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Massachusetts: New Guidance for Calculating Wages for Tipped Employees

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All Employers of MA Tipped Employees

EFFECTIVE

January 1, 2019

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The “Grand Bargain” added a clause to the service rate statute stating that an employer shall calculate the “amount required by clause (2) at the completion of each shift worked by the employee.” The Massachusetts Attorney General’s office recently released additional guidance on what this means.

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February Updates

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This Short List addresses the following topics:
  1. REMINDER: Post Form 300A in the Workplace
  2. Upcoming Changes to H1-B Applications
  3. Recent OSHA Updates
  4. Department of Labor Penalty Increases
  5. California: Human Trafficking Required Posting Available; DE 2588 Form Updated
  6. California: Labor Commissioner Publishes Blacklisted Port Trucking Companies
  7. Daly City, CA: Minimum Wage Increases on February 13rd
  8. Fremont, CA: Minimum Wage Increases to $13.50 per Hour and Beyond
  9. Michigan: New Employee Protections for State Contractors and Workers
  10. Missouri: Delegation Clauses in Arbitration Agreements Must Be Enforced
  11. New Mexico: State Fair Pay for Women Act Applies to Public and Private Employers
  12. New York: Paid Family Leave Benefit Increases
  13. Ohio: Franchisors are Not Joint Employers
  14. Pennsylvania: Employers Must Protect Electronic Employee Information
  15. Philadelphia, PA: Minimum Wage Increases for City Workers and Contractors

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August Updates

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This Short List addresses the following topics:
  1. Coming Soon: Visa Denial or Expiration Will Mean Deportation for Foreign Nationals
  2. New Guidance for Determining Whether Registries are Employers of Nurses and Caregivers
  3. Ninth Circuit: No Meal Period Violations if Employees Volunteer to Stay Onsite for Discounted Meals
  4. California: Court States Neutral 15-Minute Rounding Policies Lawful
  5. California: New Law Protects Members of the Armed Forces While in Uniform
  6. California: New Safety Information for Housekeeping Employees
  7. Delaware: New Minimum Wage Increases and Exceptions
  8. New York, NY: New Mandatory Posting and Guidance Issued for Fair Workweek Law
  9. Pennsylvania: Minimum Wage for State Employees Increases to $12/Hour
  10. South Carolina: Required Pregnancy Accommodations Act Poster is Now Available

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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

July Updates

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This Short List addresses the following topics:
  1. California: Janitorial Employers Must Register with Labor Commissioner
  2. New Hampshire Adds Gender Identity as a Protected Category
  3. North Carolina Increases Hiring Opportunities for Individuals with a Criminal History
  4. Texas: 5th Circuit Requires Employer Signature on Mutual Arbitration Agreements
  5. Vermont Issues New Guidance on Marijuana in the Workplace
  6. Washington, D.C. Approves Increased Minimum Wage for Tipped Workers
  7. Washington Governor Fights SCOTUS Arbitration Class Action Waiver Ruling

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San Francisco, CA: Important Dates for San Francisco’s Minimum Wage, Sick Leave and Pay Parity Ordinances

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All Employers with San Francisco Employees

EFFECTIVE

June 7 and July 1, 2018

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San Francisco is home to a bevy of local ordinances controlling minimum wage, paid sick leave, and pay parity, among others.  Though these ordinances have been in place for some time, each has new guidance or important updates that are effective within the next two months.

May Updates

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This Short List addresses the following topics:
  1. EEO-1 Deadline Delayed to June 1, 2018
  2. IRS Issues Guidance on Family and Medical Leave Tax Credit
  3. Veteran Hiring Benchmark Lowered for 2018
  4. IRS Rolls Back 2018 HSA Contribution Limit Change
  5. U.S. DOL Launches Payroll Audit Pilot Program
  6. U.S. Supreme Court Settles FLSA Status of Car Dealership Service Advisors
  7. California: Staffing Agencies Need Not Police Meal Periods
  8. Emeryville, California: Minimum Wage Update
  9. Michigan: Local Governments Prohibited from Limiting Employer Interview Inquiries
  10. Nevada: Minimum Wage Will Not Change in 2018
  11. Pennsylvania: State Supreme Court Says “Actual Damages” Include Non-Economic Damages Under Whistleblower Law
  12. West Virginia: Employers May Not Prohibit Firearm Storage in Personal Vehicles

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Santa Monica, CA: Updates to Minimum Wage and Paid Sick Leave Ordinance

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All Employers with Santa Monica, CA Employees

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January 10, 2018

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Although Santa Monica employers have been required to provide paid sick leave since January 2017, the City of Santa Monica has recently amended its minimum wage and paid sick leave ordinance (the “Ordinance”) to revise some provisions and provide further clarity on definitions and administration of paid sick leave and minimum wage. Key highlights include:

October Updates

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This Short List addresses the following topics:
  1. U.S Federal Contractor Updates
  2. Alabama: City of Birmingham Approves Nondiscrimination Ordinance
  3. California: Cal/OSHA Says Federal OSHA Reporting Requirements do not Apply to CA Employers
  4. Illinois: Amendments to the Illinois Human Rights Act Codify Religious Garb Protections
  5. Kentucky: Supreme Court Permits Wage and Hour Class Actions
  6. New York: 24-Hour Non-Residential Home Care Attendants Must be Paid for Sleep and Meal Periods
  7. Texas: New Leave Protection for Foster Parents and Preference for Veterans in Employment
  8. Wisconsin: Court of Appeals Upholds “Right to Work” Law

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September Updates

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This Short List addresses the following topics:
  1. The Recent Federal Overtime Exemption Rule is Diminishing
  2. NLRB: More Examples of What is or isn’t Protected Concerted Activities on Facebook
  3. EEOC Must Reconsider Wellness Regulations
  4. Seventh Circuit: EEOC May Investigate Despite Right-to-Sue Letter and Issue of Judgment
  5. Arizona, Maryland, Wyoming:  Now Part of the E-Verify RIDE Program
  6. Berkeley, CA: Minimum Wage Increase, Paid Sick Leave, and Work Schedule Rules Will Soon Be In Effect
  7. San Diego, CA:  Equal Pay Bill for City Contractors and Consultants
  8. Santa Clara, CA: Santa Clara City’s Minimum Wage to Increase in 2018
  9. Connecticut: Anti-Discrimination Protections Expanded for Veterans
  10. Georgia: Amended Law Now Preempts Predictive Scheduling Ordinances
  11. New Jersey:  Anti-Discrimination Protections for Military and Veterans Expanded
  12. New York: Guidance on Tax Treatment of PFL Contributions and Benefits now Available
  13. Nevada: Pregnant Workers’ Fairness Act Poster Now Available
  14. North Carolina:  Fair Classification Act Emphasizes State Focus on Proper Employee Classification
  15. Texas: Hurricane Harvey Relief for Employees
  16. Washington:  New Biometric Information Protection law

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