Twins Mean Twice the Leave

This question about Maternity Leave came from one of my Massachusetts HR HelpLine clients. The answer applies to Massachusetts’ companies only, but everyone will find the interpretation of the law interesting, to say the least.

Client Question: One of our employees is pregnant with twins and is expected to deliver in September. She told us her doctor is concerned about her high blood pressure and may want her to begin her leave in June. How much leave will she be entitled to?

Answer: This is a bit complicated because we must consider both the federal Family and Medical Leave Act (FMLA) and the Massachusetts Maternity Leave Act (MMLA). (Note: this employee met all the eligibility requirements for both leave laws)

If the doctor puts her out on leave for the high blood pressure in June, she would qualify for a FMLA leave because she has a serious health condition, high blood pressure. She would be entitled to a maximum of 12 weeks unpaid leave. Potentially, if the condition did not improve she could be out until the birth of the child in September, exhausting her entire FLMA leave.

Upon the birth of the twins, she would now be entitled to leave under the Massachusetts Maternity Leave Act.  Massachusetts’ law provides 8 weeks of maternity leave for giving birth. However, the Massachusetts Commission Against Discrimination (MCAD) has ruled that an employee who gives birth to twins has given birth two times and is entitled to eight weeks of leave for each child or 16 weeks in total.

So this employee may be eligible for 12 weeks of FMLA for her serious health condition, plus 16 weeks of MMLA leave for the birth of her twins, or a total of 28 weeks of unpaid leave.

If you need expert advice on employee issues, call the HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee and organizational issues. To learn more, click here.

 

On-Call Time: Must I Pay?

If an employee is “on-call” away from the worksite, must he be compensated for his time? That’s the question I received on my HR HelpLine from a Massachusetts client. Massachusetts and federal law are the same when addressing on call pay (Readers should check their state laws or contact me).

In this situation, the employee, who was an hourly, non-exempt employee, was on-call, had to be accessible via his cell phone and if called in, had to be able to get to work within 45 minutes. Under the Fair Labor Standards Act, if an employee is not required to be on premise or to remain in close approximation such that he could not do any other activity, then the time “on-call” is not compensable.

But in this specific case, the employee had to remain within 45 minutes of the facility, was he therefore tethered to work? No, as his normal commute to work was less than that time. In addition, while on-call he was allowed to do anything he chose.

If he was either required to remain on site to wait for a call (“waiting to be engaged”), similar to a fire personnel waiting for an alarm, or required to remain at his home waiting for the call there, he would have to be compensated. This was not the case presented. In this case, the employee did not have to be compensated until or unless he was called into work (as it turns out the employer will provide a on-call stipend to incentive the employee).

 The specifics of the law reads: Federal law: § 785.17   On-call time employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))

 If you have an employee or organizational question, contact the HR HelpLine.

Surveillance Cameras: Can I Watch My Employees?

Can you legally install cameras in the workplace if you suspect employees are stealing? That’s the question posed to me by one of my clients.

While in some cases installing video cameras may be legal, employers should first check their respective state laws. In this case, the client is in Massachusetts.

The Courts have ruled differently depending on the circumstances of the situation, so employers should be careful in doing this. What is clear, is one can never install cameras in areas where anyone can reasonably expect privacy. Those areas include restrooms, lockers, showers, etc.

So what should an employer do when considering using hidden surveillance equipment? Well, in all cases like this, it is always smart to consult with a labor attorney first.

Secondly, cameras can never be installed in an area where individuals can reasonably expect privacy. And third, you should have as one court stated a “legitimate interest in the efficient operation of the workplace.” In other words, don’t do it because you’re simply curious about what’s going on.

With that said, here are some other things you should do:

1. Tell employees in advance that the video monitoring will be occurring. Put it in your handbooks and discuss in employee meetings.
2. Tell employees where the cameras would operate. Note how banks and stores warn you with signs upon entering.
3. Do not record any sound—the Courts prohibit this.
4. Finally, never have a camera focused on one person.

It is unfortunate that employers even have to consider these options. That said, you might want to explore other options first. But if you opt to use cameras, make sure you comply with your state labor laws.

 If you need some help, contact my HR HelpLine.

Medical Marijuana Law

MUST MASSACHUSETTS EMPLOYERS NOW MAKE EXCEPTIONS TO THEIR POLICIES ON ILLEGAL DRUG USE?

(This guest post was written by the labor attorneys at Mirick O’Connell)

Massachusetts recently became one of a number of states that have laws permitting the use of marijuana for medical purposes.  The Law for the Humanitarian Medical Use of Marijuana (the “Medical Marijuana Law”) that passed as a ballot initiative in Massachusetts on November 6, 2012, exempts individuals with qualifying medical conditions from penalties imposed under state law for the use of marijuana.

Are Employers Required to Accommodate Applicants and Employees Who Use Medical Marijuana?

Most employers have policies or practices which prohibit the possession, use and distribution of alcohol and illegal drugs in the workplace.  In light of the Medical Marijuana Law, must Massachusetts employers now permit their employees to possess and use medical marijuana at work? 

Voting: Some States Require Employee Time Off To Vote

November 6 is election day and many of your employees will want to vote. You should know that some states have enacted laws requiring employers to allow employees time off to vote, sometimes with pay, subject to the individual’s hours of work and the times when the polls are open. In some states, employers are required to post notices in advance of an election, advising employees of their rights. Violation of many of these statutes is a misdemeanor punishable by a fine.

Different states have different requirements. Here the requirements in the seven states in the Northeast:

Connecticut: No specific laws requiring time off.

Maine: No specific laws requiring time off.

Massachusetts: Employers are required to grant an employee time off to vote during the first two hours after the polls open, if the employee requests time off during that period. Only those who are employed in a “manufacturing, mechanical, or mercantile establishment” are eligible for time off under this provision. Time off for voting need not be paid.

New Hampshire: None, but if a person must be physically present at work or in transit to and from work from beginning to end of polling hours, she may apply to vote by absentee ballot.

New York: Employees who do not have 4 consecutive non-working hours between polls opening and closing, and who do not have “sufficient” non-working time to vote, are entitled to up to 2 hours paid leave to vote. Employees must request the leave between 2 and 10 days before Election Day. The employer can specify whether it be taken at beginning or end of shift. Employers must post this rule conspicuously 10 days prior to election.

 Rhode Island: No specific laws requiring time off.

Vermont: No specific laws requiring time off.

Employers may want to post voting times for employees and state laws for covering absentee ballots.

 Rick Dacri

Dacri & Associates, LLC

MEAL BREAK VIOLATIONS CAN BE COSTLY UNDER MASSACHUSETTS LAW

(This guest post was written by attorneys from Mirick O’Connell)

The Massachusetts Attorney General’s Office recently entered into a settlement with the Gymboree Corporation related to allegations that Gymboree had been violating the Massachusetts Meal Break statute, M.G.L. c. 149, § 100. Pursuant to the settlement, Gymboree is required to pay $130,000 to current and former employees of the corporation and $320,000 in penalties to the Commonwealth of Massachusetts for meal break violations. In addition, $13,600 is to be set aside to update company policies to ensure compliance with the Meal Break law on a going forward basis.

The Meal Break statute requires that all employees receive a 30-minute meal break after six hours of working. The break may be unpaid, but employees must be permitted to leave the workplace during the break. If an employee is either prohibited from leaving the workplace or is required to do any work during his or her meal break, the meal break must be paid.

Employers often inadvertently violate the Meal Break statute as a result of payroll systems that automatically deduct for meal break periods, even when employees choose to work through the meal break on their own. Under such circumstances, the employer is liable for a failure to pay wages for the meal break. Further, such violations expose the employer to potential claims for treble damages and attorney’s fees under the Massachusetts Payment of Wages statute.

Employees, however, may voluntarily waive their right to a meal break. To do so, employers should have employees sign written waivers clearly demonstrating that the employee voluntarily waived his or her right to a break.

In light of the significant monetary exposure that can result from a failure to strictly follow the Meal Break statute, employers are well-advised to audit their current practices to ensure meal breaks are provided for all employees who work in excess of six hours, written waivers are used for employees who voluntarily choose to waive the meal break period, and in circumstances in which employees are either required to remain on the work premises during their meal break or conduct any level of work during the meal break, such employees receive pay for that break period.

Criminal Record Law Requirements in Massachusetts Become Effective May 4

(Guest blog written by Attorney, Rachel Reingold Mandel of Ogletree Deakins)

 Significant changes to Massachusetts criminal record laws implemented by the Massachusetts Criminal Offender Record Information Reform Act will become effective on May 4, 2012. The law, which was passed in August 2010, has become well known for its “ban the box” provision that prohibits most employers from asking about an applicant’s criminal history on an initial written application. Other significant portions of the law will go into effect on May 4, further affecting the process through which employers obtain criminal background information about job applicants. Some of the changes specifically affect criminal offender record information obtained from the state (known as “CORI”), and other changes affect any criminal record information obtained by employers in the process of making decisions regarding employment.

Employment-Related Changes Effective May 4, 2012

• In connection with a decision regarding employment, prior to questioning an individual about his or her criminal history, an employer in possession of the individual’s criminal record information must provide the individual with the criminal history record in the employer’s possession, regardless of the source from which it was obtained.
• If the employer makes an adverse decision on the basis of an individual’s criminal history, the employer must provide the individual with a copy of the criminal record information in the employer’s possession, regardless of the source from which it was obtained (however, if the employer already gave the individual a copy of the record prior to questioning, the employer does not need to provide an additional copy in connection with an adverse decision).
• An employer that annually conducts five or more criminal background checks, regardless of the source from which it obtains the criminal record information, must maintain a written CORI policy. The law requires that the policy include certain provisions, including that the employer will: (i) notify the applicant of the potential adverse decision based on criminal record information; (ii) provide a copy of the individual’s criminal history information and the employer’s policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record.
• CORI may only be shared with individuals within the employer’s business with a need to know the information. In addition, employers must maintain a dissemination log for a period of one year following the dissemination of an individual’s CORI, including: (i) the name of subject; (ii) his or her date of birth; (iii) the date of the dissemination; (iv) the name of person to whom it was disseminated; and (v) the purpose for the dissemination.
• Employers that make decisions within 90 days of obtaining CORI directly from the state may not be held liable for negligent/discriminatory hiring practices by reason of reliance on CORI (there is currently no such statutory protection for employers using information from private background check companies).

New System for Accessing Criminal Information

In addition to the changes regarding employment-related decisions, effective May 4, 2012, the process for obtaining CORI through the Commonwealth of Massachusetts also will change. Previously, only certain employers that regularly have contact with vulnerable populations were able to access the Massachusetts database containing CORI. As of March 12, 2012, the Department of Criminal Justice Information Services (DCJIS) stopped accepting applications for CORI access, because DCJIS anticipates that beginning on May 4, 2012, a new system, iCORI, will become available to all employers. Once they have registered, employers will be able to access iCORI records for any individual who has signed an acknowledgement form. Employers should be aware, however, that they must retain the acknowledgement forms for at least one year from the date of the iCORI request. In addition, employers may not retain iCORI records for more than seven years after an employee’s last date of employment or the date of the decision not to hire an applicant.

Regulatory Guidance Not Yet Available

Although the new law requires that DCJIS issue regulations to assist in the implementation of these sweeping changes, DCJIS has not yet issued such regulations. Ogletree Deakins will issue another update outlining any new requirements contained in those anticipated regulations.

Practical Steps for Employers

Employers that conduct background checks on employees or applicants in Massachusetts should review and update their policies and practices to ensure they are in compliance with the new changes to the law. Practical steps to take include:

• Employers should confirm that they have not included any questions regarding criminal history on any initial employment application completed prior to an interview.
• If employers conduct five or more background checks per year, they must implement a written CORI policy that complies with the new law.
• If applicants and employees’ CORI is obtained, employers must maintain the necessary dissemination log.
• Although the statute is not clear on this point, we recommend that employers provide any applicant whose criminal history will be checked with a copy of the employer’s CORI policy, notification that the employer may make an adverse decision based on criminal background information, and a copy of the DCJIS document containing information concerning the process for correcting a criminal record.
• Prior to questioning an applicant about his or her criminal background, the employer must provide the applicant with a copy of the criminal record information in the employer’s possession.
• If making an adverse decision based on an applicant’s criminal background, the employer must provide the applicant with a copy of the criminal record information in the employer’s possession, along with notification that the employer is making an adverse decision and, if the employer has not already done so, provide the applicant with its CORI policy and the DCJIS document containing information concerning the process for correcting a criminal record. In addition, employers are advised to give applicants a reasonable opportunity to respond to the criminal record information before finalizing the adverse decision.
• Staffing personnel and hiring managers should be trained so that they understand what can and cannot be asked of applicants regarding their criminal records and background, and when the questions may be asked. Specifically, staffing personnel and hiring managers should be aware that they are prohibited from requiring an applicant or employee to disclose: (i) arrests that did not result in conviction; (ii) first misdemeanor convictions for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace; and (iii) convictions for misdemeanors where the date of conviction or the completion of incarceration (whichever is later) occurred five or more years from the date of the application (unless there was an intervening conviction). Staffing personnel and hiring managers also should understand that they are never permitted to require an individual to provide a copy of his or her own CORI.
• Employers should ensure that all practices and policies comply with DCJIS regulations, when issued.

Discrimination Laws: Massachusetts Protects Gender Identity

(This post was written by attorney Karen Aframe of Bernstein Shur)

Effective July 1, 2012, “gender-identity” will become a protected status under Massachusetts anti-discrimination laws. This means that private employers with at least six employees in Massachusetts, even if headquartered elsewhere, will be prohibited from considering gender identity when making decisions regarding hiring, promotion, termination, or any other terms and conditions of employment. The new law also prohibits harassment on the basis of gender identity.

The Massachusetts law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” As a result, this statute will protect persons who have undergone sexual reassignment surgery, as well as persons who behave or appear in a manner that is not traditionally associated with the person’s physiology or sex at birth.

Employers familiar with Massachusetts anti-discrimination law may wonder if this is actually a change in the law; in 2001, the Massachusetts Commission Against Discrimination ruled that sex discrimination included discrimination on the basis of gender identity and gender expression. While some Massachusetts courts issued similar decisions or found protection for transgender persons on the basis of disability or sexual orientation, other courts have declined to do so. The new statute clears up any confusion in the court cases. Massachusetts now joins Maine, Vermont, Connecticut and Rhode Island and 11 other states and the District of Columbia which provide workplace protection to transgender and transsexual persons.

While New Hampshire has not enacted similar legislation, New Hampshire law suggests that transsexualism is protected by N.H. RSA 354-A. At least one New Hampshire court held that transsexualism is a protected “handicap” under the state discrimination law, N.H. RSA 354-A. Thus, employers with New Hampshire employees also should adopt practices to avoid discrimination and prohibit harassment of trans-gendered and transsexual persons to avoid potential litigation. In light of these developments, employers with employees in any New England state, other than New Hampshire, should update their equal employment opportunity and harassment policies to make sure that they include gender identity and/or gender expression as a protected status. All New England employers should consider the impact of these developments on other employment practices such as dress codes, access to bathrooms and reasonable accommodations. Employers who learn of an employee’s transgender status, even through a simple application question such as “other names used,” will need to take precautions to ensure that gender identity is not considered in the hiring process, just as employers have learned to do with age, race, religion and any other legally protected status.

Massachusetts Superior Court Judge Reads Wage Act Expansively to Include Severance Pay

(Written by John Duke of Seyfarth Shaw’s Wage & Hour Litigation Practice Group)

A Massachusetts Superior Court recently held for the first time that severance payment are “wages” covered by the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148 et seq. In Juergens v. MicroGroup Inc., Albert Juergens alleged that his employer, MicroGroup, promised to pay him six months salary in severance if he was terminated without cause. A couple of years later, MicroGroup informed Juergens that his position was being eliminated and laid him off without paying the promised severance.

 Juergens sued MicroGroup alleging that MicroGroup violated the Wage Act by not paying him severance upon his termination. MicroGroup moved to dismiss the claim, relying on the Massachusetts Appeals Court’s decision in Prozinski v. Northeast Real Estate Services, LLC, which held that severance payments were not “wages” under the Wage Act. With little analysis other than pointing out that the Prozinski decision had issued before the Supreme Judicial Court had “authorized a more expansive interpretation of the Wage Act,” the court held that the definition of “wages” under the Wage Act should “not be limited to exclude severance pay” and denied the motion to dismiss.

 While Massachusetts courts have long held that employees may assert contract claims against their former employers based on severance agreements, this is the first time a Massachusetts court has held that severance agreements are subject to the Wage Act. Employers should be concerned about the Juergens decision because, if other courts were to follow it, it would open up the full panoply of Wage Act remedies for an employer’s failure to pay severance, including treble damages and attorneys’ fees.