Category Archives: Labor & Employment

Supreme Court Adopts More Expansive View of FLSA Exemptions

Since the 1950s, the U.S. Supreme Court has taken the view that the exemptions to the Fair Labor Standards Act (“FLSA”), which exempt employees from the FLSA’s minimum wage and overtime requirements, should be interpreted narrowly. In its April 2, 2018 decision in Encino Motorcars v. Navarro, however, the Supreme Court reversed course and rejected this principle. As a result, the decision allows courts to give broader interpretations to the FLSA exemptions,… More

Massachusetts Attorney General Releases Guidance on Equal Pay Act

The Massachusetts Attorney General (the “AG”) recently released her long-awaited guidance regarding the 2016 overhaul of the Massachusetts Equal Pay Act (the “Act”), which takes effect on July 1, 2018. (For a summary of the Act’s key provisions, click here.) The Act, which, among other things, prohibits employers from paying employees of different genders differently for comparable work, has left employers with many questions as to how its provisions would be interpreted and enforced.… More

Is “Merit-Based” Immigration Code for Something Else?

U.S. Citizenship and Immigration Services (USCIS) hosted a DHS stakeholders call entitled “H-1B Cap and Filing Tips Stakeholder Engagementthat I participated in on March 6. It made me think about “merit-based” immigration and how we have not seen movement of any real proposals by the Trump administration – or his supporters in Congress.  I wondered what they have in mind for merit-based immigration and would it actually work for my clients,… More

NLRB Vacates Hy-Brand Joint Employment Liability Standard Because of Board Member Conflict

On February 26, 2018, the National Labor Relations Board vacated its recent ruling in the Hy-Brand Industrial Contractors, Inc. case that had set a new standard for determining joint employer status. The action was not for substantive reasons. Instead, it was due solely to a conflict that arose because one of the Board members who decided the case, William Emanuel, had previously worked for a law firm that had represented a party in the case.… More

Sick Time Not Subject to Massachusetts Wage Act

On January 29, 2018, the Massachusetts Supreme Judicial Court (SJC) held that accrued, unused sick time does not qualify as “wages” under the Massachusetts Wage Act. As a result, employees cannot maintain Wage Act claims against their employers based on the failure to pay employees for unused sick time.

The Massachusetts Earned Sick Time law does not require that employers pay employees for their accrued,… More

Seismic Business Immigration Policy Shift in the Works for 2018

New changes to H-1B Lottery; H-4 EADs on the chopping block; AC 21 H-1B extensions in trouble; and how to plan for it all
Changes to the H-1B Program and the H-1B Visa Lottery

The Department of Homeland Security (DHS) plans to revise the lottery process for the upcoming fiscal year. The announcement may come as early as next month. It proposes a pre-registration system for cap-subject H-1B visa applicants.… More

2017 Immigration Policy Roundup

This year saw significant changes to immigration policy in the United States. Here is a brief roundup of recent developments that companies should continue to monitor in 2018.

The Travel Ban
BACKGROUND

President Trump issued the third revision of his travel ban entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” on September 24,… More

Protect and Grow American Jobs Act: New H-1B Bill Targeted at Dependent Employers

On November 15, 2017, the House Judiciary Committee approved The Protect and Grow American Jobs Act (H.R. 170), which primarily affects “H-1B dependent” employers. The bill revises the definition of a dependent H-1B employer to include all employers which have a workforce that is more than 20% percent H-1B employees (an improvement over the current 15% test). However, if a company qualifies as an H-1B dependent employer,… More

State and Federal Government Move to Enforce Employer Health Care Assessments

On Tuesday, November 7, 2017, the Massachusetts Executive Office of Labor and Workforce Development issued proposed regulations to implement the Employer Medical Assistance Contribution (EMAC) supplemental assessment that was signed into law by Governor Baker this summer. At nearly the same time, the Internal Revenue Service announced that it would begin enforcement of the employer mandate enacted as part of the federal Affordable Care Act. Employers and human resources managers should pay close attention to these developments.… More

President Signs EO Loosening Health Care Regulations

On October 12, 2017, President Trump signed an Executive Order (EO) entitled “Promoting Healthcare Choice and Competition Across the United States.” The much-anticipated EO directs the Departments of Treasury, Labor, and Health and Human Services to work on drafting rules and guidance to loosen regulations on insurance and to change the way in which individuals and employers purchase insurance in order to achieve three primary objectives:

  • Expand access to “Association Health Plans” (“AHPs”)
  • Expand availability of short-term limited duration insurance (“STLDI”)
  • Expand availability and permitted use of Health Reimbursement Accounts (“HRAs”)

According to the EO,… More

EEOC’s Collection of Pay Data Delayed

On Tuesday, August 29, 2017, the White House Office of Management and Budget (OMB) initiated a review of the EEOC’s pay data collection rule. As a result, the EEOC’s collection of pay data, which was to have begun on March 31, 2018, has been stayed indefinitely.

The EEOC adopted the pay data collection rule in September 2016. Under the rule, employers with 100 or more employees would be required to report employee pay data to the EEOC annually on updated Employer Information Report forms (EEO-1s),… More

Massachusetts SJC Extends Job Protections to Medical Marijuana Users

In a landmark decision, the Massachusetts Supreme Judicial Court (“SJC”) ruled on Monday that an employee who is fired for testing positive for marijuana due to her lawful off-duty use of medical marijuana can pursue a claim of handicap discrimination against her former employer. With the ruling, Massachusetts has become the first state to afford such job protections to workers who lawfully use medical marijuana. Moreover, the ruling essentially precludes Massachusetts employers from adopting blanket drug-free workplace policies.… More

New Massachusetts Employer Assessment Intended to Deter MassHealth Enrollment

Since the beginning of this year’s legislative session, Governor Baker has expressed concern over the growth in enrollment in MassHealth, the state’s Medicaid program. A look at the numbers explains why. Prior to the enactment of the Affordable Care Act’s Medicaid expansion in 2014, there were 1.3 million people enrolled in MassHealth. By April of this year, that number had increased by 28.4%, to nearly 1.7 million state residents.… More

SJC Rules Wage Act Plaintiffs Are Entitled to Prejudgment Interest, But Not on Treble Damages

Last week, the Massachusetts Supreme Judicial Court (“SJC”) resolved a contested issue under the Massachusetts Wage Act, ruling that successful Wage Act plaintiffs are entitled to prejudgment interest on the unpaid wages and other benefits they are awarded. However, the SJC held that employees cannot recover interest on the liquidated damages they are awarded for Wage Act violations.

The SJC’s decision in George, et al.… More

U.S. Department of Labor Signals Coming Changes

On June 27, 2017, the U.S. Department of Labor (DOL) made two announcements that signal a change of direction for the new Administration. First, the DOL announced in a press release that it would return to its decades-long practice of issuing “opinion letters,” which provide employers formal, written guidance on specific labor law issues. Second, the DOL began the process for seeking public notice and comment on the Obama DOL’s rule increasing the salary threshold for overtime exemptions,… More

DOL Withdraws Obama-Era Guidance on Joint Employment and Independent Contractors

On June 7, 2017, the United States Department of Labor (“DOL”) announced that it is withdrawing the prior Administration’s guidance on joint employment and independent contractors. The Obama Administration had issued Administrator’s Interpretations (“AI”) in 2015 and 2016 that demonstrated its expansive view of who was an “employer” and “employee” for purposes of compliance under the Fair Labor Standards Act (“FLSA”). “Joint employment” had been broadly defined to capture certain relationships between associated companies and companies that use third parties for labor.… More

What NYC Employers Need to Know about New Salary History Law

Earlier this month, New York City Mayor Bill de Blasio signed a bill prohibiting employers from asking job candidates about their salary history. The new law will go into effect on October 31, 2017.

Beginning on October 31, 2017, questions about a job applicant’s previous compensation, and an employer’s reliance on that information in determining an applicant’s compensation, will constitute unlawful discrimination under the New York City Human Rights Law.… More

Federal Courts Block New Travel Ban Executive Order

On March 15, 2017, federal courts in Maryland, Hawaii and Washington heard arguments on motions to preliminarily enjoin the New Executive Order (“New EO”), which was issued by President Trump on March 6, 2017. Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii was the first to issue such an order (as described below), which essentially prevents implementation of the New EO’s travel and refugee restrictions.… More

New IRS Memo Concludes Benefits Paid by Fixed-Indemnity Health Plans May Be Taxable Income

On January 20, 2017, the Office of Chief Counsel of the Internal Revenue Service (IRS) issued a Memorandum on the tax treatment of benefits paid by fixed-indemnity health plans. In the Memorandum, the OCC concludes that payments from fixed-indemnity health plans that are not included in the employee’s compensation, such as those that were paid for either by the employer or through salary reduction as part of a section 125 cafeteria plan,… More

Massachusetts Minimum Wage Increases Effective January 1, 2017

A reminder for Massachusetts employers: effective January 1, 2017, the minimum wage in Massachusetts is increasing from $10.00 to $11.00 per hour.

The minimum rate for tipped service employees is also increasing, from $3.35 to $3.75 per hour.  This “service rate” only applies to workers who provide services to customers and regularly receive more than $20 in tips per month.  Additionally, their average hourly tips plus the minimum service rate must equal or exceed the $11.00 per hour minimum wage.  … More

Federal Court Blocks New Overtime Rule

On November 22, 2016, a federal judge in Texas issued a nationwide injunction preventing the U.S. Department of Labor (DOL) from implementing its new overtime rule. The rule – which would have raised the salary threshold below which employees must be paid overtime to $47,476/year – was scheduled to go into effect on December 1, 2016. (The firm’s previous client alert on the rule can be found here.) As a result,… More

Massachusetts Enacts New Pay Equity Law

Decorative Scales of JusticeOn August 1, 2016, Massachusetts Governor Charlie Baker signed the Pay Equity Act (the “Act”) into law. The Act, which goes into effect on January 1, 2018, is designed to close the wage gap between men and women. Although Massachusetts already had a pay parity law that prohibits wage discrimination, the Act provides greater clarity on what constitutes unlawful pay discrimination and imposes new rules and restrictions on employers.… More

Watch: Labor & Employment Webinar

The past year has been busy in the labor and employment law field. Foley Hoag recently presented a webinar detailing the latest legal developments.

Watch the recording:

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Topics discussed include:

  • Upcoming changes to the overtime regulations
  • The expansion of the “joint employer” doctrine
  • The increasingly aggressive EEOC
  • Legislative initiatives to change non-compete law
  • Pay equity laws
  • Current issues in immigration laws

Speakers:

State Attorneys General Send Requests for Information on Retailers’ Use of On-Call Shifts

In a continued effort to end the practice of using “on-call shifts,” several state attorneys general, including Massachusetts Attorney General Maura Healey and New York Attorney General Eric Schneiderman, sent letters last week to 15 national retailers requesting information about their use of “on-call shifts” to staff their businesses.

As we reported last June, AG Schneiderman sent letters seeking similar information about the use of “on-call shifts” to 14 major retailers last year.… More

Smoking Gun Evidence or Just a Responsible HR Professional?

Human resources professional play an important role in the workplace by helping front-line managers to understand the discrimination law. Last week, the Massachusetts Appeals Court issued a decision that could be seen as undermining that role, concluding that notes of a telephone call with a human resource consultant might be evidence of pretext. In Wagner v. Baystate Health Inc., the Appeals Court reversed the grant of summary judgment to the employer on Robert Wagner’s claim that Baystate fired him in retaliation for assisting his wife (who was also a Baystate employee) in filing a claim with the MCAD.… More

Attorney General’s Office Finalizes Regulations on Domestic Workers Bill of Rights

A few months ago, the so-called Domestic Workers Bill of Rights became law in Massachusetts. The law has not garnered a tremendous amount of attention from employment lawyers, presumably because it only covers “household employers,” who employ domestic workers such as nannies or housecleaners. As a management-side employment attorney and the employer of a wonderful nanny, I have been following this law and the development of associated regulations. … More