Bello Welsh LLP

B/W NEWS – 2011 Company Achievement Highlights

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  • 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.
  • 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.

Bello Welsh LLP

CLIENT ALERT – New California Legislation Takes Aim at Gender discrimination, Credit Checks by Employers, Pregnancy Leave Healthcare Coverage and Commission-Based Employment.

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Effective January 2012, California employers will be required to comply with new regulations relating to gender discrimination, credit checks, and pregnancy leave healthcare coverage. Additional changes will be made to Commission-based employment regulations in January 2013.

New Protection for Transgender Employees in California

Effective January 2012, the “Gender Nondiscrimination Act” will add “gender expression” and “gender identity” to the list of classes protected from discrimination in the workplace and in housing under California’s Fair Employment and Housing Act. The Act provides protection for transgender individuals who face discrimination for their behavior and/or appearance as they relate to sex and gender. It also requires employers to revise dress codes to accommodate transgender individuals.

California Prohibits the Use of Credit Checks for Employment Purposes

California joins six other states in restricting the use of credit checks for employment purposes. In most cases, employers will now be prohibited from using credit-related information — such as credit history, credit score, and credit records — when hiring new employees.

California Law Intended to Protect Employees’ Health Care Coverage During Pregnancy Leave

A new California law, which amends the California Pregnancy Discrimination Law, prohibits employers from refusing to pay group health plan coverage for female employees who take pregnancy or childbirth leave.

California Amends Commission-Based Employment Contract Requirements

Effective January 2013, in-state employers will have to abide by rules previously applicable only to out-of-state employers, requiring employers to create a written contract for all commission-based employees describing how commissions will be computed and paid. Once effective, the law will also require all employers to give a copy of the contract to each applicable employee, and obtain a signed receipt for the contract from each employee.

Bello Welsh LLP

CLIENT ALERT – Gender Identity Now a Protected Category under Massachusetts Employment Discrimination Law

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Effective July 1, 2012, gender identity will become a protected category under Massachusetts employment discrimination and other civil rights laws. The new legislation amends existing state anti-discrimination statutes to prohibit discrimination based on gender identity, defined as an individual’s gender-related identity, appearance, or behavior, which may be different from that traditionally associated with the individual’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence such as medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity. The law prohibits individuals from asserting gender-related identity for any improper purpose.

Bello Welsh LLP

CLIENT ALERT – New California Legislation Aimed at Employee Misclassification and Wage Theft

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Effective January 1, 2012 California employers will be required to comply with new requirements relating to employees and independent contractors.

California law will now impose strict penalties for employers with workers in California found willfully to have misclassified workers as independent contractors. The so-called “Job Killer Act” will levy heavy fines on employers for voluntary and knowing misclassification: penalties will range from $5,000 to $10,000 for the first violation and up to $25,000 for subsequent violations. An employer found to have violated the Act may also be ordered to post, on its website or in another prominent location, a notice relating to the violation. Additionally, the Act prohibits charging a misclassified worker a fee or making deductions from his/her compensation for any purpose arising from the individual’s engagement where such deductions would have been prohibited under the existing California Labor Code if the individual had not been misclassified.

California has also passed the Wage Theft Prevention Act of 2011 (“WTPA”), which requires private employers to provide each new non-exempt employee with a written notice at the time of hiring, in the language the employer normally uses to communicate employment related information, containing information regarding the employee’s pay rate, overtime rate and regular payday, and the employer’s name and contact information, among other specified items. The WTPA also provides for increased penalties for certain minimum wage violations, repeat violations, and failure to comply with final court judgments or Commissioner orders.

Both of these recently enacted statutes follow nation-wide trends of stepped-up enforcement of independent contractor classification and wage payment requirements. California employers in particular should be prepared for increased scrutiny in these and other areas of employment laws, and should take steps to ensure compliance with these statutes before they become effective on January 1, 2012.

Bello Welsh LLP

CLIENT ALERT – DOL, IRS, and 7 States Coordinate Efforts to Reduce Employee Misclassification

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On September 19, 2011 the United States Department of Labor (DOL) and Internal Revenue Service (IRS) signed a memorandum of understanding to increase the agencies’ coordination in their efforts to curtail employee misclassification. Seven states–Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington–have already signed cooperation agreements with the DOL and IRS to combat employee misclassification. Four more states–Hawaii, Illinois, Montana, and New York–are expected to sign similar agreements in the near future. Government agencies at all levels are cracking down on misclassification in response to substantial losses in tax revenues related to what they view as a pervasive practice of misclassifying employees as independent contractors.

Under the new cooperation agreements, states will share information with the DOL and IRS if an employer fails to remit unemployment insurance or workers’ compensation premiums on behalf of employees found to be inappropriately classified as independent contractors. This information will be used by the DOL to audit the employer for federal wage-hour violations and by the IRS to seek unpaid taxes and associated penalties. Employers who benefit from using independent contractors are now vulnerable to a three-pronged strike for a single misclassification violation. Employers are advised to familiarize themselves with the factors the DOL, the IRS, and state enforcement agencies use to determine whether a worker is an independent contractor or an employee to avoid steep misclassification penalties.

Bello Welsh LLP

CLIENT ALERT – New Quarterly Wage and New Hire Reporting Requirements for New York Employers

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Effective July 15, 2011, New York employers will be required to report to the State Directory of New Hires whether dependent health insurance benefits are made available to their employees. The Low Income Support Obligation and Performance Improvement Act of 2009 (the “Act”) applies to all New York employers and adds to their existing reporting obligations with respect to quarterly wage, new hire, and rehire reporting. For quarterly wage reporting purposes, employers must now use the updated Form NYS-45; for new hire and rehire reporting, employers must now use either the updated Form IT-2104 or updated Form IT-2104-E, depending upon employee status. The Act requires only that an employer report the availability of dependent health insurance benefits–it does not require their provision to employees. As was the case before these changes, employers must submit reports to the State Director of New Hires within twenty (20) calendar days of the employer’s hiring or re-hiring of the employee. Employers are advised to coordinate with their payroll provider and review existing payroll information to determine which persons are considered employees for reporting purposes.

Bello Welsh LLP

CLIENT ALERT – Updates to Fair Credit Reporting Act Effective July 21, 2011

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Effective July 21, 2011, changes to the Fair Credit Reporting Act (“FCRA”) now require employers to disclose additional information to employees and job applicants when using credit information to make an adverse employment decision. The new disclosure requirements, resulting from the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), mandate that an employer making an adverse employment decision, based in whole or in part upon an employee’s or applicant’s credit score, disclose new information to the affected person including a numerical credit score, a range of possible credit scores, the key determinative factors of that score, and the contact information for the consumer reporting agency that created the report. The new disclosure requirements under Dodd-Frank are in addition to the existing disclosure requirements under the FCRA. Employers are advised to update their new hire and employee background check documentation to ensure it adheres to federal disclosure requirements.

Bello Welsh LLP

CLIENT ALERT – Connecticut Passes Paid Sick Leave Act

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The Connecticut Paid Sick Leave Act, which is awaiting signature by the Governor, will require employers employing 50 or more people within the state to provide qualified employees with one hour of paid sick leave for every 40 hours worked by the employee, up to a maximum of 40 hours per year. The Act, which would go into effect on January 1, 2012, applies only to service workers who are paid an hourly wage or who are otherwise not exempt from FLSA coverage. Connecticut would become the first state in the U.S. to require paid sick leave for eligible employees, following major cities including San Francisco and Washington D.C. that have passed mandatory paid sick leave legislation in recent years.

Bello Welsh LLP

CLIENT ALERT – EEOC Implements Regulations under the Genetic Information Nondiscrimination Act 01/19/11

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The federal Genetic Information Nondiscrimination Act (GINA) prohibits discrimination against employees and job applicants on the basis of genetic information. GINA also limits employers’ ability to obtain genetic information and imposes obligations for keeping such information confidential. The EEOC recently issued regulations defining “genetic information” broadly to include not only genetic testing information, but also information about the manifestation of a disease in an individual’s family. The regulations specify that employers may not intentionally “request” such information, including by:

  1. conducting an Internet search in a way that is likely to result in the obtainment of genetic information;
  2. actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; or
  3. requesting information about an individual’s current health status in a way that is likely to result in the obtainment of genetic information.

Employers may avoid liability if genetic information is obtained inadvertently, such as in response to a general health inquiry, or as a response to an otherwise lawful inquiry where the employer specified that genetic information should not be provided. Employers can take advantage of this protection by using the following “safe harbor” language in conjunction with requests for medical information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

This language should be used when:

  1. making an otherwise lawful request for documentation to support an employee’s request for reasonable accommodation;
  2. requesting medical information from an individual under the FMLA or other state or federal law relating to the employee’s request for leave or return to work;
  3. seeking documentation to support a request for leave not governed by federal, state, or local laws, as long as the request complies with the Americans with Disabilities Act and other laws limiting an employer’s access to medical information.

The regulations also set out several exceptions to the prohibition on acquiring genetic information, as well as additional guidance on maintaining confidentiality of genetic information that the employer acquires.

Bello Welsh LLP

CLIENT ALERT – Illinois Prohibits Employee Credit Checks

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The recently enacted Illinois Employee Credit Privacy Act prohibits most Illinois employers from obtaining credit histories or reports and using them in any employment decision. The law prohibits (1) inquiring about an employee’s or applicant’s credit history; (2) seeking credit reports on employees or applicants from a consumer reporting agency; (3) and discriminating against an individual with respect to any aspect of employment because of his or her credit history or credit report. Employers are still permitted to conduct background investigations pursuant to the Fair Credit Reporting Act, so long as any report does not include credit history information. Certain employers are excluded from the reach of the statute, including financial and insurance institutions, debt collection agencies, and certain public sector employers. In addition, the statute provides a limited exception for positions or groups of employees for which a satisfactory credit history is a bona fide occupational requirement.

Employers with operations in Illinois are advised to revise their hiring and background check practices immediately to exclude seeking credit histories for applicants and employees in any form, including on an employment application, in an interview, or through procurement of credit history reports.