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IMMEDIATE UPDATE: Massachusetts Extends Deadlines for Paid Family Medical Leave Again!

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June 13, 2019

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Governor Baker recently signed an emergency bill changing key deadlines for the Paid Family Medical Leave law (PFML). Specifically, employers were required to start withholding employee contributions for PFML on July 1st, and submit first quarter contributions by October 31st. Now, with a three-month extension enacted, employers must begin payroll withholdings as of October 1, 2019, and contributions will be due January 31, 2020. This change was to allow businesses sufficient time to implement the PFML program.

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June Updates

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This Short List addresses the following topics:
  1. U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts
  2. U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf
  3. DOL Issued Updated Poster for Federal Contractors and Subcontractors
  4. California: July 1st REMINDERS for Employers
  5. Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants
  6. Colorado: Wage Garnishment Reform on the Horizon
  7. Connecticut: Minimum Wage Increasing to $15 an Hour
  8. Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air
  9. Kansas City, MO: Bans Pre-Employment Salary History Inquiries
  10. Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers
  11. New Jersey: Required Workplace Postings Receive an Update
  12. Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

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Massachusetts: Paid Family and Medical Leave Deadlines Extended and Notices Issued

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All Employers with MA Employees

EFFECTIVE

May 1, 2019

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In July 2018, Massachusetts signed H. 4640 – also called the “grand bargain” – into law, which included implementation of a state-mandated paid family and medical leave program starting January 1, 2021.  To prepare for rollout of this program, employers were required to provide their workforce notice of the new leave by May 31, 2019.  The Massachusetts Department of Paid Family and Medical Leave (PFML) recently extended two pending deadlines: (1) written notice to employees of their rights under the PFML must be provided by June 30, 2019; and (2) companies can file an application for a private plan exemption up to September 20, 2019. The PFML program is funded through an employee payroll tax with a supplementary amount paid by employers.

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April Updates

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This Short List addresses the following topics:
  1. OFCCP: Corporate Scheduling Announcement List Published for Federal Contractors
  2. VEVRAA Hiring Benchmark Lowered for Affirmative Action Plans
  3. Fifth Circuit: Independent Contractor Classification in Oilfield Industry Re-visited
  4. California: NEW Posting Requirement as of April 1, 2019
  5. California: Required Employee Pamphlets Updated
  6. California: Employers Are Liable for Wage and Hour Claims Without Accurate Time Records
  7. Reminder: San Francisco 2018 Employer Reporting Deadline is April 30, 2019
  8. San Francisco, CA: Minimum Wage to Increase July 1, 2019
  9. Massachusetts: State and Federal Overtime Exemptions are Not Identical
  10. Michigan: Paid Sick Leave FAQ’s and Poster Released
  11. New York: 24-Hour Home Care Pay Decided by Court of Appeal
  12. Oklahoma: Medical Marijuana Accommodations Clarified
  13. South Carolina: Labs Liable to Workers for False Positive Drug Tests

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Massachusetts: Significant New Limitations on Noncompete Agreements

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All Employers with MA Employees

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October 1, 2018

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Governor Baker recently signed “An Act Relative to Economic Development in the Commonwealth” that significantly changes the way Massachusetts employers may use noncompete agreements. The following are key changes to be aware of.

September Updates

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This Short List addresses the following topics:
  1. The DOL Created a New Department to Support Employer Compliance
  2. OFCCP Staff Must Account for Federal Contractors’ Religious Freedoms
  3. Federal Contractor Minimum Wage Increase for 2019
  4. Sixth Circuit: FLSA Does Not Invalidate Arbitration Agreements
  5. Eighth Circuit: USERRA Still Protects Employees Who Don’t Have Guaranteed Working Hours
  6. Ninth Circuit: Employers Can Prohibit Future Employment With Their Company
  7. California: Update to EDD Workplace Posting DE 1857A
  8. Massachusetts: Railway Unemployment Insurance Act Preempts Statewide Sick Leave
  9. New Jersey: New Bill Expands Ability to Claim Unemployment Insurance Benefits
  10. New Jersey: State and Federal Authorities Pledge Stronger Enforcement Against Misclassification
  11. New York City, NY: Anti-Sexual Harassment Poster and Fact Sheet Now Available
  12. South Carolina: Pregnancy Accommodations Poster Now Available
  13. Austin, Texas: The City’s Paid Sick Leave is On Hold – For Now
  14. Seattle, WA: New Employer Obligations for Domestic Workers

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Massachusetts: Updates to Minimum Wage, Premium Pay, and Paid Family and Medical Leave

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all Employers with MA Employees

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January 1, 2019 and January 1, 2021

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Governor Baker recently signed H.4640 into law. The “grand bargain” increases minimum wage, eliminates premium pay, and implements paid Family and Medical Leave.

Minimum Wage and Premium Pay Updates

By 2023, minimum wage will increase to $15.00 per hour and to $6.75 per hour for tipped employees. Minimum wage will next increase to $12.00 per hour on January 1, 2019. Also by 2023, premium pay will be eliminated. Starting January 1, 2019, employers’ requirement to pay retail employees time-and-a-half for working Sundays and certain holidays will decrease to 1.4 times the regular rate, and subsequently decreasing each year until it is eliminated entirely.

Paid Family and Medical Leave

Beginning January 1, 2021, employers will be required to provide current employees, employees who have been separated for 26 weeks or less, and self-employed independent contractors (where the independent contractors comprise more than 50 percent of the workforce), with 12 weeks of paid family leave and 20 weeks for paid medical leave (with a maximum combined benefit of 26 weeks per year) (1) to provide care for the employee or a family member due to their or their family member’s serious health condition; (2) to bond with a newborn, foster, or adopted child within the first 12 months of birth, placement, or adoption; (3) for needs arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the u.s. armed forces; or (4) to care for a family member who is a covered service member.

Employees are required to provide 30 days’ advance notice of the need for leave, or as soon as practicable if the delay in notice is beyond the employee’s control. If the employer does not provide the required new hire notice (discussed below), the employee’s notice requirement is waived.

Once leave commences, payment of benefits is subject to a one-week delay during which time employees may use other paid leave, such as paid sick leave or vacation. However, employers may not require employees to exhaust other forms of paid time off prior to or in connection with taking paid family and medical leave. Leave may be taken intermittently, except for child bonding unless otherwise agreed to by the employer; this restriction does not apply to former employees or self-employed independent contractors. Leave runs concurrently with the federal Family and Medical Leave Act and the Massachusetts Parental Leave Act.

Employees who take leave must be returned to their same or equivalent position upon return, and employers must maintain employee benefits while on leave. Employers must post a required notice in English and any other language primarily spoken by 5 or more employees, and notify employees of their rights within 30 days of hire. Employers are required to obtain a signed acknowledgment of receipt of the notice from all employees, or a signed statement of refusal to sign the acknowledgment. Employers must also provide a required notice to self-employed independent contractors at the time they are contracted, describing how they may obtain paid family and medical leave benefits.

Employers are subject to strict anti-retaliation provisions for employees who use paid family and medical leave or file or participate in a claim based on such leave. Specifically, there is a rebuttable presumption of retaliation if any adverse action is taken against an employee’s terms and conditions of employment during leave or within six months of the employee’s return from leave. To rebut the presumption, an employer must be able to show with “clear and convincing” evidence that it would have taken the same action in the absence of the employee taking leave.

Beginning July 1, 2019, employers with 25 or more employees will begin paying 0.63% of each employee’s wages into a state trust fund for employer contributions.  Employers are required to pay 60% of the contribution for family leave, and employees must contribute 40%; however, employers are not required to pay any portion of the contribution for medical leave and may deduct the full amount from employees’ wages. Employers with less than 25 employees are exempt from paying the employer portion. Contributions are capped at the amount set by the Social Security Administration for contributions to the Old-Age, Survivors and Disability Insurance programs (currently $128,400). Employers have the option to provide equivalent benefits through an approved private plan or self-insurance.

Action Items

  1. Prepare to update payroll processes for increased minimum wage and decreased premium pay, and for paid family and medical leave deductions.
  2. Have employee handbooks updated to reflect paid family and medical leave requirements.
  3. Post required paid family and medical leave notice once available, and update minimum wage posters January 1, 2019.
  4. Implement required new hire notice and acknowledgment, and independent contractor notice.
  5. Review any disciplinary measures, taken during leave or in the six months following paid family and medical leave, with legal counsel to minimize retaliation claims.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Massachusetts: Updates to the State’s Ban-the-Box Rules

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All Employers of MA Employees

EFFECTIVE

October 13, 2018

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The Governor recently signed SB 2371 amending the Criminal Offender Record Information Reform Act to increase restrictions on employee criminal history inquiries. Specifically, employers cannot inquire into convictions for misdemeanors where the date of conviction occurred three or more years (down from the current five year limitation) from the date of the employment application, unless there was an intervening conviction. Additionally, employers may not inquire about criminal records that have been sealed or expunged.

Importantly, employers who seek information about prior arrests or convictions of applicants must include the following statement on employment applications:

“An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions.  An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

Action Items

  1. Update employment applications to include the new required language.
  2. Have background check procedures reviewed and revised consistent with the Act’s amendments.
  3. Have hiring personnel trained on updated requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Massachusetts: Attorney General Issues Guidance on Upcoming Statewide Equal Pay Law

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Employers with MA Employees

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July 1, 2018

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On March 1, 2018, the Massachusetts Office of the Attorney General issued guidance on the Act to Establish Pay Equity (the “Act”).  Originally signed in 2016 and soon-to-be effective on July 1, 2018, the law includes several significant new provisions designed to improve pay equity between employees of different genders. The Attorney General’s Guidance provides further clarity on how the Act applies to employers. Several key provisions are summarized below.

Massachusetts: Sick Pay is Not Considered Wages Under State Law

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Employers with MA Employees

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January 29, 2018

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In Tze-Kit v. Massachusetts Port Authority, the Massachusetts Supreme Judicial Court stated that sick pay is not considered wages under the Massachusetts Payment of Wages Law.  Employers are not required to pay out accrued, unused sick pay as part of an employee’s final pay upon separation of employment.