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

William M. Mandell - Monday, December 05, 2016

Karen Rabinovici, Pierce and Mandell, PCBy 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.

Mass HIway likely to see changes in the near future

William M. Mandell - Thursday, December 01, 2016

By Karen Rabinovici

The state-sponsored Health Information Exchange, known as the Mass HIway, was launched in October 2012, offering doctors’ offices, hospitals, laboratories, pharmacies, skilled nursing facilities, and other healthcare organizations a method by which to securely exchange information electronically with each other.  The aim of the Mass Hiway was to improve care coordination and delivery, avoid readmissions and medical errors, reduce administrative costs and duplicative testing, enhance communication among providers, increase patient engagement, and improve public health reporting and analytics.  One of the Mass HIway’s main functions is secure direct messaging between participating users, and the Mass HIway plans on soon offering “Event Notification Services,” which will allow for the transmission of notifications to a patient’s health care providers when the patient is admitted to any participating hospital in the state.  All providers, regardless of affiliation, location, or differences in technology, may use the Mass HIway.

The Mass HIway is now likely looking at some changes in the near future.  On Friday November 4, 2016 the Executive Office of Health and Information Services released proposed regulations specific to the requirement for all providers to implement a fully interoperable (meaning, having the ability to send and receive HIway direct messages) electronic health record that connects to the Mass HIway, and the establishment of a mechanism that allows patients to opt-in or opt-out of the MassHIway.  The proposed regulations require specific providers (acute care hospitals, medical ambulatory practices with ten or more licensed providers participating in health care delivery, and all community health centers) to connect to the MassHIway between 2017 and 2019, while other types of providers (behavioral health entities, dental clinics, nursing homes) will be required to connect at a date to be specified, with at least one-year notice (and no earlier than January 2018).  Connection requirements will be established through future regulations.  The proposed regulations would require that providers that are required to connect to demonstrate compliance by attesting to implementing at least one “Use Case of HIway Direct Messaging.”  Examples of this are a hospital using the Mass HIway to send discharge summaries to a receiving facility, or a primary care physician practice using the Mass HIway to send referrals.  The proposed regulations require acute care hospitals to send Admission, Discharge, and Transfer messages using the Mass HIway.

Regarding the opt-in or opt-out mechanism, the proposed regulations will require that a provider must provide written notice to patients that it will use the Mass HIway, and must include in this written notice instructions in the event the patient chooses to opt-out.  Thereafter, either the provider will inform Mass HIway of the patient’s decision to opt-out, or will provide the patient with instructions on how to do so.

A public hearing was held by the EOHHS on Monday November 28, 2016, and public comments were accepted until Tuesday November 29, 2016. Additionally, the EOHHS accepted electronic written testimony.

The proposed regulation can found here.

Are Chimpanzees Human Enough To Be Granted Some Human Rights by Karen Rabinovici

William M. Mandell - Tuesday, July 21, 2015

by Karen Rabinovici

Pierce & Mandell associate attorney Karen Rabinovici takes on the unusual topic in the July 2015 edition of Massachusetts Lawyers Journal in an article entitled  “Are Chimpanzees Human Enough To Be Granted Some Human Rights?” The article describes two chimpanzees – Hercules and Leo, both 8, - who have both been used in research at Stony Brook University in New York and are at the center of a court proceeding. The judge in the case has ordered Stony Brook to defend its detention of the chimps, whose freedom the Nonhuman Rights Project is advocating for, arguing that because chimpanzees have skills similar to human reasoning and self-determination, such captivity amounts to unlawful imprisonment.

“The Nonhuman Rights Project’s ultimate goal is to free the captive chimpanzees (along with others) and move them to a sanctuary where they can live as naturally as possible amongst other chimpanzees,” Rabinovici writes. “It has long been accepted that chimpanzees possess many characteristics originally believed to be exclusive to human beings. So the question is, do chimpanzees have enough human characteristics to be granted some human rights?”

Pierce and Mandell Associate Karen Rabinovici Writes Article for “Massachusetts Lawyers Journal” – Boston, MA

William M. Mandell - Thursday, January 08, 2015

An article entitled “’Puppy Doe’-inspired legislation will further protect abused animals" by Pierce and Mandell associate Karen Rabinovici recently appeared in the January 2015 edition of Massachusetts Lawyers Journal. The article details the passage of recent Massachusetts legislation designed to better protect animals and appropriately punish perpetrators of abuse.

Massachusetts Lawyers Journal Article on Plight of Captive Elephants - Karen Rabinovici

William M. Mandell - Wednesday, April 30, 2014

An article by Pierce and Mandell associate Karen Rabinovici recently appeared in the April 2014 edition of Massachusetts Lawyers Journal, a publication of the Massachusetts Bar Association.

Karen’s piece details the plight of captive elephants used for entertainment, the abuse and terror they endure, and proposed Senate Bill 1626, which if enacted would prohibit the use of bullhooks in Massachusetts on captive elephants.

The article can be found by clicking here, and scrolling to page 16:

Karen provides the following update to the article:

Sadly, on March 13 the Senate Committee voted to send the bill to “study,” effectively killing it.  Hopefully the HBO documentary “An Apology to Elephants” will join the ranks of other renowned films such as “The Cove” and “Blackfish,” which helped change popular opinion regarding the shameful treatment of animals.  This could help pave the way for the bill in the future.

For more information, please contact Karen at karen@piercemandell.com or (617) 720-2444.


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