Year End Federal Employment Law Changes: 2017 Summary

Stressed? We can help. Below is a Federal Year End Update that will walk you through important changes in Federal law and enforcement practices. Join us on December 14, 2017 at 12:00 pm EST for a virtual lunch time (or breakfast depending on your time zone) roundup of changes in Federal and State laws that took place in 2017. It will be quick but informative. From 12:00-12:30 pm, we will cover changes at the Federal level, from 12:30-1:00 pm we will cover notable changes on the East Coast, and from 1:00 pm-1:30 pm we will cover the West Coast. To RSVP, please send an email to nicole@foleylawpractice.com. 2017 YEAR END ROUNDUP: FEDERAL EDITION What a long, strange trip it’s been. The Affordable Care Act (ACA) did not go away but the overtime rule did-for now (see below). The constant tweets and the initial flurry of Executive Orders gave way to little action by Congress. Yet, there are many changes that will impact employers in 2018. Federal agencies and the courts hammered away on workplace issues. Additionally, sex-based and sexual harassment is being litigated and receiving unprecedented attention, putting unprepared employers at tremendous risk. And states are legislating where Congress has not (more on that soon). Let’s take a quick tour of what is in store for 2018: Sexual Harassment, Time to Take Action You can call it the Harvey Weinstein effect, but sexual harassment is not just a Hollywood problem. It exists in all industries and has for years. However, it is now getting some serious press, which means sexual harassment is on employees’ minds, and all employers are at an increased risk of a sexual harassment claim. Before now, the standard sexual harassment compliance advice has been to implement a sexual harassment policy, and invest in sexual harassment training. Yet, many of the workplaces publicly rocked by recent claims-including the Weinstein Company-are headquartered in California, where the law mandates that employers have strict policies and training in place. What can be done? First, it is time for all employers to revisit and revise their existing policies and practices. The U.S. Equal Employment Opportunity Commission (EEOC) has released a new document identifying five core principles for addressing and preventing sexual harassment in the workplace. According to the EEOC, the principles are “promising practices,” rather than official guidance or legal requirements; but they are a great place for all employers to start. They include: Committed and engaged leadership; Consistent accountability; Strong harassment policies; Trusted, accessible complaint procedures; and Regular, interactive and tailored training. Next Steps: Update Harassment Policies. Our firm is available to help draft a policy that includes an open door element, multiple avenues for complaints, and a process that will allow employees to file complaints with your organization-rather than going to an attorney or the MCAD or EEOC. Utilize Targeted Training. Our firm offers a unique form of sexual harassment training targeted to your organization’s culture and needs. Create a Communication Strategy. Messages from leadership will set the tone for the entire organization. Join Us for a Sexual Harassment Webinar. Many employers are feeling overwhelmed and concerned about their exposure regarding sexual harassment. Join our attorneys from the comfort of your desk for a webinar on January 17, 2017, at 12:00p.m. We will provide an overview of the state of the laws as well as strategies for addressing harassment in the workplace. To RSVP, please send an email to nicole@foleylawpractice.com. I-9 Audits and ICE Investigations Although USCIS does not require employers to submit Form I-9 audits, the U.S. Immigration and Customs Enforcement (ICE) does audit I-9’s, and the agency just recorded its largest I-9 settlement ever, to the tune of $95 million. When viewed alongside recent Executive Orders changing ICE’s immigration priorities and promoting Buy American, Hire American policies, there seems to be a clear pattern of change in enforcement strategies emerging. Recently, the acting Director of ICE announced that he has instructed the investigative unit of ICE, to increase worksite enforcement audits and inspections by four to five times. ICE has already increased the number of inspections in worksite operations, and these inspections will significantly increase this next fiscal year. In addition, ICE is changing its approach to more aggressively go after employers that hire illegal workers. 1095-B or 1095-C Flags At the same time, we have noted a marked increase in the number of employer questions related to employees who either present a new social security number or whose 1095’s are rejected by the IRS. The 1095 requirements arose out of the reporting required by the Affordable Care Act. The system verifies whether the name and social security number on the 1095C actually match Social Security Administration records. If they do not match, the system is returning an error message. There are a number of reasons the name and social security numbers on a 1095C might not match, including typos, marriage, divorce, or a “borrowed” social. Unfortunately, even when the employer is able to fix the 1095C errors, I-9’s and W-2’s will need to be updated as well. The I-9 rules do not require employers to terminate employees for submitting false identity documents, and later requesting to change them. However, they do require employers to complete a new I-9 and attach it to the old I-9 form making note of the reason for the change. But, Please Don’t Forget About Discrimination Laws The current administration’s push for “Hire American” cannot be interpreted as “hire only Americans” or even “hire Americans first” without exposing your company to legal liability. First, workplace laws limit what employers can ask in the application and interview process, particularly when it comes to immigration status. Furthermore, once a new hire comes on board, an employer cannot require proof of U.S. citizenship when filling out the Form I-9. The law is clear that employers must accept valid documents and cannot insist on additional documentation because of a suspicion that an applicant is not a U.S. citizen. Federal law also prohibits employers from conducting E-Verify or requesting a form I-9 before the employee has accepted an employment offer, and employment applications must state that. Next Steps: The tension between discrimination laws and the actions of the current administration are creating risk for employers. However, there are steps employers can take to mitigate these risks: Review and update applications. Ensure they do not ask unlawful questions related to citizenship. Our firm is available to review and update or draft applications for a flat fee. Training. Any employee who will be conducting interviews or collecting I-9 forms and all HR employees must understand the potential pitfalls outlined above. Forward facing employees should be prepared for ICE inspections.They should know who to contact, and how to reach them immediately. They should know what to say and what not to say. There are specific regulations regarding I-9 production, and California has its own I-9 steps vis a vis ICE. Perform an I-9 audit. If you self-audit, the first step is to ensure that you are using the newest Form I-9. The form was updated twice this year, and a third update may be on the way. We can also assist. We Can Help. Our firm offers training on discrimination as well as I-9 compliance. We draft action plans for I-9 audits and/or ICE inspections, and we have also developed a flat fee I-9 audit intended to help our clients address this thorny issue. It Is Not Dead Yet: New Overtime Rule Rears its Head Although the current administration has remained publicly silent on the so called white collar overtime rule, the Department of Labor (DOL) has taken a series of steps that indicate new overtime rules may be coming. First, the DOL issued a news release in July announcing that the DOL would publish a Request for Information (RFI) for the overtime rule. Then this fall the DOL appealed the initial injunction stopping the overtime rule in order to affirm its authority to set a salary threshold for the white collar exemptions. At that time Secretary of Labor Acosta stated: “The particular question on the table is how should the overtime rule be updated…it hasn’t been updated since 2004, and it really is in need of updating.” While the timing of the proposed overtime rule remains up in the air, it is clear that employers should be ready to take another look at their overtime classifications. Next Steps For clients we worked with already, you updated your job descriptions, reviewed your exempt and non-exempt classifications, focusing on the employees’ duties in addition to the minimum salary level, and you are now in good shape. Up to date and accurate job descriptions are vital in the defense against various claims and to proper classification of employees. Employers who hedged and thought they would wait-now it is your turn.Our office performed a number of Position Classification Audits in 2017, and our clients found them to be an extremely effective risk management tool, even without the new overtime rules. Most employee misclassification occurs because the employee is incorrectly classified as exempt in the first place, not because of the salary. We continue to offer this audit under a flat fee arrangement. Affordable Care Act (ACA) While the ACA was not been repealed there have been many changes over time. Here are some areas for employers to review in preparation of 2018: For plan years beginning in 2018, employer-sponsored coverage will be considered affordable if the employee’s required contribution for self-only coverage for the least-expensive plan option the employer offers does not exceed 9.56 percent of the employee’s household income for the year (down from 9.69 percent in 2017). The ACA has created a safe harbor for employers to use in lieu of actually knowing an employee’s household income: The employee’s wages, as reported in Box 1 of the W-2, generally as of the first day of the plan year. The employee’s rate of pay, which is determined by the employee’s hourly wage rate multiplied by 130 hours (the monthly equivalent of at least 30 hours per week) as of the first day of the plan year. The individual Federal Poverty Level (FPL). The FPL isn’t officially published until January, until then, employers can use the FPL in effect six months prior to the start of the plan year. For 2018, the maximum monthly premium contribution that meets the FPL safe harbor will be 9.56 percent of the prior year’s federal poverty level ($12,060 in most states for 2017) divided by 12, or $96.08. Out-of-Pocket Maximums: An annual limit on cost-sharing, known as an out-of-pocket (OOP) maximum is set by the department of Health and Human Services (HHS) and applies to all non-grandfathered plans. The ACA’s self-only annual limit on OOP costs applies to each covered individual, regardless of whether the individual is enrolled in self-only coverage or family coverage. In 2017, the OOP maximum is $7,150 for an individual and $14,300 for a family plan. For 2018, the OOP maximum will be $7,350 for self-only coverage and $14,700 for family coverage. The IRS annually sets a separate, lower OOP maximum for high-deductible health plans (HDHPs) that can be linked with health savings accounts (HSAs), known as HSA-qualified HDHPs. For these plans, the OOP maximum for 2017 is $6,550 for an individual and $13,100 for family coverage. For 2018, the OOP maximum will be $6,650 for self-only coverage and $13,300 for family coverage. Next Steps The 2018 affordability rate is lower than the 2017 affordability rate, meaning applicable large employers may need to reduce their employees’ share of premium contributions in order to maintain affordable coverage as required by the ACA. We recommend developing a compliance strategy now to avoid ACA assessments under 4980H. Because applicable large employers (50 or more full-time equivalent employees during the previous calendar year) are assessed a penalty of $3,000 per year for each full-time employee who receives a premium tax credit through the ACA exchange, it is important to ensure that plans meet the affordability requirement. The IRS has published a Q&A located here: https://www.irs.gov/affordable-care-act/individuals-and-families/questions-and-answers-on-the-individual-shared-responsibility-provision As a reminder, large employers-those with 50 or more full-time employees in the previous year-must use IRS Forms to report healthcare coverage offered to full-time employees in the previous calendar year. This year’s deadlines for filing are as follows: Forms 1095-B and 1095-C: January 31, 2018 Forms 1094-B and 1094-C with copies of1095-B and 1095-C (paper submission): February 28, 2018 Forms 1094-B and 1094-C with copies of1095-B and 1095-C (electronic submission): March 31, 2018 Tip: Employers can receive an automatic 30-day extension by filing Form 8809 with the IRS. WE CAN HELP, REACH OUT TO US AT QUESTIONS@FOLEYLAWPRACTICE.COM OR (508) 548-4888. © 2017 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

 

Foley & Foley, PC, 495 Palmer Avenue, Falmouth, MA 02540

 

The Kids Are Alright

Millennials love information. Information means transparency. And that means pay equity cannot hide. A case in point: The EEOC prevailed where two high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as “pizza artists” in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed–the male– was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed. Not the best practice, maybe the worst.

The Kansas federal court ordered that compensatory, liquidated and punitive damages be paid by the store’s holding company (the store had closed). A very expensive lesson learned:

• Rectify don’t retaliate when mistakes are discovered;
• REVIEW PAY PRACTICES–we can help.  We have a comprehensive pay equity service that has already helped many clients;
• Workers, particularly millennials, will talk about pay and will publish information found online.  Keep ahead of trouble with fair pay policies.

We can help.  Check out our Pay Equity Service http://www.foleyworkplacelaw.com/pay-equity-audit-service.htm

What the devil is Massachusetts doing to employer health care contributions?

Last week, Governor Baker signed the awkwardly named, “An act further regulating employer contributions to health care,” which has raised many excellent questions. Once again we think about Bismarck’s quote: laws are like sausages, it is better not to see them being made. Except when laws are passed without regulation or key details, you have to dive into the sausage factory… . Where did this bill come from? Short answer: Governor Baker wanted spending cuts to MassHeath along with an increase in the employer contribution. The House and Senate decided to just implement the increased employer contribution without reforms or regulations. The Governor signed that bill. Surprise! On July 19, Governor Baker issued recommendations for amendments to the State’s Fiscal 2018 budget. A short attachment suggested an increase in the employer medical assistance contribution (EMAC) and introduced the 5% employer fine. Governor Baker indicated that these two changes “must not be considered in isolation of other measures needed to manage spending in the MassHealth program. Absent other reforms, this proposal imposes an unfair burden on Massachusetts’ employers without making the structural reforms essential to MassHealth’s long-term sustainability.” On July 26, the Massachusetts House and Senate both rejected the Governor’s amendments, reenacted the bill, and added an “emergency preamble” that stated: “Whereas, The deferred operation of this act would tend to defeat its purpose, which is to establish forthwith certain employer healthcare contributions, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.” There was hopeful speculation from the business community that, given the rejection of his recommendations, the Governor would not sign the reenacted bill. Therefore, many were surprised that the Governor signed the bill after indicating that these changes, without other reforms, imposed an unfair burden on employers was unexpected. The “emergency” adoption of this bill contributed to the lack of information employers are now facing. Questions? You bet! Here are some questions we received last week. We hope this provides clarity, based on the limited information still available: Q: In your email, you said “All Massachusetts employers who have more than five employees must pay a fine – 5% of the employee’s wages – for every employee who receives his or her insurance through MassHealth.” Does this mean that if an employee elects MassHealth instead of the employer-sponsored insurance, the employer has to pay a 5% fine? A: Yes – the employer will pay a 5% fine for each employee who receives health care through MassHealth or subsidized coverage instead of through the employer-sponsored plan. Q: How can the employer know if the employee receives his or her insurance through MassHealth? A: The Governor’s recommendations included some details about employer reporting and tracking. Baker’s recommendations indicated that employers: 1) would need to respond to ad hoc requests from the state; and 2) would need to complete, annually, a “Health Insurance Responsibility Disclosure” form.” However, none of this detail was carried forward into the enacted bill.The bill does not specify what obligations the employer will have with regard to tracking and reporting employee coverage. According to the bill, the department of unemployment will create and publicize regulations that address details including how many days of non-employer coverage will trigger the fines and how the fines will be paid. It is possible that the regulations will also clarify any employer obligations with regard to tracking and reporting employee coverage. We will monitor the developments of the regulations and communicate details as they become available. The fines will be implemented January 1, 2018 – that’s less than five months away. Therefore, employers may not have much time between the publication of the regulations and the effective date of the new law. Employers may wish to start gathering data now to get a sense as to the size of the fines they may face. They may wish to poll employees who are not enrolled in the company-sponsored plan to understand the outside coverage the employee has elected. Q: Does the employer still pay a fine if the individual is covered under MassHealth for free? A: Very few individuals are eligible to receive MassHealth at no cost. We have included a chart that reviews eligibility and premiums. Note, too, that most individuals who are otherwise eligible for MassHealth will be required to take their employer’s plan if the plan meets the basic coverage criteria and the employer pays at least 50% of the premium. Therefore, if your company pays at least 50% of premiums, you will generally not be subject to the fines.The bill does not currently address whether employers would be subject to fines for individuals who receive MassHealth at no cost. We do know that the fines are paid for non-disabled workers. If an employee receives MassHealth due to his/her disability, the employer would not be subjected to the fine for that employee. Q: I read there is a $750 cap on the fine per employee. Is this true? A: Yes, this is true. The bill indicates that the fine is 5% of an employee’s wages. However, it defines wages in this context as the “unemployment insurance taxable wage base,” which is $15,000. $15,000 * .05 = $750 Q: I understand that the fines are effective January 1, 2018. Will Massachusetts employers be subject to them year after year? A: The bill contains “sunset” language, which indicates these fines will be repealed as of 12/31/19. It’s quite possible that, between now and 12/31/19, the sunset language will be removed or modified to push the date further out. However, as of now, these fines are effective for a two-year period only. Q: Can I question any fines? Is there an offset? A: Yes, The Department of Unemployment Insurance (DUI) will levy the fines and there is procedure to request a hearing. The bill also calls for DUI rates to remain the same to offset the increases in employer contributions for the 2 years the bill is in effect. Q: What makes an individual eligible for MassHealth? A: First, the applicant or member must be a resident of Massachusetts. Second, all those applying in the household must have a social security number or be applying for an SSN. After those basic requirements are met, eligibility is then assessed using a number of factors including citizenship, age, disability, income level, and the availability of other health coverage. We have included a chart that reviews eligibility for the different types of MassHealth coverage. We will continue to communicate with you as we learn more about this bill. In the meantime, please reach out to us with any of your questions!

© 2017 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

Don’t Jump Into an Imprecise Contract…It Will Co$t You

 

Take the case of “The Jumping Toy” a/k/a the “SkyDriver”.  The inventor, Will Isaksson, entered into an oral royalty sharing agreement with marketer, Craig Nadel and his company, Design O Matic, to market a toy known as “the Modified Kenner Car”.  The parties to the oral contract agreed to evenly split any royalties.   However, because they failed to commit their agreement to writing, the parties soon crashed into a costly and protracted lawsuit concerning several important contract terms.

As luck would have it, Isaksson altered the design of the Modified Kenner Car by adding a fin.  This fin made the toy jump.  Isaksson naturally called the toy “the Jumping Toy”, and he presented it to Nadel for possible marketing.  Isaksson wanted the toy marketed to Hasbro, but Nadel suggested a smaller company.  This disagreement drove Isaksson to go direct to Hasbro with the toy.  Hasbro agreed to sell the toy under the name “SkyDriver”, and the toy generated approximately $535,000.00 in royalties.

As you might expect, Nadel demanded 50% of the royalties from the SkyDriver and Isaksson refused.  For his part, Isaksson alleged that the oral agreement with Nadel was limited to the Modified Kenner Car and any royalties generated by it.  Nadel meanwhile alleged that the oral agreement covered any toy that arose out of the design underlying the Modified Kenner Car.

In April 1998, the parties wheeled their dispute into the United States District Court for resolution.  In December 1999, nearly 20 months later, the case was tried to a jury and Nadel won.  The jury decided that the SkyDriver was not a new toy but merely a modification of the Modified Kenner Car, and therefore covered by the oral royalty sharing contract. The jury awarded Nadel his share of the royalties. But this toy story did not end there…

The case was appealed by Isaksson.  And, in February 2003 nearly five years after the lawsuit was filed, the Appellate Court decided the appeal.  The Appeals Court accepted the jury’s determination that the SkyDriver was not a new toy.  However, the Appeals Court also ruled that there was another critical question that the jury needed to answer before deciding the case. The Appeals Court sent the case back to the trial court and the jury to decide whether or not Nadel earned his share of the royalties under the oral contract.  The specific questions that the Appeals Court required the jury to answer – (1) what performance the Modified Kenner Car agreement required of Nadel for him to earn a share of the royalties, and (2) whether Nadel fulfilled those performance obligations?

The parties ended up resolving this dispute in a confidential settlement before returning to the jury for answers to these additional questions.  However, neither party could take a victory lap in this case, having spent too many years fighting and thousands upon thousands of dollars on lawyers.  This dispute could have been avoided with a well-crafted contract.

Do you want to lower your risk of a contract dispute and avoid Court?  We can help!

You can reach us at 508.548.4888 or info@foleylawpractice.com

© Foley & Foley, PC 2017

Workplace Posters are Free. Really.

Clients often receive pressing, official-looking notices urging the purchase of mandatory employment law postings. While you do have to post, you do not have to buy. Although some states also try to sell posters which is really cheap, all required postings are available free of charge (keep scrolling).  Please see the links below, from the federal government and states where we practice:

Federal: United States Department of Labor – Wage and Hour Division

Massachusetts: Labor and Workforce Development – Massachusetts Workplace Poster Requirements

California: http://www.taxes.ca.gov/payroll_tax/postingreqbus.shtml

Connecticut: https://www.ctdol.state.ct.us/gendocs/Labor_Posters.htm

Georgia: https://dhs.georgia.gov/department-labor-required-workplace-posters

Illinois: https://www.illinois.gov/idol/Employers/Pages/posters.aspx

Kansas:  http://www.dol.ks.gov/Laws/Posters.aspx

Maine: http://www.maine.gov/labor/posters/

Maryland: https://www.dllr.state.md.us/oeope/poster.shtml

Minnesota:  http://www.dli.mn.gov/ls/posters.asp

Missouri: https://labor.mo.gov/posters

New Hampshire: https://www.nh.gov/labor/forms/mandatory-posters.htm

New York: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

North Carolina:  http://www.nclabor.com/posters/posters.htm

Oregon:  http://staging.apps.oregon.gov/boli/TA/Pages/Req_Post.aspx

Pennsylvania: http://www.hrm.oa.pa.gov/workplace-support/required-postings/Pages/default.aspx

Texas: http://www.twc.state.tx.us/businesses/posters-workplace

Utah: https://laborcommission.utah.gov/divisions/UOSH/RequiredPosters.html

Vermont: http://labor.vermont.gov/

Wisconsin:  https://dwd.wisconsin.gov/dwd/posters.htm

As always, should you have any questions including information for additional state postings, please contact us. We can help. Mike@foleylawpractice.com or 508-548-4888

Happy Memorial Day

Happy Memorial Day! For many, this is a day to honor fallen soldiers and also a time to get ready for summer.

Have you done the following?

• Sunscreen?
• Summer reading list?
• Pay Equity Audit?
• Midyear handbook and diagnostic workplace audit?

If you answered “No” to any one of these questions, we can help!  Read on.

SUNSCREEN

It is outside our wheelhouse but we do like to be helpful.  See the latest list from Consumer Reports. http://www.consumerreports.org/sun-protection/get-the-best-sun-protection/

PAY EQUITY

In 2016 alone, California, New York, Nebraska, Maryland and Massachusetts passed aggressive equal pay legislation. If you are not in this group, the EEOC’s proposed expansion to the EEO-1 reports means more pay data will be required from federal contractors and employers with more than 100 employees.

Do I Need to Buy More Software?

Absolutely not.  By now you may have seen software solicitations touting the importance of statistical analysis to comply with pay equity. Beware.  Sizes matters: unless an employer has a significant number of employees performing the same role and a statistically significant amount are women, a statistical analysis will not produce reliable results. Most of our clients should perform a cohort analysis, which better compares the factors affecting pay.

Why Should I Use Your Pay Equity Audit?  

By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential.  Moreover, in Massachusetts you create a rolling affirmative defense by conducting an evaluation of pay practices if it is completed within three years prior to the commencement of a wage discrimination claim. We have developed an effective and painless Pay Equity Audit to achieve compliance and create an affirmative defense.

Why Now? 

The effective date of the MA Pay Equity Law is July 1, 2018.  Many of you are planning for 2018 in your budgets and hiring. Include Pay Equity in that list to be compliant and create the rolling affirmative defense against any future claims.

SUMMER READING

Software slamming aside, Bill Gates is a pretty smart guy.  His summer reading list looks terrific.  Check it out!  https://www.gatesnotes.com/About-Bill-Gates/Summer-Books-2017?WT.mc_id=05_22_2017_10_SummerBooks2017_BG-media_&WT.tsrc=BGmedia

 

MIDYEAR HANDBOOK AND DIAGNOSTIC AUDIT

Probably not high on your reading list but terribly important is your employee handbook.  When is the last time you read it? We recommend that you review and update your handbook on an annual basis. Now is a particularly good time given the many local and state law updates.  Marijuana, equal pay, paid family leave, sick leave—many changes have taken place that are probably not properly addressed in your handbook.

Why Worry about the Handbook?

A well-crafted handbook serves many valuable purposes:

• Define the culture of your business
• Set expectations
• Inform employees of compensation, benefits and rules
• Provide a clear avenue for dispute resolution, a critical road map for staff

Your Handbook are a valuable tool for you and an important resource for employees.

 

What is the Diagnostic Audit?

The Risk Management Diagnostic Audit is a tool we have developed to allow you to identify and respond to the compliance risks at your workplace. This audit targets your organization’s unique vulnerability and provides action items to put you on the path to compliance.  Please check out our website or call 508-548-4888 for the steps and timelines for this popular service. http://www.foleylawpractice.com/diagnostic-compliance-audit.html

Enjoy the long weekend!

Contact us at 508-548-4888 or info@foleylawpractice.com

 

 

 

Why Many Executive Orders are Hot Air

On May 4, 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty.  Could this order allow discrimination against LGBTQ individuals and women, as feared?   Will this impact the workplace? No. Here is the line to remember: Existing laws cannot be overturned by Executive Orders.

Let’s take a look at this Order as a good example. The portion of the Order that pertains to Federal law is:

_Sec_. _4_. _Religious Liberty Guidance_. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Attorney General Jeff Sessions can issue guidance until the cows come home: The US Equal Employment Opportunity Commission (EEOC) does not answer to him.  The EEOC is an independent federal agency charged with enforcing federal laws against illegal discrimination in the workplace. Laws like the ADA, ADEA, FLSA, FMLA and Title VII are under the purview of the EEOC for enforcement and guidance. Congress may make changes to the laws and the courts can overrule, clarify or uphold the laws.

Executive Orders might be good optics but cannot impact the rule of federal. state or local law in the workplace.

MA Wage Act is mightier than your commission plan

 

Last month, a Massachusetts US District Court judge held that a former employee who quit was still eligible for $32,000 in sales commissions despite a commission plan that provided otherwise.  (Israel v. Voya Institutional Plan Services, LLCI)  Voya’s commission plan specifically stated that an employee who resigns is not eligible for further commission payments.  The plan was clear and on point.  How did the judge get to yes on the commission?

Voya’s plan could not override the Wage Act requirement that sales commissions be paid promptly once the amount is “definitely determined”–at that point the commission becomes “due and payable.” The judge distinguished a sales commission, as a share of sales revenue generated by an employee, from other types of variable compensation– like a bonus.  Because the amount of commission was known and earned based on sales, it fell under the Wage Act’s strict payment requirements.

Massachusetts employers who provide commissions as part of their pay structure are advised to review their commission plans in light of this decision.  As we all know, the MA Wage Act, with its costly provisions for damages and attorney’s fees, is not to be taken lightly.

WORKPLACE COMPLIANCE IN THE TRUMP-ERA: IT IS NOT ABOUT TWITTER

 

It has been noted politicians campaign in poetry and govern in prose.  That may sound too lofty to describe current times, but the sentiment remains: promises made on the campaign trail do not easily translate into law. We have a Republican President and a Republican Congress, which historically has meant a more business-friendly regulatory environment.  Yet as the first 100 days will show, unwinding is neither quick nor easy. The Affordable Care Act has not been repealed and little is on the horizon. The President’s Budget Blueprint for 2018 proposes to slash the Department of Labor’s (DOL) budget by 21%. What does this mean for employers right now, or even over the next year?

In short, not a lot. Meanwhile, state and local governments are legislating like mad to fill the gaps that could be created by proposed budget cuts and executive orders. President Trump is an active Twitter user but as detailed below, that communication belies the actual activity of the federal government. #Realtalk

Are employers off the hook for federal mandates? Not so fast. Most of the federal regulations that govern the workplace remain in place and, given the inability to repeal the much lamented ACA, may not change at all.

Below is a quick overview of the current federal landscape under President Trump. Without actual policy as a guide, we are using the President’s proposed budget as a crystal ball. Please note that many states, including Massachusetts and California, have stricter mandates than the federal laws:

THE FUTURE OF DOL/OSHA/EEOC ENFORCEMENT

The President has proposed $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget. Because Congress has to approve the budget this is only an outline of the actual budget.  The blue print is short on details, but does expressly call for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at certain facilities.  These cuts account for $500 million dollars of the DOL budget. The blueprint does not specify where the other $2 billion in cost savings will come from, except to say more funding responsibility will go to the states.  If approved by Congress—a big if–the cuts will involve a loss of funds that could be distributed heavily through DOL’s enforcement programs. This will include the EEOC and OSHA. Yet the process by which these agencies collect fines is a valuable revenue generator and unlikely to end easily.

At this point, the likelihood of the final budget looking like the proposed one is total conjecture. Furthermore, even with the expected cuts to the DOL’s enforcement and regulatory programs, it is important to recall that under the last Republican administration—no fan of regulation– the DOL still enforced the law. Moreover, as the federal government delivers more labor enforcement responsibility to the states, employers will increasingly be forced to work to achieve compliance on two fronts, instead of one.

RIGHT NOW

Every administration has used the media as a means of furthering and communicating its chosen agenda, and the Trump administration is no exception.  The choices the administration makes in what it chooses to publicize likely signal the administration’s direction; but also shape the public’s perception of what it is actively doing.  The Trump administration and President Trump in particular use social media and news reports for the purpose of shaping the public’s understanding their activity.  From a compliance standpoint, this actually creates risk for employers.

Despite the President’s proposed budget and awaited confirmation of a new Labor secretary, the New York Times reported  that DOL enforcement actions continue.  In a departure from past practice, the department has stopped publicizing fines against companies. As the New York Times points out, the Obama administration used the announcements as an enforcement tool, and a means to influence employers.  However, the announcements also served as an important window for employers into the DOL’s current position on important compliance issues such as wage and hour or OSHA safety enforcement.  If a company in the same industry was recently fined for a practice, that action provided others in the industry with important notice to examine their practice.  Employers no longer have this benefit.  Furthermore, those who believe that the lack of information surrounding DOL enforcement means they no longer have to worry about the threat of an audit do so at their own peril.  At the present, and until the new budget is confirmed months from now, agency enforcement has not changed.  For those inclined to believe the confirmation of the new Labor secretary will change that should keep in mind that DOL audits are a money-maker for the agency.  There seems to be little reason for them to stop.

WHAT TO DO

The last few years have seen a seismic change in the number of employment laws on both the state and federal level.  If it has been a few years since your organization has updated its employee handbook, you have a compliance problem on your hands.  Updating your handbook and policies is an important step to mitigate risk.

And remember, statutes, regulatory guidance and case opinions published by the courts are what impact compliance obligations, not the news. What happens on Twitter does not reflect the actions of the agencies of the federal government. #Really

Landmark decision: A federal appeals court rules Title VII bars sexual orientation bias in the workplace

“..[I]t is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex…” wrote Chief Circuit Judge Diane P. Wood of the 7th Circuit Appeals Court,  wiping away prior ambiguity surrounding Title VII protections based on sexual orientation. The 8-3 decision, held in a rare en banc hearing, arose out of Indiana professor Kimberly Hively’s lawsuit against her former employer Ivy Tech Community College. Hively claimed her denial of promotions, tenure and her eventual termination were because she is a lesbian.

The 7th Circuit completely bypassed the issue of Congressional intent of the word “sex” in Title VII. Judge Posner opined that the court was not the “obedient servants of the 88th Congress (1963-1965)” and the court was “[T]aking advantage of what the last half century has taught.”

This case matters beyond Illinois, Indiana and Wisconsin. This decision reflects what many state and local government have already done to protect LGBT workers, and similar cases will be heard in other circuits.  Most importantly, it is a best practice to implement policies, procedures and training that prohibits discrimination based on sexual orientation in the workplace.

We can help. Contact us at info@foleylawpractice.com or call 508.548.4888 to update your handbook and policies. Visit http://www.foleylawpractice.com for more resources.