Foley Hoag LLP

SUMMARY

On August 9, 2010, Massachusetts Governor Patrick signed into law an amendment to the state's workers' compensation statute which allows individuals to sue employers for violations of the statute. More specifically, the new law provides an incentive for individuals to seek recovery of any unpaid insurance premiums that are due for workers who are or who should be covered by the employer's workers' compensation insurance plan, including individuals misclassified as independent contractors. The law also permits a private attorney general's action if an employer fails to maintain any workers' compensation insurance. [more...]

SUMMARY

Buried in the newly-enacted Massachusetts Economic Development Reorganization law is a significant change to the state law regarding employee personnel records. The new law requires employers to give notice to employees when certain information is added to their personnel records. Employers must notify an employee within ten days of adding any information that has been used or may be used in the future to negatively affect “the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will by subject to disciplinary action.” [more...]

SUMMARY

Last Friday, President Obama signed into law the Emergency Border Security Supplemental Appropriations Act of 2010. The focus of this new law is an appropriation of more than $600 million to address immigration enforcement issues on the southwest border, including Arizona and Texas. However, at the same time, the law also significantly increases the fees for the H-1B and L visa programs for employers that are heavy users of those programs. [more...]

SUMMARY

On August 6, 2010, Massachusetts Governor Patrick signed into law the “CORI Reform Bill,” which significantly affects employers’ access to and use of criminal record information during the hiring process. The law changes the state’s Criminal Offender Recommendation Information (CORI) system and includes new rules on how and when employers may obtain and use criminal records. The following is a summary of those changes specifically directed at employers.

SUMMARY

On Monday, the Supreme Judicial Court held that the protections of the Massachusetts Maternity Leave Act ("MMLA") are limited to a period of eight weeks. The MMLA provides that a female employee "who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth ... shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave." In Global NAPs, Inc. v. Awiszus, the Court explained that a female employee who was terminated while on leave did not have a claim under the statute because her maternity leave exceeded eight weeks.

SUMMARY

Last Thursday, the United States Supreme Court held in New Process Steel v. National Labor Relations Board that the National Labor Relations Board was not authorized to act when it had only two sitting members. The holding calls into question the almost 600 decisions issued by the two-member Board from January 2008 through March 2010.

SUMMARY

On May 20, 2010, the Department of Labor’s Office of Labor-Management Standards (“OLMS”) issued a final rule requiring nearly all federal contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (“NLRA”). The new rule implements President Obama’s Executive Order 13496, which requires federal departments and agencies to include a new provision in nearly all government contracts about notifying contractors’ employees of their rights under federal labor law.   [continues... ]

SUMMARY

This week, the U.S. Supreme Court unanimously held that a class of plaintiffs could assert a disparate impact claim based upon a hiring process even though the plaintiffs did not challenge the adoption of that process within the 300-day statute of limitations period. The Court ruled that the limitations period began anew each time the results of that process were used to choose candidates for hire.   [continues... ]

SUMMARY

Contents

1. Exposure to Liability in the Hiring Process

2. Failure to Adequately Document Terms and Conditions of Employment

3. Misclassification Issues
    - Employee or Independent Contractor
    - Exempt or Non-exempt

4. Failure to Comply with Wage Payment Laws

5. Inadequate Protection of Intellectual Property

SUMMARY

Last week, President Obama signed into law the Continuing Extension Act of 2010, which among other provisions, provides for another extension of the federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009 (“ARRA”). Under ARRA, employees who were involuntarily terminated between September 1, 2008 and December 31, 2009 are entitled to a government subsidy of 65% of the premium cost for health care continuation coverage under COBRA.

SUMMARY

As we have previously reported, Massachusetts wage and hour laws strongly disfavor the classification of individuals as independent contractors rather than employees. Massachusetts General Laws chapter 149, § 148B presumes that workers are employees, unless the alleged employer satisfies a strict, three-pronged test: (1) the individual is free from control and direction in connection with the performance of a service; (2) the individual performs a service that is outside the usual course of the employer’s business; and (3) the individual is customarily engaged in an independently established trade or profession. A recent decision by the U.S. District Court for the District of Massachusetts is a reminder that Massachusetts courts will scrutinize the classification of individuals as independent contractors. In Awuah v. Coverall North America, Inc., the federal court held that a group of franchisees were misclassified as independent contractors under Massachusetts law.

SUMMARY

The Patient Protection and Affordable Care Act, the landmark health care reform law, includes an amendment to the Fair Labor Standards Act regarding breaks for nursing mothers. Under the new law, employers must provide “reasonable” unpaid breaks for nursing employees to express breast milk. Employers also must furnish a private location, other than a bathroom, for these breaks.

SUMMARY

On April 1, 2010, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2010. New H-1B petitions are subject to an annual limit of 65,000 new H-1B visas, plus an additional 20,000 visas for foreign workers with an advanced degree from a U.S. academic institution.

SUMMARY

Last night, President Obama signed into law the Temporary Extension Act of 2010, which among other provisions, includes a further extension of the federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009 (“ARRA”). Under ARRA, employees who were involuntarily terminated between September 1, 2008 and December 31, 2009 are entitled to a government subsidy of 65% of the premium cost for health care continuation coverage under COBRA for a period of nine months.

SUMMARY

In the first appellate-level opinion interpreting the Lilly Ledbetter Fair Pay Act of 2009, the Court of Appeals for the District of Columbia Circuit held in Schuler v. PriceWaterhouseCoopers, LLC, that an employer’s denial of a promotion was not a “discriminatory compensation decision or other practice,” within the meaning of the statute. In that case, the plaintiff acknowledged that his claim was untimely prior to the enactment of the Ledbetter Act but argued that the new law extended the statute of limitations and thus revived his claim.

SUMMARY

Businesses that have not adopted written information security programs to comply with the Massachusetts information security regulations have little more than a week to wrap up their compliance efforts. Monday, March 1, 2010 is the deadline set by the Massachusetts Office of Consumer Affairs and Business Regulation (OCABR) for businesses around the world that handle the personal information of Massachusetts residents to comply with the strict Massachusetts regulations.

SUMMARY

President Obama’s proposed federal budget for the 2011 fiscal year highlights one of its key enforcement priorities - to fight the misclassification of employees as independent contractors. The proposed budget for the Department of Labor includes a $25 million “Misclassification Initiative”, which is intended to assist the Department in identifying and reducing employee misclassification. If passed, the initiative would allow the DOL to hire additional investigators and enforcement personnel and would create competitive grants to encourage the states to address the issue.

SUMMARY

On December 21, 2009, President Barack Obama signed into law an extension of the federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009 (“ARRA”).

SUMMARY

On Friday, October 30, 2009, just two days before the Federal Trade Commission (FTC) was set to begin enforcement of federal Red Flags Rules, the FTC announced that it was giving businesses seven additional months, until June 1, 2010, to comply with the new identity theft regulations. (more...)

SUMMARY

A recent decision by the Court of the Appeals for the First Circuit is a reminder that employers should carefully and thoroughly articulate their reasons for terminating an employee at the time of the termination. In Velez v. Thermo King de Puerto Rico, Inc., the Court reversed a district court’s grant of summary judgment to the employer in an age discrimination case because, in its view, the employer had changed its explanation for the plaintiff’s termination.