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: job classification
New Year, New Laws, New Website
Hope your 2018 is off to a great start! We have a robust new website which we updated to change those awful pictures make it easier to use our resources. Please take a minute and check it out? http://www.foleylawpractice.com
Remember those laws we wrote about months ago — Pay Equity Act and the Pregnant Workers Fairness Act? They’re finally here. We break it down with action steps below, including, of course, sexual harassment:
Massachusetts Pregnant Workers Fairness Act (MPWFA): This law will require all Massachusetts employers to update handbooks and policies; provide reasonable accommodation to pregnant and breastfeeding employees; and provide written notice to all employees about their right to be free from discrimination under this Act no later than April 1, 2018.
The law amends Massachusetts anti-discrimination laws to specifically prohibit retaliation and discrimination against pregnant employees, creating a new protected class to include: “pregnancy or a condition related to pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child.” While Massachusetts and Federal laws already prohibit pregnancy discrimination, the new law creates an obligation for employers to engage in an interactive dialogue, provide accommodations to pregnant and breastfeeding employees and provide new, existing and newly pregnant employees with notice of these new rights. With the creation of a new protected class comes familiar language and obligations: reasonable accommodation, interactive process and undue hardship.
Reasonable accommodation might include more frequent rest breaks; seating or modified equipment; paid or unpaid time off to recover from childbirth; a private space to express breast milk that is not a bathroom; job restructuring; or a modified work schedule. The interactive process mandate requires employers and employees (or prospective employees) to engage in a timely and good faith interactive process to determine a reasonable accommodation to perform the essential functions of the job. An employer is not required to provide and accommodation that would cause an undue hardship, defined as an accommodation “requiring significant difficulty or expense.” Finally, an employee may not be forced to take a leave of absence if a reasonable accommodation could be made to stay on the job.
Next Steps
- Update handbooks and personnel policies to reflect the increased obligations under the new law, including the adoption of a specific policy outlining and documenting the interactive process;
- Train human resources personnel and managers regarding the requirements of the Act;
- Ensure proper measures are in place to provide written notice in all instances required under the Act; and
Contact us with any questions and assistance in compliance. This law is a big deal.
Pay Equity–It really is on the horizon.
One of the strongest state laws in the country addressing equal pay for comparable work will take effect in Massachusetts on July 1, 2018.
The sweeping Act makes many changes including how to determine comparable work, and prohibiting salary and benefit inquiries before hire, to name a few. Employees will not be required to file a claim with MCAD as before but can go directly to court.
The silver lining of these new obligations is the Act provides an affirmative defense to employers who perform a good faith evaluation of pay practices. Over the past several months many of our clients have utilized out Pay Equity Audit which creates a rolling affirmative defense for your company. We strongly advise employers to take advantage of this comprehensive and valuable service before July 1, 2018.
Sexual Harassment
The standard sexual harassment compliance advice has been to implement a well-written sexual harassment policy and invest in sexual harassment training. Yet many of the workplaces rocked by recent claims—including the Weinstein Company in California, home to the country’s strictest anti-harassment laws—had a policy and training in place. What can be done?
In response to the changes in climate and the new EEOC guidelines, we have developed a Sexual Harassment Tool Kit. For a flat fee we will provide:
- A digital copy of Attorney Angela Snyder’s No More #MeToos webinar that can be shared with your entire leadership team, serving as the first level of effective sexual harassment training for leadership and HR;
- A comprehensive outline for creating a sexual harassment strategy for your organization;
- A model sexual harassment policy and/or review of your existing sexual harassment policy;
- Sample Letter from Leadership in Word that sets forth your organization and leadership’s commitment to addressing sexual harassment in the workplace that can be modified to meet your specific needs;
- A sample “pulse” survey to send to employees that will help uncover underlying cultural erosions; and
- One hour of attorney time to uncover your unique risks based on demographics and culture. During that discussion we will provide a punch list of action items that will help you finalize a customized sexual harassment strategy.
We believe strongly in proactive advice and want to make this service as accessible as possible. We are offering the Tool Kit for a very reasonable flat fee. Please contact us.
We can help! Reach out to us at questions@foleylawpractice.com or (508) 548-4888.
Now what?
by Attorney Angela Snyder
What Happens Now?
Change comes with every Presidential election and this one could be seismic. Naturally, when we heard the outcome, we began questioning, what does this mean for employment laws? What will happen to the Affordable Care Act? What will happen with the new overtime rules? Should businesses ignore the December 1 deadline and just wait to see what happens next? For Massachusetts, California, Maine and Nevada employers, and 25% of the country, employees will now have access to legal recreational marijuana. How will the workplace be affected?
While we cannot read the future, we spend much of our day watching laws change and examining legal trends. Here are our predictions and advice for weathering the coming changes.
The Overtime Rules
As a threshold matter, Donald Trump will become the President on January 20, 2017, after the new overtime rule takes effect. Although Trump’s Secretary of Labor will likely roll back many of President Obama’s employment-related initiatives, the breadth of these changes remains to be seen. Trump has not released a specific policy or position, although he has said he favors “a delay or a carve-out of sorts,” but only for small businesses. This is far from a guarantee.
Additionally, as we have advised over the last year, the FLSA White Collar exemptions require a 3 part test. Employees must receive a salary of at least $455 per week (rising to $913) per week; they must receive the same salary no matter how many hours they work; and they must pass a strict duties test. The new FLSA rule set to take effect December 1, 2016, addresses only the minimum salary level portion of the test. Many employers audited all of their exempt positions in preparation of these new rules. To the extent employees were reclassified because their duties did not meet the requirements of one of the White Collar exemptions, a rollback of the new salary levels will be irrelevant.
In late September, two lawsuits were filed in federal court in Texas, and legislation that would delay the effective date of the rule until June 2017 passed the U.S. House of Representatives. None of the legislation will pass into law before the new rules go into effect. As for the lawsuits, there is a hearing this week in an action to challenge the rule; and it is possible the presiding judge will issue an injunction at that time. However, the judge hearing the case is an Obama appointee, which means it is more than likely that on December 1, 2016, by law, all exempt positions must receive a salary of at least $913 per week.
Why comply, when there is a chance the new rules will be rolled back? As a quick reminder, under the FLSA, non-exempt employees who are improperly classified will be owed back wages and liquidated damages (equal to the back wages owed), and the auditing agency or court will look back two years to determine the overtime and wages owed. If they believe the employer intentionally misclassified employees, that period extends to three years. Under Massachusetts law, employees are entitled to treble damages. These are not small penalties and often result in fines in the tens or hundreds of thousands of dollars.
For this reason, we advise all of our clients to comply with the new overtime rules on December 1. If the new administration changes the rules, these employees can always be reclassified as exempt at a later date.
Affordable Care Act
Trump and Republicans in Congress have stated that they will seek to repeal ObamaCare within Trump’s first hundred days in office. There are roughly 1,000 pages of the ACA and its related provisions. A full repeal will be incredibly difficult, but it is possible. It does look like Trump’s intention is to replace the ACA with some other program, which means 2017 should be interesting for employers. Trump has also stated he would keep the pre-existing condition mandate and the availability of insurance for children until the age of 26, which sounds a lot like…ObamaCare.
Marijuana Use
With the advent of the edible marijuana industry, a gummy bear is no longer a gummy bear. Recreational pot shops are coming to Massachusetts in 2018. Wondering how to prepare your workplace? Here are some things to know when it comes to creating policies on marijuana use:
- There is not an accurate test for marijuana intoxication. An employee who uses marijuana outside of work (even the day before) will likely fail a blood test, even if the use was totally outside of work, and he or she was not intoxicated at the time of testing. Given the legalization of medical marijuana in particular, this has resulted in a number of lawsuits.
- Although marijuana has now been legalized in a number of states, it is still considered a ‘controlled substance’ under federal law. As such, at least for the time being, marijuana use remains illegal under federal law. Thus, any federal employer or private employer that receives federal monies may have to conduct testing under federal guidelines.
- Finally, only New Hampshire and Arizona have laws protecting medicinal marijuana use and preventing employers from discriminating against marijuana users. This will likely change now that Massachusetts and California have legalized marijuana.
So, what does all of this mean? In the states that legalized marijuana in 2012, there have been lawsuits filed by employees who have been terminated after a positive drug test. The outcome of these cases has been surprisingly consistent, and offered employers a fair amount of latitude when it comes to drug testing and terminating employees for marijuana use. This has been true even in states where recreational marijuana use is legal. However, the courts up to this point have relied on the fact that marijuana remains illegal under federal law as a major justification for their decisions.
Now that legal access to recreational marijuana exists in several states, it is likely the federal government will have to look seriously at declassifying marijuana as a Schedule I drug. This, in turn, will likely influence legal decisions.
Although the Massachusetts recreational marijuana law does not directly alter the state laws governing employer drug testing, it definitely makes sense to review your drug testing policies in light of the new law. At a minimum, policies that call for termination or other discipline for an employee’s use of “illegal” drugs may need to be revised, given that it is no longer illegal for adults to use marijuana in Massachusetts.
As to what amount of marijuana use should result in a termination, Colorado and Washington, where recreational use of marijuana is legal, set the level of impairment at 5 nanograms of active tetrahydrocannabinol (THC) based on a set amount of blood. Pennsylvania set a 1 nanogram threshold; Nevada and Ohio opted for 2 nanograms. States are all over the map because setting a specific impairment threshold with THC is not as clear-cut as it is with alcohol. THC can remain in a person’s system for days and weeks. That means blood tests alone are unreliable.
In 2014, after marijuana was legalized in Washington, fatal crashes where the driver was found to have THC in his/her blood doubled from around 8% to 17%. Now that so many states have legalized marijuana, the U.S. is going to be forced to find a national standard for sobriety that is based on real science. However, until that happens, testing for marijuana use will continue to be problematic.
Recommendations
Private employers have latitude in terms of behavior they can prevent in the workplace. Just as you can prohibit employees from having alcohol in the workplace, you can prohibit them from possessing or being under the influence of marijuana in the workplace.
Where your testing is limited to reasonable suspicion testing, your risk of an employee claim of wrongful termination based on a positive drug test is much lower than if you conduct random tests. Although an employee may dispute the validity of your test, if you also have documented reasonable suspicion that an employee was under the influence while at work, you will be able to show that your action as an employer was based on a reasonable and good faith belief that the employee was a danger to him/herself or others.
As for smoking, you can continue to prohibit smoking marijuana and/or ingesting marijuana just as you can prohibit smoking cigarettes or drinking alcohol.
What About the Rest?
Without question our clients should expect some change in the employment law landscape with the new administration, and it will likely be more employer friendly. However, as we observed during the election, Mr. Trump has shifted positions on many issues, many times. Trump’s appointments to the DOL, the EEOC, NLRB, and OSHA, not to mention the Supreme Court, will be far more telling of the direction of employment related laws in the coming years.
We can help: info@foleylawpractice.com or 508-548-4888
DOL OT Rule Going Away? Don’t count your chickens… .
In a new development, 21 states and many business groups are requesting that the Texas court enjoin implementation of the new DOL overtime exemption rules. As far as their chance of success, at least in the near term, it is not good.
Reports are that both cases have been assigned to Judge Amos Mazzant, who was nominated by President Barack Obama in 2014. It has been suggested that this assignment may not bode well for the plaintiffs. Theoretically, prospects may improve if the lower court decision is taken up on appeal to the Fifth Circuit.
The states are claiming that the DOL overstepped by raising the salary level for what should be exempt duties–regardless of salary. Moreover, the plaintiffs allege that the automatic indexing that raises the threshold salary over three years is an overreach of authority and should include provisions for economic conditions or the effect on resources.
Our view is that we all stay the course, and continue compliance efforts. With the compliance date of December 1 so close, it would be risky to leave the fate your workplace with the courts. In the meantime we will closely monitor this case and if the courts stop implementation, that will be a wonderful surprise.
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!
Help is on the way! Implementing the new DOL mandates.
As you know, the final version of the Department of Labor’s (DOL) updated overtime rules have been issued. In a nutshell, these overtime rules will raise the salary threshold for “white collar” workers from $455 per week to $913 per week starting December 1, 2016.
Our clients and the groups we have presented to have expressed a great deal of anxiety about these new overtime rules. Many are totally overwhelmed. Who will be impacted? How do we handle this? What does compliance even look like?
In response to these concerns, we created a Position Classification Service to help our clients and the groups in which we are involved. We recognize the incredible vulnerability employers are feeling, and we want to help. We believe this service provides two vital benefits:
- Clear, step by step checklists that allow your business to create legally compliant employment classifications and job descriptions. The resource documents we provide and the classification process will train your employees so that they are better able to create accurate job descriptions and employee classifications going forward.
- Legal counsel at a flat fee. We will review your job descriptions and job classifications, edit them, and provide you with clear guidance regarding compliance with these new laws. Because this review is conducted by outside counsel, it is protected by attorney client privilege. In other words, if we discover a mistake, that knowledge is protected.
Position Classification Process
Please let us know how we can help.
Workplace Law, Helping Employers 