system in an effort to cut costs and ensure the financial viability of the State’s public pension system in the future.
In the News Again: Worker Misclassification Enhanced Enforcement Efforts and Broader Damages Ahead
The last few months have seen stepped up regulatory activity on the worker misclassification front as well as initiatives to enforcement proper payment of wages and other benefits.
New Employee Rights Notices Must Be Posted In Almost All Private Sector Workplaces By November 14
This Tuesday, August 30, 2011, the National Labor Relations Board will publish a Final Rule mandating the posting of an 11” x 17” Notice in virtually every private sector workplace in the country – unionized or not – informing employees in considerable detail of their rights under the National Labor Relations Act.
Overview of Notable Developments in Labor & Employment Law 2010-2011 – Case Law Update
Presented by Katherine A. Hesse
Early Retiree Reinsurance Program Offers Potential Savings for Health Care Plans
As part of the landmark federal health care reform legislation passed in March, 2010, Congress included an Early Retiree Reinsurance Program that will reimburse sponsors of group health care plans for a portion of the cost of paying claims for covered early retirees. If a health plan covers retirees too young to qualify for Medicare (ages 55-64), then the plan may be able to apply for this reimbursement from the federal government
Get Ready for the Audits: Worker Misclassification High DOL-IRS Priority
Do you work with a significant number of independent contractors? Or at least, do you think or hope they are independent contractors? You’d better find out for sure!
The Price of Experience: Is It Okay to Use Unpaid Interns?
Obama Signs Patient Protection and Affordable Care Act
On March 21, 2010, the United States House of Representatives passed a comprehensive health care reform package known as the Patient Protection and Affordable Care Act (the “Act”). The Act had previously been passed by the United States Senate in December 2009. President Obama signed the Act into law on March 23, 2010. The House also passed a bill making changes to the Act that will now go before the Senate.
COBRA Subsidy Extended
On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010. This legislation extends the period for the COBRA premium subsidy until March 31, 2010.
Congress Extends and Changes COBRA Subsidy Program
On December 19, 2009, President Obama signed into law the 2009 Department of Defense Appropriations Act (“DDAA”). As part of the DDAA, Congress made changes to the COBRA subsidy program instituted by the American Recovery and Reinvestment Act of 2009 (“ARRA”). The changes are effective immediately, and require immediate attention by employers.
Stimulus Bill and HHS Regulations Make Sweeping Changes to HIPAA Breach Rules
The American Recovery and Reinvestment Act of 2009 (“ARRA”), also known as the Stimulus Bill made important changes to the Health Insurance Portability and Accountability Act (“HIPAA”) that affect both covered entities and business associates. On August 24, 2009, the Department of Health and Human Services (“HHS”) released final regulations addressing ARRA changes to breach notification requirements.
Swine Flu (H1N1) and the Workplace
Given the recently confirmed cases of Swine Flu (H1N1) in the United States, including Massachusetts and other New England states, questions have been raised as to how employers should handle the threat of an outbreak and exposed or infected employees. This memorandum provides guidance for employers on some of the important legal issues regarding the threat and on some questions employers are asking.
Overview of Developments In Employment Law 2008-2009
Laws governing the workplace generally apply only to employees, not independent contractors. For example, the following laws generally do not apply to independent contractors:
Employee Free Choice Act (EFCA) Reintroduced in Both Houses of Congress
Today the “Employee Free Choice Act” (“EFCA”) was reintroduced in both houses of Congress. Last year it passed the House, but died in the Senate. With a new administration and Congress, passage of the legislation – in at least some form – seems inevitable.
Stimulus Bill Makes Important Changes to COBRA
Stimulus Bill Makes Changes to COBRA
On February 17, President Obama signed into law The American Recovery and Reinvestment Act of 2009.
Obama Signs Lilly Ledbetter Fair Pay Act
President Barack Obama recently approved legislation that will increase the difficulty for employers fighting pay discrimination suits. The new law expands the possibility for employees to challenge pay discrimination based on race, gender, age or disability.
Family and Medical Leave Act ( “ FMLA ” )
In November 2008 the U.S. Department of Labor (“DOL”) issued revised regulations interpreting the FMLA of 1993, as amended.
Obama Victory Prioritizes Labor and Employment Law Issues
President-Elect Barack Obama’s Presidential election victory this week will likely result in fundamental changes in the relationship between employer and employee in the labor, employment, immigration, and employee benefits contexts. In addition, the struggling economy, with its attendant layoffs, wage freezes and benefits cutbacks, will also create legal issues for employers.
New Law Dramatically Expands Scope of the Americans With Disabilities Act
On September 17, 2008, the House approved the ADA Amendments Act, which had previously been passed by the Senate on September 11, 2008. It is fully expected that the President will sign the bill into law.
Equal Employment Opportunity Commission Issues Guidance On The Relationship Between the ADA And Employer Performance And Conduct Standards
On September 3, 2008, the EEOC issued a comprehensive question and answer guide discussing the interface between the Americans with Disabilities Act (ADA) and workplace performance and conduct issues. The guide is a useful tool for employers, helping them navigate tricky situations involving disabled employees whose performance or conduct are affecting the employer’s operations.
Recent Legal Decisions in Employee Benefits, Labor and Employment Law
Employment Strategies in a Recessionary Economy
Things to Consider
Murphy, Hesse, Toomey & Lehane, LLP Receives Favorable Decision for Town of Dracut
On April 11, 2023, MHTL Attorneys Peter Mello and Madison Harris-Parks represented the Town of Dracut, and successfully obtained a preliminary injunction order requiring, among other things, that the Defendant homeowners cease renting out their pool to the public. The case, Town of Dracut by and Through Its Building Inspector vs. Nason, Gilbert et al., was initiated by the Town after the Defendants failed to comply with the Town’s associated underlying zoning enforcement order. The Town requested the injunction Read More
EXTENSION OF MUNICIPAL RELIEF MEASURES - INCLUDING OPEN MEETING LAW REMOTE OPTION - SIGNED BY THE GOVERNOR
The option for public bodies in the Commonwealth of Massachusetts to hold public meetings remotely or in a hybrid fashion, which came into play at the onset of the COVID-19 pandemic, has been extended by the General Court for another two years, until March 31, 2025. The Governor signed the legislation, which will be codified at Chapter 2 of the Acts of 2023, on March 29, 2023. Because of the inclusion of an emergency preamble, the law goes into effect immediately.
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