Over the past few years the National Labor Relations Board (“NLRB”) has been re-examining whether it can assert its jurisdiction over religious schools, universities and hospitals. Recently, Bello Welsh LLP convinced the NLRB’s Division of Advice in Washington, D.C. that the NLRB lacked jurisdiction over our pro bono client, Nativity Preparatory School of Boston. The case is remarkable given that since April 2014, the NLRB has been expanding its jurisdiction inexorably over religious institutions based on its decision in .
In 2013, as reported here, a Massachusetts trial court upheld efforts by staffing companies and workers compensation insurers to close a loophole that allowed staffing-firm employees injured while providing services to a client company both to collect workers compensation benefits from their staffing company employer and to sue the client company. Specifically, the court held that by virtue of an alternate employer endorsement naming a staffing company’s client as an insured under the staffing company’s workers’ compensation policy, the client company is entitled to the same immunities as the staffing company under the Workers Compensation Act (the Act).
Today, the Appeals Court of Massachusetts affirmed the trial court’s decision (disclosure: I represented State Garden both before the trial court and the Appeals Court). Specifically, the Appeals Court held that an “alternate employer endorsement” to a staffing company’s workers’ compensation policy satisfies the requirements of the Massachusetts Workers’ Compensation Act, such that the staffing company’s client is entitled to the protection of the exclusivity provision of the Act. In other words, the client company cannot be sued in tort by an employee of the staffing company who is injured while performing services to the client company, provided that the staffing company had obtained an alternate employer endorsement to its workers’ compensation policy that specifically names the client company as an additional insured.
The Appeals Court also held that the injured employee’s claim is barred by the terms of a valid waiver and release he signed at the beginning of his employment, pursuant to which he agreed not to sue a client company for damages based upon injuries covered by the Workers’ Compensation Act.
This case is important for at least three reasons. First, the decision protects staffing companies from having to indemnify clients against claims arising out of workplace injuries – or fighting with clients about responsibility for such claims – the costs of which are almost never factored into the fees charged by staffing companies to their clients. Second, the case protects companies that use staffing companies against claims for damages covered by their staffing company’s workers’ compensation policy. And third, the Appeals Court’s decision is consistent with and supports the intended effects of the Workers’ Compensation Act, as well as all parties’ bargained-for rights and obligations.
- Staffing companies- obtain alternate employer endorsements that specifically name your client companies as additional insureds.
- Workers’ compensation insurance carriers- tell your staffing company clients to obtain, and your client company clients to demand, appropriate alternate employment endorsements.
In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview. In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation. Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed. Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.
On October 29, 2014, Bello Welsh will present a session on HR and Employment Law Issues for Start Ups and Small Businesses at the Cambridge Innovation Center, 1 Broadway, Cambridge, MA.
Start-up companies focus on developing their idea and bringing their product or service to market. Small existing businesses work to implement their core business goals and strategies. In either case, there is often little inclination or staff to pay close attention to day-to-day employee issues. After all, how difficult can it be to manage a workforce comprised of a relatively few employees? The answer is “very.” HR is a complicated patchwork of federal, state and local laws, regulations and requirements, most of which apply in some form to employers of all types and sizes. HR problems can surface when least expected, and can be extremely time consuming and costly.
In this discussion, you’ll learn how to manage the complexities of Small Business HR and to minimize the risk of preventable lawsuits, penalties, and time-consuming employee-relations issues. For example, you’ll learn about:
- Creating and maintaining appropriate documentation, including job descriptions, offer letters, personnel policies, and other personnel documents;
- Managing employee performance and terminations;
- Managing leaves of absence;
- Dealing with wage & hour issues; and
- Handling internal complaints and investigations
The session will be held on October 29, 2014, 6:00 p.m. to 8:00 p.m. , at the Cambridge Innovation Center, 1 Broadway, Cambridge, MA, in the Charles River Room (14th Floor).
Please register at the following site: http://tinyurl.com/qjmk3ez
- Bello / Welsh once again has been recognized by U.S. News and World Report as one of the “Best Law Firms” in the area of labor and employment law, both nationally and in the Boston Metropolitan area.
- On October 1, 2012, Steve Weatherhead was a panelist at the FirmFuture – Practice Management & Legal Technology Conference that was held at the Boston Marriott Copley Place. Steve participated in a discussion entitled “Gnat Bags Elephant: How Small Firms Win (and Keep) Large Corporate Clients.” For more information please click here.
- Chambers USA again has ranked Bello / Welsh as a top Labor & Employment law firm in the state of Massachusetts, and praised partners John Welsh, Kenneth Bello and Josiah Black for their respective accomplishments.
- John Welsh was recognized as the “Massachusetts Labor & Employment Attorney of the Year” by Corporate INTL Magazine in their 2011 Global Awards.
- Bello Black & Welsh has been recognized by U.S. News as one of the “Best Law Firms” in 2011-2012 in the area of management-side labor and employment law.
- Bello Black & Welsh sponsored a table at the Women’s Bar Association Annual Gala on November 17, 2011, where guest speakers included the Honorable Margaret Marshall, who recently retired as Chief Justice of the Massachusetts Supreme Judicial Court.
- Josh Black recently was elected to the “Best Lawyers in America” in the practice area of Employment Law – Management.
- On September 22, 2011, the Firm announced that the formation of an “of counsel” affiliate relationship with Ford & Harrison LLP, a national labor and employment law firm. Click here to view a copy of the press release.
- John Welsh recently was honored by his alma mater, St. John’s High School, for his many contributions and distinguished service to the school. Among other things, John was recognized for his service on the Board of Trustees, for helping create a framework to facilitate dialogue among St. John’s constituents (including students, families and administrators), and for his commitment to ensuring the school remains affordable to students from the Worcester area.
- The Firm’s affiliation with Ford & Harrison LLP was featured in the September 30, 2011 edition of the Boston Business Journal.
- John Welsh and Steve Weatherhead authored the chapter on labor and employment law in a recent publication from Massachusetts Continuing Legal Education, Inc. entitled “Advising a Massachusetts Business.” Click here to learn more.
- John Welsh was quoted in the September, 2011 edition of the Massachusetts Lawyers Weekly regarding the advantages of small firm practice.
- Ken Bello was quoted in the May 23, 2011 edition of the Massachusetts Lawyers Weekly regarding the increase in worker-classification audits, particularly in Massachusetts. Click here to view the article.
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