Martha Zackin

Form I-9 Compliance: New Guidance Issued

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By Martha J. Zackin

The Immigration and Nationality Act (INA) requires employers to verify the work authorization of employees using the Form I-9.   Some employers choose to conduct periodic internal audits of their Forms I-9, to ensure compliance.  Concerned that improperly conducted internal audits could “create barriers to employment for work-authorized individuals,” the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Civil Rights Division together published new Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

The guidance, developed by DOJ and ICE with input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission, seeks to provide employers with, among other things:

  •  information regarding the scope and  purpose of audits;
  • considerations before conducting internal audits;
  • details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and
  • guidance regarding the anti-discrimination mandate.

For further information, the DOJ’s press release announcing the guidance may be found here.

Nothing in the law or this guidance requires employers to self-audit I-9 compliance.  Those employers who choose to do so, however, should look to the guidance to help structure and implement self-audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA.

Martha Zackin

Federal Contractors and Subcontractors Must Comply with New Pay Transparency Rules

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By Martha J. Zackin

As is often reported, there is a pay gap in many of today’s workplaces between men and women, and between wages earned amongst various racial groups.   Many commentators believe that employer policies forbidding employees from discussing pay with co-workers perpetuate these wage gaps, by preventing workers from finding out if they are being discriminated against in time to act.

To narrow and, ultimately eliminate that gap, in April 2014, President Obama issued Executive Order 13665, which prohibits federal contractors and subcontractors from firing, failing to hire, or otherwise disciplining employees or job applicants who inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants.   Read more →

Martha Zackin

Update on DOL changes to FLSA White Collar Exemptions

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By Alexandra D. Thaler

As we previously reported here, the Department of Labor will soon be revising the so-called “white collar exemptions” to the Fair Labor Standards Act (FLSA).  Recently, the DOL has indicated that it now plans to issue the Final Rule in July 2016.

To recap, on June 30, 2015, the DOL issued a detailed report and proposed rule, inviting the public to submit comments through September 4, 2015.  The agency has received nearly 300,000 comments to date, underscoring the intense interest the proposed changes have garnered across diverse stakeholder groups. Read more →

Martha Zackin

NLRB Declines to Assert Jurisdiction Over Religious School

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By John F. Welsh

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 .

Read more →

Martha Zackin

Massachusetts Appeals Court Protects Staffing Companies – and their Clients

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By Martha J. Zackin

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.

In sum:

  • 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.
Martha Zackin

DOL Issues Misclassification Guidance Broadly Defining “Employee”

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By Martha J. Zackin

On July 15, 2015, the Wage and Hour Division of the Department of Labor issued guidance aimed at clarifying the distinction between “employees” and “independent contractors.”   Published as an Administrator’s Interpretation, the DOL states that in its view, “most workers are employees under the Fair Labor Standards Act” (FLSA).  The Administrator’s Interpretation also states that its analysis and the broad definition of employee it espouses also applies to certain other federal laws, specifically referencing the Family and Medical Leave Act.   Importantly, the DOL announced a “misclassification initiative,” pursuant to which it has entered into numerous memorandum of understanding with states and the IRS to combat what it perceives as a significant, nation-wide problem of misclassification that deprives workers of important protections such as minimum wage, overtime compensation, unemployment insurance, and workers’ compensation. Read more →

Martha Zackin

DOL Issues Proposed Updates to FLSA White Collar Exemptions

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By Alexandra D. Thaler

On June 30, 2015, the Department of Labor issued its anticipated update to the so-called “white collar exemptions” to the Fair Labor Standards Act (FLSA).   The proposed rule more than doubles the minimum weekly salary threshold for the application of the Executive, Administrative, Professional, and Computer Employee overtime exemptions, and ties the rate to annual data on national wages for full-time salaried employees.  The rule would increase the minimum salary for exempt employees from the current $455 per week, or $23,660 annually, to an estimated $970 per week, or $50,440 annually when the final rule issues, likely in 2016.  The proposed rule would also increase the minimum compensation required to qualify for the Highly Compensated Employee exemption, from $100,000 to $122,148 annually based on current data, also tethered to annual wage rates.  The regulations do not change the optional hourly payment method for qualifying computer employees, which would remain at $27.63 per hour and would not be tied to changes in national wage data.

While the proposed rule does not currently include changes to the duties tests that also must be met for each exemption, in its 285-page statement accompanying the draft rule, the DOL advises that it is considering possible changes to the duties tests, and invites comments on these and other aspects of the exemptions.  For example, the DOL seeks comment on whether the duties tests “are working as intended to screen out employees who are not bona fide” exempt employees, specifically, whether employees should be required to spend a minimum amount of time performing “primary duty” work, whether the single standard duties test for each category is appropriate, and whether the “concurrent duties” regulation should be modified to prevent exempt-classification of otherwise nonexempt employees.  The Department also seeks comments on various other issues relating to the exemptions, including whether the national wage data methodology is appropriate, whether employers should be permitted to credit certain payments, such as non-discretionary bonuses and commissions, toward the salary requirement, and whether any additional occupational titles or categories should be included in the regulations regarding computer and information technology sectors.

In the short term, the rule is expected to affect nearly 5 million workers who currently make less than the proposed $50,440 annual salary threshold.  Still more will be impacted by the increase in the Highly Compensated Employee salary level.  The ultimate impact of the new rule remains unclear, with some economists predicting that workers’ hours, and ultimately wages, will go down to compensate for the changes.   The DOL will accept the public’s comments on the proposed rules, which can be submitted in writing or online until September 4, 2015.  All comments are made available online at http://www.regulations.gov.

Martha Zackin

Final Regulations for Massachusetts Earned Sick Time Law

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By Emma L. Melton and Alexandra D. Thaler

Last November, voters approved a ballot initiative granting earned sick leave to Massachusetts employees. As we wrote in an earlier article, beginning on July 1, 2015, employees working in Massachusetts are entitled to earn up to forty hours of paid sick leave per calendar year. Employers with ten or fewer employees are not required to pay employees during this leave but must provide unpaid leave to their employees.

On April 27, 2015, the Massachusetts Attorney General’s Office released long-awaited proposed regulations, which we described here. After receiving many comments, both written and in the course of the six public hearings conducted across the Commonwealth, on June 19 the AGO issued final regulations implementing the Massachusetts Earned Sick Time law. Below we update our earlier advisory by summarizing the important changes from the draft regulations. Read more →

Martha Zackin

New Earned Sick Time Notice and Updated Safe Harbor Regulation

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By Alexandra D. Thaler

With just weeks to go before the Massachusetts Earned Sick Time law goes into effect on July 1, 2015, the Massachusetts Attorney General’s Office is continuing to issue guidance and documentation relevant to the law, including the required notice posting and an update to its safe harbor regulation.

The AGO’s current draft regulations provide that this Notice of Employee Rights (and not an employer-drafted alternative), must be both posted in a conspicuous location at Massachusetts worksites and distributed to employees.  The English language version of the required poster is now available here.  The AGO’s notice contains the basic outlines of the law’s requirements, including, among other things, minimal required rates of accrual and carry-over, permissible reasons for use, employee notice obligations, and contact information for the AGO (as required by the authorizing legislation).  It also reminds employees that sick time cannot be used as an excuse to be late for work, and that misuse of sick leave may result in discipline. Read more →

Martha Zackin

Supreme Court Backs EEOC in Religious Accommodation Case

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By Martha J. Zackin

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.

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