Courts in Massachusetts continue to strictly interpret and apply the state’s independent contractor law: the state favors employment status. On February 27, 2018, the Appeals Court of Massachusetts (AC) ruled that GateHouse Media Massachusetts I, the publisher of the Patriot Ledger, misclassified David King, a newspaper delivery driver, as an independent contractor (2018 WL 1058352). The AC ruled that King was an employee and thereby affirmed a Norfolk Superior Court judgment against GateHouse.
As with most Court decisions in this area of Massachusetts law, the Appeals Court cited to the second prong of the independent contractor test – GateHouse was required to prove that the service furnished by King was “performed outside the usual course of the business of the employer” (M.G.L.A. 149, § 148B). GateHouse failed in that regard, as is often the case. The Court assessed Gatehouse’s evidence by looking at: (1) its own previous description of its business; and also (2) evidence of whether or not the service was necessary (not just incidental) to GateHouse’s business. As GateHouse had previously held itself out as a distributor of the newspaper, and given that the delivery drivers play a big role in distribution, the AC concluded that King was an employee.
Mr. King is one of many who have delivered the Patriot Ledger by automobile to some of the paper’s subscribers. GateHouse now faces the possibility of paying damages to other similarly situated drivers through a related class action. The newspaper is in the unfortunate spot of being the story–do not let it happen to your business.
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Foley & Foley, PC offers an Positions Classification Audit service to identify potential pitfalls of independent contractors and wage and hour issues. It is an efficient and easy way to protect your business. If you would like more information about this service or any other questions, please contact (508) 548-4888 or info@foleylawpractice.com
Category: back pay
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
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.
I feel the Earth move, under my feet
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EMPLOYMENT LAW ALERT: Less than 3 months to comply with overtime rules
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Pay Equity in Massachusetts – What Employers Need to Know Before the New Law Takes Effect July 1, 2018
Here’s What We Know:
- It is no secret that there is still a workplace wage gap between the genders.
- Prior to the passage of certain laws a little over five decades ago, female employees working full-time were earning on average only about sixty percent (60%) of the amount earned by their male counterparts.
- Progress has been made in closing the pay gap.
- According to the Economic Policy Institute, women are taking home 83 cents for every dollar earned by men.
- According to the Federal Department of Labor, pay equity for younger workers is near parity.
- Today, in Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:
- The Federal Equal Pay Act (“FEPA”);
- Title VII of the Civil Right Act of 1964 (“Title VII”);
- The Massachusetts Equal Pay Act (“MEPA”); and
- Chapter 151B of the General Laws of Massachusetts (“151B”).
- The National Labor Relations Act governs most private sector employers in the Commonwealth and throughout the country. That law makes it abundantly clear that employees have the right to engage in protected concerted activity. That means that no employer is allowed to retaliate against, discipline or terminate an employee who discusses how much money they make or how much money someone else makes.
- Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.
What Will Change When The New Law Goes Into Effect On 7/1/18:
- The current Massachusetts Equal Pay Act (“MEPA”) requires employers to provide “equal pay” for “equal work.” The new law prohibits differences in pay for “comparable work,” which is defined as solely meaning “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
- Unfortunately, we will have another vague term that creates an ambiguous standard that will expand employers’ obligations to insure equal pay within it workplace.
- The current practice of assessing pay equity within job titles and job descriptions must now expand across different jobs to meet the “comparable work” standard.
- Wage Disclosure Restriction – The law will prohibit employers from requiring an applicant’s compensation history prior to making a job offer that includes pay/compensation. However, applicants can voluntarily disclose wage history and job applications should note that providing pay history information is voluntary. Make no mistake – the new law does not govern or in any way restrict conversations within the recruitment process related to portable business. Such as: how many clients do you currently work with? How many of those clients are likely to follow you? How much revenue do you expect those clients to generate if they follow you and you land here? Tell us about how you create and maintain your contact network, including the number and types of contacts you have within our industry?
- We also know that conversations in the workplace about pay are protected.
How Can Employers Avoid Liability:
- Wage differentials between employees of opposite genders must be based upon one of the following factors:
- Seniority – Provided that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave should not reduce seniority.
- Merit system;
- Quality or Quantity of Production – A system which measures earnings by quantity or quality of production, sales, or revenue;
- Geographic location in which a job is performed;
- Education, training or experience to the extent such factors are reasonably related to the particular job in question; and
- Travel, if travel is a regular and necessary condition of the particular job.
- Create a rolling affirmative defense by conducting a self-evaluation of pay practices that is “reasonable in detail and scope in light of the size of the employer” and make “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. This evaluation creates an affirmative defense if it is completed within the three years prior to the commencement of a wage discrimination claim.
- Our Pay Equity Audit will create a rolling affirmative defense for your company.
Take Full Advantage Of The Next 23 Months To Achieve Compliance:
- Benjamin Franklin was right: an ounce of prevention is really worth a pound of cure and nevermore than in wage issues.
- Take advantage of our Pay Equity Audit to achieve compliance and create a rolling affirmative defense.
- Revise pertinent policies, your company’s employment application, training and hiring practices to reduce exposure.
We can help!
Understanding the Zone in the Workplace
-Attorney Timothy G. Kenneally
Retaliation protection in the workplace is defined by the “zone of interests” standard. If an employee falls within the interests sought to be protected under the law (Title VII) that employee is shielded against retaliatory adverse employment action.
A recent decision by the Massachusetts Commission Against Discrimination (the “Commission”) in Schillace v. Enos Home Energy Therapy illustrates how the zone works. Schillace charge Enos with terminating her employment because her fiancé, who had also worked for Enos, had previously charged the company with retaliation. The Commission concluded that the fiancé relationship was “a close personal association” for Schillace, and therefore she was protected against any adverse employment action motived by or related to her fiancé’s claim. The Commission concluded that Schillace was entitled to back pay and damages for emotional distress due to the wrongful termination of her employment. In other words, she was in the zone of protection.
How should employers properly define the zone and react to it? For starters, employers must acknowledge that the focus on a zone of interests, in practice, creates a unique type of protection for each employee. This personalized zone is defined by any and all of the employee’s known close personal associations with members of protected classes. Close personal associations have been defined to include blood relatives, relatives by marriage, adoptive relations, and of course, a fiancé. However, we hesitate to suggest that a Court or the Commission will not define the group more broadly to include other persons closely tied to the employee.
Before taking adverse employment action, employers must consider all of the employee’s known close personal associations. Do any of those persons fall within protected classes? Can the adverse action be viewed as retaliation related to a person associated with the employee? Only through a measured and careful analysis, can an employer minimize its risk of running afoul of the ZONE.
If you have any questions about the zone of interests, feel free to contact me at tim@foleylawpractice.com.
Workplace Law, Helping Employers 