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But the Appeals Court does not think so, and its say is all that matters at this point. Applying what is termed the sovereign immunity doctrine – the idea that the government cannot be sued, even under the laws it creates and applies to others, without its expressed consent – the Court found the Massachusetts legislature did not authorize its own employees to sue for damages under the Wage Act. The decision means that, while private employers are subject to severe penalties for paying their employees late, the arms of state government, perhaps the largest employer in Massachusetts, are not.

“Applying sovereign immunity in this case is consistent with the legislative goal of protecting the public treasury against depletion from unanticipated money judgments,” the Court concluded in Harrison v. Massachusetts Bay Transportation Authority after a thorough review of case law regarding the concept. Pushing aside concerns that blocking state workers from suing under the Wage Act deprives them of protections the legislature intended to grant to all Massachusetts employees, the Court went on to write, “Any unjustness in the inadequacy of the remedies and the scope of coverage of G. L. c. 149, §§ 148, 148A, and 148B [the Wage Act] are matters best addressed by the Legislature.” In other words, if lawmakers don’t like the Court’s conclusion, they can amend the Wage Act to clear the way for state employees to enjoy the protections it provides to the Commonwealth’s private work force.

Those protections are substantial. Under the Act, employers must pay their employees all wages they earn within narrow time limits. A 2022 decision by the Massachusetts Supreme Judicial Court, Reuter v. City of Methuen,  made clear that any late payment of earned wages, regardless of duration, triggers the Act’s harsh, automatic penalties – employers owe three times the amount of unpaid wages to employees and must reimburse them for any legal fees they incur to collect their pay. The law also provides standards that strongly favor classifying workers as employees rather than independent contractors. Violations can lead to substantial monetary damages that are also subject to the law’s mandatory penalties. Overtime laws, which also carry triple damage/legal fees penalties, may also be affected by the Harrison decision.

The post Appeals Court Holds that Employees of Massachusetts Governmental Agencies Cannot Sue Under the Wage Act appeared first on KSR Law.

Before signing the legislating just before Memorial Day, Gov. Baker rejected a similar bill but let legislators know he’d support sick leave for COVID with certain changes. In its final form, the new law requires employers to provide paid sick leave at an employee’s regular pay rate, up to $850 weekly, for the following purposes.

1. For employees themselves, to self-isolate due to a Covid-19 diagnosis; to seek a medical diagnosis or care for COVID symptoms; or to recover from the COVID vaccine.
2. To permit workers to care for family members who are seeking a diagnosis, self-isolating, or being treated for the disease.
3. To comply with a local or other quarantine order that prevents work.
4. Because an employee cannot telework due to COVID symptoms.

Employers can apply to the Commonwealth for reimbursement of their costs for this program. To do so, they must require workers to complete a form that describes the reason leave was taken. Employers need to retain this data along with other information such as the employee’s social security number, regular work schedule, and benefits records. The data will be used to apply through an as-yet undefined reimbursement application process.

Employers are, of course, barred from retaliating against employees who take COVID sick leave or act in support of it for themselves or other workers. Additional information, including the information required to be collected and maintained to be eligible for reimbursement, and other common questions, is available at the Commonwealth’s website, which was posted June 11: https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program.

The post New Law Requires Employers to Provide their Workers up to 40 Hours of Sick Leave to Address COVID-19 Issues appeared first on KSR Law.

Before employers are forced to deal with these sorts of issues, applications must be filed and leaves must be approved. The process is administered by the Department of Family and Medical Leave, which decides whether to approve leaves and also pays employees for time off at up to $850 weekly based on their normal wages. Employer involvement in this process is relatively minimal, though there are steps that must be taken to help the program flow smoothly. What follows is an overview of the basics of the PFML and how employers can successfully navigate it.

Leave Options

The maximum benefit of 26 weeks of leave is available in a narrow range of circumstances. It may be used by employees to care for active military service members who suffer serious, service-related medical problems. Other types of service-related leaves are capped at 12 weeks. The PFML also provides up to 20 weeks of leave caused by an employee’s own serious medical condition. Though leave to care for a family member’s serious medical condition is also available, the cap is 12 weeks and the benefit cannot be used until July 1, 2021. Employees can also take up to 12 weeks of leave per year to bond with a newborn or newly adopted child prior to his/her first birthday. Again, though all approved leaves under the PFML are paid, the money does not come from employers. The Department of Family and Medical Leave is responsible for making the wage payments outlined by the statute. Sick and vacation leave benefits need not accrue during an employee’s leave of absence. Employers must continue to make their share of health insurance payments for absent workers and employees must do the same.

Employer Obligations

As all employers know or should know by now, the PFML requires of them two major tasks: provide information to their workers though posters and policies and make quarterly payments to the Department to fund the family and medical leave program. Both these tasks should have been undertaken long ago, with employers calculating employee contributions based on a set formula, contributing a roughly equal amount if they have 25 or more employees, and sending the money to the Department. Employers also need to determine whether independent contractors who may perform work for them are covered and, in limited circumstances, whether an exemption from the law applies to them. Penalties may apply for failing to comply with any of these requirements. Finally, employers must designate a PFML Administrator through the Department’s web portal to handle the processing of information that will be requested when employees apply for benefits. There is little else for employers to do other than ensuring that they comply with the law when employees apply for and/or receive leave benefits.

Application Process

When employees believe they are entitled to a leave under the statute, they must apply directly to the Department up to 60 days in advance of the leave date. Employers who are asked about the process need only refer workers to the Department’s online application portal. Employers first get notice that the application is underway and are later notified it is complete and asked to review it. Comments by employers on the merits of applications will be accepted and considered, but the Department of Family and Medical Leave makes all decisions whether to approve or deny them. As a further part of that process, employers will be asked to both confirm the accuracy of an employee’s information and to provide data such as whether other leaves were taken, whether employees receive sick leave or vacation pay for absences, the period of employment and wages earned, the employee’s regular work schedule, and other information. Once the Department makes a decision on an application, it will notify the employer and describe the terms of the leave and/or reasons for denial, as the case may be.

Job Protection and Retaliation

Employees on an approved leave under the PFML enjoy job protection, and employers cannot retaliate against them for participating in the program. Regardless of any inconvenience to their employers, employees must be returned to the same or a similar job with similar pay and benefits when their leaves end. This rule will not apply when bona fide layoffs occur among similarly situated employees during the leave period. Employers cannot punish their workers for applying for or taking leave. Damages of up to three times lost wages and reimbursement of legal fees may be awarded for transgressions of the law. An exception to these job protections exists when leave is taken for treatment of substance abuse. Employers with an established, communicated policy providing for job loss based on substance use may be permitted to terminate an employee on paid leave. For workers who will return to work, employers may uniformly require a fitness for duty certification from a medical provider.

The post The New Paid Family and Medical Leave Act: What’s an Employer to Do? appeared first on KSR Law.

The Attorney General filed suit against the two companies in July. She asserts that Massachusetts law makes Uber and Lyft drivers employees rather than contractors. The difference between the two is significant, since only employees enjoy legal protections in the forms of minimum wages, workers’ compensation, sick leave, and perhaps health insurance benefits, among others. Healey has reportedly said that Uber and Lyft have taken a ‘free ride’ on the backs of Massachusetts workers for ‘too long.’ She accuses them of profiting from exploitative conduct that is illegal under Massachusetts law, and seeks to put a stop to the practice of classifying drivers as independent contractors. The state’s classification statute requires that employers treat workers as employees unless they are free from workday control; work outside the normal course of the employer’s business; and operate independent companies.

The suit follows one filed by several cities and the attorney general in California, which recently passed a worker classification law that is similar to the one in Massachusetts. In August, a San Francisco judge issued a preliminary injunction ordering Uber and Lyft to classify workers there as employees under the new California law. The companies have vowed to appeal. They assert that many workers prefer to be classified as contractors and that the court’s ruling amounts to an attack on their independence.

Uber and Lyft also face class action suits for damages by drivers in Massachusetts on the same grounds. They have combatted the claims in part by seeking to compel arbitration of individual suits so that drivers cannot proceed against them as a group via a class action, which present risks for extremely high damage and legal fee awards.

The post Uber and Lyft Face Suit Over Treatment of Drivers as Independent Contractors Rather than Employees appeared first on KSR Law.

Earlier this week, Governor Baker announced his plan to reopen the Massachusetts economy in four phases. Who can open when and under what conditions won’t be announced until next week, but it’s a safe bet that companies that work face-to-face with customers will be among the last and most comprehensively regulated. In the meantime, small companies are urged to prepare to reopen. The Commonwealth has created a list of rules that must  generally be followed by all, including the following:

1. Social Distancing – all business will be required to build this into their operations. Signs, protocols to maintain safe distances, and face masks will all be a part of this process.
2. Hygiene – employees will be required to regularly wash hands, and businesses will be required ensure they do so. They’ll need to provide the supplies for this and ensure that high-touch areas are frequently washed.
3. Employees – training for the new business rules will be required, as will a plan to ensure workers who have COVID-19 or are exposed to it are removed from work. A protocol for their return to duty will also be mandatory.
4. Cleaning – a regular cleaning and disinfecting plan for company premises will need to be implemented. Special procedures will apply when employees or others with COVID-19 are discovered.

In addition to these challenges, newly reopened business are likely to discover, as ones that never closed already have, that getting workers to jobsites is more difficult than it once was. Many will be reluctant to return or to remain at work due to health concerns. As a general rule, companies that provide safe work environments can require their employees to work or face termination and a loss of unemployment benefits. That rule, of course, has its limits. Some workers who refuse to return will likely be shielded by disability discrimination/reasonable accommodation rules or the new federal paid leave statute, which provides up to 12 weeks of largely paid leave to qualifying workers. Others must report to work or sacrifice unemployment checks unless they or members of their immediate families are subjects of COVID-19 quarantine requirements.

The post Massachusetts to Begin Reopening Business appeared first on KSR Law.

•  Governor Charlie Baker’s March 23, 2020 order that all non-essential businesses close their doors came with a long list of exceptions. Companies that operate in the healthcare, public safety, and food industries, e.g., can remain open, as can companies that support them. Because civil penalties and even criminal sanctions can be leveled against violators of the order, all companies that remain open should ensure they fit within one of the Governor’s exceptions. For more information, click here.
• Companies that remain open must now deal with mandated federal benefits to employees under the Families First Coronavirus Response Act, signed by President Trump on March 19. It requires payment of two weeks of sick leave for employees who suffer Coronavirus symptoms, are quarantined, or must stay home to care for a child whose school is closed. The leave is in addition to any sick leave available under Massachusetts law. Rates vary and can be at a workers’ regular rate or 2/3 of that depending on the purpose it is used for. Families First also requires granting up to 12 weeks of leave to employees caring for children under 18 who are home from school. The payments in each category are capped on a weekly basis and are recoverable by employers through Social Security tax credits. Those, of course, get credited only later, when employee tax filings are made.
• Unemployment pay for workers who are furloughed due to the Coronavirus remains available through the Massachusetts Department of Unemployment Assistance. Under the recently enacted CARES Act at the federal level, the amount and duration of benefits was broadly expanded, as was eligibility. Employees who cannot work due to the virus should apply for benefits online.  Click here for information and to access the application link.
• On March 31, the U.S. Department of the Treasury issued information on the Small Business Paycheck Protection Program (“PPP”) of the Coronavirus Aid, Relief and Economic Security (“CARES”) Act. The PPP is intended to provide short term loans to small businesses (under 500 employees) affected by the current pandemic. Click here for a summary of PPP features. The link to information for Borrowers is particularly helpful. PPP loans can only be issued by existing SBA lenders (typically federal banks and credit unions), and it is recommended that you contact your current banker before seeking assistance elsewhere. Applications will be accepted starting April 3, 2020. See the Treasury summaries for details and important limitations, but generally certain loan proceeds can be forgiven if used for payroll and rent, and employees are kept on payroll or rehired soon. The PPP loans are for a two-year term and provide a 0.5% fixed interest rate with payments deferred for six months.
• For immediate relief, the SBA also has emergency loans/grants in the amount of $10,000. The funds should be provided to the business within three days of applying for an economic injury disaster loan. The applicant must provide a self-certification that it is an eligible entity to apply.  Even if applicants are later not approved for an economic injury disaster loan they are not required to repay this advance payment, provided that the grant must be used for allowable purposes, including payroll, sick leave, rent or mortgage, or other obligations that cannot be met due to the crisis. Click here to find the application.

For help on employee-related issues, please contact Jack Merrill at 781-418-5116 or jmerrill@ksrlawfirm.com. For information and help on SBA and other loan programs, contact Lloyd Sanders at 781-418-5121 or lsanders@ksrlawfirm.com. We hope this information is helpful and are available, as always, to answer any questions you may have.

Jack Merrill
Lloyd Sanders
Frank Ravinal
KSR Law

The post Employer Update: Coronavirus and the Workplace appeared first on KSR Law.

In 2018 alone, three major new laws regulating employer behavior took effect, and two others were passed to take effect later. Each brings new legal rules that can be both complicated and nuanced. If this was all employers had to worry about, it would be enough. But the new laws are piled on top of a large group of existing laws and rules that employers need to understand and navigate. Those who don’t risk financial peril, which can arise from unexpected places and may threaten a company’s survival.

Enter the concept of the employee handbook, a simple communication tool that, properly used, can serve as a bulwark against potentially expensive employee lawsuits, government audits and other pitfalls. In addition to making management easier by publishing clear rules for all to see, a strong handbook does two key things. First, it ensures that managers are aware of and apply applicable employment laws. A good handbook tells managers what rules apply and holds them accountable for following them. Second, a strong handbook tells workers that their employers are serious about following laws that protect them on the job. When they have questions or need the benefits of a particular policy, they are likely to approach managers rather than calling attorneys for help.

Employee handbooks generally describe the rules and policies that apply to a particular workforce. They are normally tailored to each employer and include the basics – a description of the work week and hours; pay structures and dates; vacation accrual and use; expected behavior; and the like. They can also include procedures that help employers avoid problems – how and when to punch time clocks, e.g., or rules concerning impermissible conduct and potential discipline. Most important, a good employee handbook provides detailed policies concerning employee benefits and rights, some of which must be written under Massachusetts or federal law. These include policies on sick leave, rules to protect pregnant women, procedures to prevent and eliminate sexual harassment, and, in some cases, rights provided by the Family and Medical Leave Act (FMLA).

A strong employee handbook covers these and other issues while maintaining an employer’s power to exercise judgment in dealing with its employees. That balance is important, since miscalculation can lead to lawsuits regarding whether rules and procedures in a handbook are contractually enforceable by workers. Mistakes in this area may be costly, as one employer recently learned when a U.S. District Court judge ordered a trial be held regarding whether a handbook’s employee review process made promises that the employer did not keep.

While the list of all that should be covered in an employee handbook is too broad for this article, key policies are summarized below. Each should, of course, be tailored to fit the employment situation that prevails in a particular workplace.

1. Disclaimers. This subject is critical. Every handbook should include language making clear that employees work at-will and that management can modify policies as they choose. That said, employers are well served to comply with policies in their handbooks and change them only on a prospective basis. Employees should be required to sign off on disclaimers, and copies should be kept in personnel files.
2. Sick Leave. Since 2015, Massachusetts has provided employees with rights to earn and use sick time. Employers with more than 11 workers (including part-timers) must pay for leave time up to 40 hours annually. A variety of rules apply, and employers must keep accurate records of accrual and usage. Sick leave policies must be written.
3. Vacation Time. Since unused, accrued vacation time must be paid out to departing employees, clear policies that include accrual rules are important. Vacation time is not mandatory but, when given, accrual and other rules must be honored.
4. Harassment. State law has long required most companies to have a written sex harassment policy and to distribute it annually. All should have one, regardless of size, and policies should cover various other forms of harassment. They should provide complaint and investigative procedures. Training of management employees and others makes sense for many employers, though not all.
5. Pregnancy Rights. Effective April 1, 2018, pregnant employees are entitled to rights that are similar to those benefitting handicapped individuals. Employers may be required to modify job duties, grant leaves, or provide new areas for breastfeeding mothers. A written policy is mandatory.
6. Time Keeping. The law requires that time records be kept for workers who are not exempt from overtime rules, and this is a major area of administrative enforcement at both state and federal levels. Policies outlining required procedures and penalties for breaching them should be included in employee handbooks.

The post New Laws in 2018 Bring Risks to Employers that Make Keeping an Effective Employee Handbook More Important than Ever appeared first on KSR Law.

Lloyd Sanders, KSR Law co-founder and partner, said, “Much like our clients, it’s essential that we continue to evolve and align our business with the changing needs of those we represent. The new name, which is simpler and more direct, is part of that strategic vision. We feel it will create a stronger, more modern identity for the firm. At the same time, it preserves our 25-year history and is consistent with our longtime online brand. We’re excited to share this news and reaffirm that KSR Law means business.”

About KSR Law

KSR Law is a Metrowest law firm providing world-class representation and counsel to small businesses and their principals. With a special focus in employment, business and real estate law, the firm’s lawyers have decades of experience across the spectrum of small business issues — from corporate structures, business deals, and contracts to lending, financing, and all aspects of employee management, wages and noncompetition issues.

The post Metrowest Law Firm Kushner Sanders Ravinal LLP Changes Name to KSR Law appeared first on KSR Law.

• Wage laws – what do they require and what are the risks of noncompliance?
• Sex at work/#MeToo – how to avoid harassment and discrimination problems
• Noncompetition and confidentiality – how to protect valuable information from your competitors
• Family and medical leave – the new law and current rules on when employees are entitled to leaves of absence
• Employee vs. independent contractor

KSR Law is an annual sponsor of the Massachusetts Small Business Development Center’s central regional office in Worcester, MA.

Merrill counsels individuals and small businesses on employment and other matters; handles discrimination, sexual harassment, and wrongful discharge cases; drafts, negotiates, defends against, and litigates employment contracts; provides sexual harassment training and other educational services; drafts employment manuals; and handles a variety of civil matters (including business and real estate related matters). He is experienced in all Massachusetts state and federal courts, in arbitration and mediation, at the MCAD and EEOC, and in other administrative venues. Merrill is the author of the firm’s informative employment law blog.

About the Massachusetts Small Business Development Center (MSBDC) Network

The Massachusetts Small Business Development Center (MSBDC) Network provides one-to-one free comprehensive and confidential services focusing on, business growth and strategies, financing and loan assistance as well as strategic, marketing and operational analysis. In addition, low-cost educational training programs are offered across the state targeted to the needs of small business. Services are delivered through a statewide network of skilled professionals supported by a vast network of federal, state, educational and private sector partners. With seven regional and specialty offices and 38 outreach locations across the state, services are available within 30-minutes of most potential clients in the state.

About KSR Law

KSR Law is a MetroWest law firm providing world-class representation and counsel to small businesses and their principals. With a special focus in employment, business and real estate law, the firm’s lawyers have decades of experience across the spectrum of small business issues — from corporate structures, business deals, and contracts to lending, financing, and all aspects of employee management, wages and noncompetition issues.

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