Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Employment Law and Litigation

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The New Massachusetts Pregnant Workers Fairness Act

Tuesday, October 03, 2017

Pierce & Mandell, P.C.By: Lena J. Finnerty

On July 27, 2017, Governor Baker signed into law the Massachusetts Pregnant Workers Fairness Act (the “MPWFA”) which extends the protections afforded pregnant workers in Massachusetts beyond those currently provided under federal law. The Act, which will go into effect April 1, 2018, will amend the current anti-discrimination statute in Massachusetts, to prohibit workplace and hiring discrimination related to pregnancy, nursing, and other pregnancy-related conditions.

Current federal law protects pregnant and new mothers from discrimination in the workplace under the Americans with Disabilities Act and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act. If an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the employer must treat that employee in the same way it treats other temporarily disabled employees. However, the ADA does not consider pregnancy itself a “disability.” Rather, only conditions or impairments resulting from pregnancy may be considered covered disabilities.

Massachusetts has expanded these protections under the new MPWFA to provide all pregnant and nursing employees with reasonable accommodations without having to establish that they have a covered medical condition. The language of the MPWFA will be codified with the current Massachusetts anti-discrimination statute, M.G.L. c. 151B, stating that it is an unlawful practice for employers to discriminate based on “pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child . . .”, and to deny a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy, unless the employer can show that the accommodation would impose an undue hardship that requires significant difficulty or expense on the employer’s program, enterprise or business.

Requirements under the MPWFA

(1.) Engage in the Interactive Process

The employer and employee must engage in a timely and good-faith interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of their job.

(2.) Reasonable Accommodation

Examples of reasonable accommodation under the MPWFA include:

  • More frequent or longer paid or unpaid breaks;
  • Time off to recover from childbirth with or without pay;
  • Acquisition or modification of equipment or seating;
  • Temporary transfer to a less strenuous or hazardous position; and
  • Private non-bathroom space for expressing breast milk.

(3.) Documentation

An employer may request documentation from an appropriate health care or rehabilitation professional about the need for a reasonable accommodation, unless the request is for the following pregnancy accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.

(4.) Notice

Covered employers must provide written notice to all employees of their rights under the MPWFA in the form of a handbook, pamphlet, or other written means, including the right to be free from discrimination based on pregnancy and related conditions, and the right to reasonable accommodations. Written notice must be provided to:

  • New employees at or prior to the start of employment;
  • Existing employees by April 1, 2018; and
  • Within ten (10) days of the date an employee informs the employer of their pregnancy or related condition.

Who is Covered

  • Employers with six (6) or more employees; and
  • All employees, regardless of sex or gender.

What Employers Should do Now

  • Provide written notice to all current employees by April 1, 2018; to new hires upon the date of hire; and within ten (10) days to any employee who informs employer of pregnancy or related condition;
  • Review and amend employee handbooks and policies to reflect compliance with requirements of MPWFA;
  • Train human resources personnel, managers, and staff about the requirements of the MPWFA; and
  • Consult counsel with any legal compliance questions regarding the MPWFA.

If you are an employer with questions on how to best comply with the new MPWFA and other statutory obligations, or an employee that believes their employment rights have been violated, contact the experienced employment law attorneys at Pierce & Mandell.

The Wage Act – Are Commissions Considered Wages?

Tuesday, July 18, 2017

Pierce & Mandell, P.C., Boston, MABy Curtis Dooling

The Massachusetts Wage Act, G. L. c. 149, § 148, requires that employers pay their employees’ wages within six days of the end of the applicable pay period. The law includes harsh penalties for failure to pay wages, including the mandatory award of triple damages and attorneys’ fees. An employer that violates the Wage Act can also be subject to criminal penalties and corporate officers and directors can be held personally liable for Wage Act violations.

While the payment of hourly wages and salaries is generally straightforward, the payment of commissions can be decidedly less so. Employers often refuse to pay commissions to employees upon termination, even when the employee has earned the commission.

The Wage Act applies to commissions and the failure to pay earned commissions subjects employers to the same harsh penalties as the failure to pay hourly wages. The Wage Act states, in relevant part,

This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.

In other words, if the commission can be calculated and is due under the terms of an employment contract, the employer must pay it, or be subject to the penalties set forth in the Wage Act.

Even if the commissions are discretionary, that doesn’t necessarily mean they don’t fall under the guise of the Wage Act. Even when employers have wide discretion in making calculations and determinations as to the amount of commissions, an employee can still bring a Wage Act claim and can be awarded damages if the employee can show that the commissions were due and payable and definitively determined.

Pierce & Mandell’s litigation attorneys are well-versed in all aspects of the Wage Act and can guide both employers and employees through the process of filing and defending a Wage Act claim.

Changes to FLSA, if unimpeded, may have large repercussions for employers

Monday, December 05, 2016

Pierce and Mandell, PC, Boston, MABy Karen Rabinovici

The Fair Labor Standards Act (FLSA), which applies to all employees employed in the private sector as well as to government employees, establishes the minimum wage, overtime pay requirements, recordkeeping requirements, and child labor standards.  It was the FLSA that first introduced the forty-hour workweek, the concept of minimum wage, and time and a half for overtime work, along with prohibiting “oppressive child labor,” something that was common in 1938 when the FLSA was first drafted.

The Department of Labor has long tried to make changes to the FLSA’s overtime regulations, and the fruits of its labor may be just around the corner, and were set to go into effect December 1, 2016.  The changes, however, are not without opposition, and the fate of the changes is currently on hold.  The changes, should they go forward, may impact dental and medical practice employers in particular, who often find themselves in murky waters when classifying employees as exempt or non-exempt.

The Changes

In determining which employees are exempt from receiving overtime pay and which employees are not exempt, the FLSA takes earned compensation into account.  Under the old rule, if executive, administrative, and professional employees earned less than $455 per week, or $23,660 per year, such employees were not exempt from receiving overtime pay.  The new rule changes those benchmarks to $913 per week, or $47,476 per year, increasing the number of non-exempt employees.  Additionally, under the old rules, employees who are exempt from receiving overtime pay under provisions relating to “highly compensated employees” must be paid $134,004 per year, up from $100,000, again increasing the number of non-exempt employees.

The new rule will prompt employers to make necessary changes to their classification of executive, administrative, and professional employees.  If an employee’s salary no longer meets the new minimum requirements, and another exemption does not apply, reclassification may be necessary, accompanied by overtime pay.  Alternatively, employers may increase salaries to maintain exemptions.

The Challenge

In an 11th hour plot twist, on November 22, 2016 the U.S. District Court in Sherman, Texas issued an order enjoining the Department of Labor from implementing the new rule.  Prior to this, 21 states filed an emergency motion for a preliminary injunction to stop the new rule, arguing that the Department of Labor has exceeded its authority in increasing the salary minimums for exempt employees.  Additionally, the fact that the changes do not take the nature of employee duties into account, which can often determine whether an employee is exempt or non-exempt, has been another argument of the new rule’s opponents.  A date for a full ruling by the Court has not yet been announced.  So, until the Court rules on the Department of Labor’s authority to implement such changes, employers do not need to comply with the new rule and can maintain the status quo.

Pierce & Mandell’s experienced employment law attorneys can guide employers and workers through the classification and employment process.  We encourage employers and workers alike to contact us to ensure that terms of employment are compliant with the relevant laws.

Small Businesses Fight Back Against PPACA Financial Burdens

Tuesday, July 28, 2015

By Karen Rabinovici

Small business owners who have decided to reimburse their employees’ health insurance premiums as a way of lowering the burdensome cost of directly providing health insurance are learning the meaning of the expression “no good deed goes unpunished.”

Faced with the expense of providing health insurance as required by the Patient Protection and Affordable Care Act (“PPACA”), some small business employers instead encouraged their employees to buy their own health insurance plans (either on or off the marketplace) and then reimbursed their employees for all or a portion of the premiums.

But what employers thought was a good-faith attempt to help meet the health insurance needs of employees at a lower cost to the business is instead being viewed as a violation of the PPACA and could cost employers far more money than providing a health insurance plan would have, as staggering penalties begin to add up.

The described reimbursement arrangement, also called employer payment plans, are considered under the PPACA to be part of a plan, fund, or other arrangement established or maintained for the purpose of providing medical care to employees. As such, these arrangements are considered group health plan coverage under the PPACA and are subject to the market reform provisions of the PPACA applicable to group health plans. Such arrangements cannot be integrated with individual market policies, and as such fail to comply with the PPACA market reforms. Therefore, reimbursement arrangements violate the PPACA.

This violation comes at a heavy financial penalty of up to $100.00 for each day such an arrangement is in place, per applicable employee. This can total $36,500 per year per employee.

Small businesses are not taking this sitting down. On Thursday July 23, 2015 small business owners, organized by the National Federation of Independent Business, took their case to Capitol Hill to lobby Congress to change this provision of the PPACA. Their argument is that the penalty punishes small businesses that cannot afford to provide employer-sponsored health insurance, but are still trying to help employees meet their health insurance needs through another method. Larger businesses have also expressed opposition to this provision of the PPACA.

The proposed legislation aimed at changing that provision is the Small Business Healthcare Relief Act, which enjoys bipartisan support in both the House and Senate where it has been introduced. In its current form, the Act allows employers with fewer than 50 employees to offer reimbursement arrangements without penalties. Those who support the Act believe that if President Obama truly desires, as stated, common-sense improvements to health care, then the Act should pass.

If the Act does not pass, small employers do have one other option. Although reimbursement arrangements are considered violations of the PPACA and are subject to heavy penalties, additional compensation arrangements are not. This alternative arrangement allows employers to provide additional compensation to employees that is intended to help meet health insurance needs. While employees have the option to use the additional compensation to help pay for health insurance premiums, employers cannot make such use a condition of the provision of additional compensation, and thus cannot guarantee that employees will use the additional compensation to acquire insurance. This option, therefore, is rendered less effective for helping meet employees’ health insurance needs.

According to the U.S. Treasury Department, 96% of all businesses in the U.S. have 50 or fewer employees, so their collective voice in Washington will certainly be heard. But until Congress acts, small business owners will have to tread carefully or risk an even greater financial burden than the one they were trying to alleviate in the first place.

State Court Joins Federal Court to Uphold Earned Sick Time Law, Employers Try to Navigate New Law Effective July 1, 2015

Tuesday, July 14, 2015

By: Curtis B. Dooling

A Massachusetts District Court judge upheld the earned sick time law on Monday (July 13), the second court to uphold the new law after construction contractors unsuccessfully challenged the law. A U.S. District Court judge dismissed their claims last week.

The earned sick time law, which requires nearly all Massachusetts employers to provide earned sick time to their employees, was approved by  voters last  November and  went into effect  July 1, 2015.

Basic Summary of Sick Time Law

Employees who work for employers having eleven or more employees can earn and use up to 40 hours of paid sick time per calendar year, while employees working for smaller employers can earn and use up to 40 hours of unpaid sick time per calendar year. Employers must provide all employees, including part-time and seasonal employees, one hour of sick time for every 30 hours worked. The maximum amount of sick time an employee can accrue in one year is 40 hours.

An employee can use earned sick time if required to miss work for the following reasons: (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child.

Employees can carry over up to 40 hours of unused sick time to the next calendar year, but cannot use more than 40 hours in a calendar year. Employers are not required  to pay employees for unused sick time at the end of their employment. If an employee misses work for a reason eligible for earned sick time, but agrees with the employer to work the same number of hours or shifts in the same or next pay period, the employee will not have to use earned sick time for the missed time, and the employer will not have to pay for that missed time. Employers may not interfere with, restrain or deny the exercise of an employee’s rights under the law and employers may not retaliate against employees for exercising their rights under the law.

The Massachusetts Attorney General’s Office (“AGO”) has issued final regulations (available at http://www.mass.gov/ago/docs/regulations/940-cmr-33-00.pdf) regarding the interpretation and enforcement of the law.

A Brief Summary of the AGO’s Final Regulations For  Employers and Employees

  • An employer’s paid time off policy already in place may be substituted for earned sick time as long as 40 hours of time off under the policy complies with the following:
    • Accrual at the rate of no less than one hour for every 30 hours of work;
    • Pay at the employee’s same hour rate;
    • Access to time off for all uses authorized under the law;
    • Availability with the same rules concerning notice and documentation;
    • Offers the same job protections.
  • Employees must be paid at the “same hourly rate” when using earned sick time, with specific carve-outs for tipped employees, employees paid on commission and salaried employees.
  • Employees may accrue and use their time if their primary place of employment is in Massachusetts.
  • The smallest increment of sick time employees may use is one hour.
  • Employees may not use sick time as an excuse to be late for work. If an employee engages in a clear pattern of taking leave on days just before or after a weekend or vacation, an employer may discipline the employee for misuse of sick leave time unless the employee provides proof or verification of authorized use of sick leave.
  • Employees may retain earned sick time when they are terminated and rehired with certain restrictions.
  • Employees must provide notice to their employers when using sick time except in cases of emergency.
  • Employers can require written documentation (within seven days, with certain exceptions) for an employee’s use of sick time in the following circumstances:
    • if the leave exceeds 24 consecutively scheduled work hours;
    • exceeds three consecutive days on which the employee was scheduled to work;
    • occurs within two weeks before an employee’s final scheduled day of work, except in cases of temporary employees;
    • occurs after four unforeseeable and undocumented absences within three-month period;
    • for employees aged 17 and under, occurs after three unforeseeable and undocumented absences within a three-month period.

Understandably, many employers are concerned with the daunting task of implementing a sick leave policy that fully complies with the statute and the newly-enacted regulations. Pierce & Mandell’s experienced employment law attorneys are here to guide employers through this process. We strongly encourage employers to contact us in order to proactively implement compliant sick leave policies.


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