In January 2021, during the final days of the Trump Administration, the Department of Labor issued a new rule regarding the classification of employees and independent contractors for purposes of the federal Fair Labor Standards Act.  This rule, viewed by many as being more “employer friendly” than previous DOL policies, applies an “economic reality” test that asks whether “the individual is, as a matter of economic reality, in business for him or herself.”  The test considers five factors, but emphasizes two in particular: the nature and degree of the worker’s control over the work, and the opportunity for profit or loss.  The remaining factors are subsidiary, and are only to be considered if classification is not clear after applying the first two.

Almost immediately, the Biden Administration took steps to delay, and then rescind the Trump era rule.  Earlier this year, a federal court blocked these efforts, and, for now, the 2021 Independent Contractor Rule remains in effect.  All of this back and forth has called into question the standards for determining employee classification questions under the FLSA and has caused significant confusion for employers.

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On July 26, 2022, Massachusetts Governor Charlie Baker signed into law the Creating a Respectful and Open World for Natural Hair (CROWN) Act, which prohibits discrimination based on natural and protective hairstyles in the workplace, public schools, and places of public accommodation (such as hotels and restaurants). The Act amends Massachusetts’ existing anti-discrimination laws, adding “hair texture” and “hair type” to the list of already protected categories (e.g., race, color, religious creed, national origin, sex, gender identity, and sexual orientation).

Hairstyles protected under the Act include, but are not limited to, “braids, locks, twists, Bantu knots and other formations.” The Act authorizes the Massachusetts Commission Against Discrimination and Department of Elementary and Secondary Education to promulgate rules and regulations to enforce the new protections. The Act will take effect on October 24, 2022.

The law is modeled on the National CROWN Act, a nation-wide effort organized by Dove, National Urban League, Color Of Change, and Western Center on Law & Poverty to advocate for hair discrimination protections at both the state and federal level. In addition to Massachusetts, seventeen other states have passed similar laws prohibiting race-based hair discrimination within the past three years, including Maine, New York, and Connecticut.

Violations of the CROWN Act could lead to compensatory and punitive damages and attorneys’ fees.

To ensure compliance with the new law, Massachusetts employers, schools (both public and independent), and other businesses holding themselves open to the public should review their handbooks and existing equal employment opportunity and anti-discrimination policies, in addition to policies related to dress codes and grooming standards, and determine whether updates are necessary. Furthermore, such entities should consider examining hiring and admissions practices as well as additional training for their employees regarding the requirements of the new law.

Should your business need any assistance with complying with the CROWN Act, please reach out to one of our experienced employment and education attorneys.

Many business leaders and human resources professionals believe that cyber security is the responsibility of their information technology staff and managed services provider. However, ensuring that employees and their families have appropriate cyber security protection is an employee benefit that benefits employers as well.

Mistakes, lack of awareness, and general vulnerability of employees remains the most significant cyber security risk for most employers. Simply training employees about cyber threats typically fails to reduce that risk sufficiently. To have a truly cyber mature workforce, employers need to engage employees in cyber security. Teaching employees about the threats to themselves and their families, and making personal protection services available to them, is a much better method to engage employees in cyber security.

Training. Cyber security training is not most people’s idea of a good time. However, employees sit up and take notice when trainers talk to them about the prevalence and severity of the cyber threats to themselves personally, including their identities, credit files, financial accounts, personal devices, and home networks. Additionally, explaining that their aging parents and children face these same threats never fails to get employees meaningfully engaged. Employers can then translate that personal engagement into an increased awareness and commitment to the cyber security policies and practices that protect the business.

The following are a few training opportunities that typically motivate employees: (a) taking control of your credit bureau accounts, extinguishing fraudulent or unnecessary credit, and freezing or locking your credit; (b) obtaining identity, credit, and financial crime protection for yourself and your family; (c) ensuring that your personal financial accounts are secure from theft; (d) hardening your home network and online accounts; and (e) ensuring the online safety of yourself and your family members.

Identity, Credit and Financial Crime Protection. Employers seeking a deeper and longer-lasting engagement from employees also offer certain personal protection services as an employee benefit. By doing so, employers demonstrate that they have the same level of commitment to their employees’ personal cyber welfare as they are asking from those employees with respect to the cyber security of the business.

These benefits typically include either a fully or partially paid subscription to a third-party service that monitors the credit bureaus, Internet, dark web, and other online resources for theft or misuse of the identity of the employee and his or her family members, and fraud specialists to restore an individual’s credit and identity in the event of theft or misuse. Such a subscription also can include reimbursement for funds stolen as a result of cyber scams.

Employers are increasingly finding that these services are being offered by their existing employee benefits providers as extensions of other benefits, such as health insurance. Employers also can secure subscription services directly from the third-party providers, typically at discounted rates for their employee populations.

Personal Accounts and Residential Networks. Employers also benefit from making certain other safeguards available to help employees protect their home networks and their personal email, social media, financial, and other online accounts. The work-from-home model necessitated by the pandemic (and likely to remain in some form permanently) highlighted the threats to employers of employees accessing business systems from insecure residential and public Wi-Fi networks. Likewise, the insecurity of personal accounts are common points of entry for hackers to exploit to access business systems through employee devices.

To mitigate these risks, employers are helping employees with residential firewalls, personal virtual private networks (VPNs), and password management applications for themselves and their families. These measures are becoming increasingly available through the subscriptions services discussed above. Additionally, many employers are realizing that these safeguards are particularly important for business owners, executives, and other management employees who have remote access to financial, personnel, and other highly sensitive information.

For a business to meaningfully reduce its vulnerability to cyber attack, it must truly engage its employee population in cyber security. One of the most effective techniques to do so is to teach and empower them to protect themselves and their families, then translate that engagement into a heightened awareness and mutual commitment to protect the business as well.

New guidance narrows employers’ ability to screen employees.

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance and this article summarizes the key topics that employers should understand.

Return to Work Testing and Documentation

Under the Americans with Disabilities Act (ADA), any medical exam that an employer requires of an employee must be “job-related and consistent with business necessity.” Required COVID testing for employees is considered a “medical exam” and at the onset of the pandemic, the EEOC advised that COVID testing was a business necessity for all employees as an approved method for curbing transmission.

The July 12 guidance narrows what was a broad screening approach and now requires employers to assess whether screening a particular employee is consistent with the prior medical exam standard. The EEOC cautions employers to check with the public health authorities on screening guidelines, which will change depending on the level of virus detected in a particular region. Other factors that implicate “job-related” and “business necessity” include an employee’s vaccine status, the transmissibility of the current variant, contact between others in the workplace, and the impact of a COVID-positive employee on overall operations. In addition, the EEOC has updated its guidance to permit employees to provide an email from a medical provider or time-stamped documentation from a clinic indicating that the employee is at no risk for transmission, given that obtaining a doctor’s note can take a few days.

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With the end of the 2022 second quarter and inflation at a record high in more than four decades, some employers may be forced to take measures to reduce overall operational expenses. Reducing payroll costs is one of the cost-savings measures available to employers in these circumstances.  Unfortunately, however, this often results in the loss of employment for employees by way of a reduction in force, or a “RIF.”  If a company must move forward with such a process, it must be carefully planned and executed in order to minimize the risk of employment law claims.  Below is an overview of factors business owners and human resources professionals should consider when implementing reductions in staff, schedules or compensation.

Continue Reading Employee Reductions in Force, Furloughs and Other Cost-Savings Measures

I recently wrote an article for New Hampshire Business Review on “What To Do if an OSHA Violation Arrives.”

Accidents happen.  It can happen to even the most safety-minded employers.  An employee falls from a ladder and breaks a bone.  A worker is injured on a piece of machinery.  Someone becomes ill after inhaling chemical fumes.  Any of these situations, and countless others, can lead to an OSHA inspector visiting your workplace.  Most often, when such an inspection follows a workplace injury, OSHA will most likely find at least one violation of one or more safety standards.  When that happens, OSHA will issue a Citation and Notification of Penalty.

The Citation will identify the specific violations found, with references to the particular OSHA standards at issue, along with a deadline for abating the violation, and the proposed penalty.

The first thing that employers must do when they receive an OSHA citation is to post a copy of the citation at or near the place where each violation occurred.  The posting requirement is meant to make employees aware that they may be exposed to hazards in the workplace.  OSHA regulations require that the Citation remain posted for three working days or until the violation is corrected, whichever is longer.

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The Internal Revenue Service announced last week that it was piloting a pre-examination retirement plan compliance program beginning this month. This program involves the IRS notifying an employer by letter in advance that the employer’s retirement plan was selected for an upcoming examination.

The letter gives the employer a 90-day window to review its retirement plan’s document and operations to determine if they meet all current tax law requirements. If the employer does not respond within 90 days, the IRS will contact the employer to schedule an examination.

Continue Reading IRS Announces New Retirement Plan Pre-Examination Program

The Massachusetts Wage Act, G.L. c. 149, §148 (the “Wage Act”) requires employers to pay employees discharged from employment all wages owed on the date of discharge.  Employees who resign from their employment must be paid all wages on the next regular payday following the end of their employment.  This requirement to pay all wages owed to an employee upon separation of employment includes an obligation to pay all regular wages, as well as an obligation to pay the employee for any accrued, unused vacation and certain commission payments.  Failure to comply with the Wage Act’s strict time deadlines will result in mandatory awards against the employer of treble damages and attorneys’ fees.  Certain officers and agents having management of the company may also face individual liability for violations.

Continue Reading Massachusetts Employers Beware! Treble Damages Are Available When Employers Are Even One Day Late with Final Wage Payment to Employee

The Massachusetts law providing up to forty hours of paid sick leave to employees for COVID-related absences will expire on March 15, 2022 according to a notice issued by Executive Office for Administration and Finance on Monday.  The law, which was enacted in May 2021, was meant to be effective until April 1, 2022, or the exhaustion of a fund established by the legislature to reimburse employers for the paid leave, whichever occurred first.

Continue Reading Massachusetts Emergency Paid Sick Leave Will End March 15, 2022

Earlier this month, Congress passed a bill that will effectively end mandatory arbitration in workplace sexual assault and harassment cases, providing employees with a choice of proceeding with their claims in either court or via arbitration.  The legislation, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“Act”) was passed by a bi-partisan majority in the House and Senate and is expected to be signed into law by President Biden.  This law is significant as there are an estimated 60,000,000 workers in the United States who are subject to arbitration clauses, many of whom do not even realize it.

Continue Reading Congress Ends Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims