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Archive for the ‘Wage and Hour’ Category

Paid Family and Medical Leave is on the Horizon

Posted on: May 14th, 2019 by admin

Although it was ushered in quietly, the new Massachusetts Paid Family and Medical Leave law (“PFML”), M.G.L. c. 175M, will represent a monumental change for both employers and workers. The statute will entitle qualifying workers to as many of 26 weeks of protected, paid medical and family leave. The PFML will apply not only to employees of small businesses, but in some cases, to “1099” contractors and self-employed individuals as well.

Leave Entitlements

Beginning January 1, 2021, covered workers may be entitled to (1) up to 20 weeks of paid medical leave in a benefit year if they have a serious health condition that incapacitates them from work; and (2) up to 12 weeks of paid family leave in a benefit year related to the birth, adoption, or foster care placement of a child, or because of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces; and (3) up to 26 weeks of paid family leave in a benefit year to care for a family member who is a covered service member with a serious health condition.

Further, beginning July 1, 2012, covered individuals may be entitled to up to 12 weeks of paid family leave to care for a family member with a serious health condition.

Employers must continue to make their contributions to employee health insurance during leave.

In total, leave is restricted to an aggregate 26 weeks in a benefit year.

Departures from the FMLA

The Massachusetts PFML differs from its federal counterpart, the Family and Medical Leave Act (“FMLA”), in several key aspects:

  • Leave under the PFML is paid, based on the employee’s average weekly earnings, with a maximum benefit of $850 per week, paid through the Commonwealth in a fashion similar to unemployment.

 

  • Workers’ who meet the PFML’s “financial eligibility test” (based on previous earnings) may be entitled to leave even early in their employment, in contrast to the FMLA which applies only to employees who have worked for their employer for at least 12 months, and for no less than 1,250 hours.

 

  • “Family members” is expansively defined under the PFML, as a spouse, domestic partner, child, parent or parent of a spouse or domestic partner; a person who stood in loco parentis to the covered individual when the covered individual was a minor child; or a grandchild, grandparent or sibling.

 

  • Entitlement to PMFL is determined by the Massachusetts Department of Family and Medical Leave, rather than by employers as under the FMLA.

 

  • Benefit years under the PFML are counted from the date a worker first takes leave.

Funding

The program will be funded through contributions from employees and employers. The program applies to employers of all sizes, with few exemptions. In some instances, it applies even to 1099 workers. Self-employed persons may choose to participate.

Starting July 1, 2019, employers must begin making deductions from employees’ wages to cover the anticipated benefits. Employers with 25 or more employees must contribute as well. Contributions will be remitted quarterly, and the Commonwealth will adjust benefit contributions annually.

Under narrow circumstances, an employer may attain an exemption from paying contributions. If an employer offers employees paid family leave, medical leave, or both, with benefits that are at least as generous as those provided under the law, the Commonwealth may grant an exemption.

Right to Reinstatement

Employers may not retaliate against employees who take leave under the PFML. Generally, employers must reinstate employees to their previous position or to an equal position, with the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave. The reinstatement requires does not apply to “1099” contractors.

In court, a worker who was subject to an “adverse action” (e.g., termination, pay cut, change in seniority status) within six months of returning from leave is entitled to a presumption of retaliation, that can only be overcome is the employer makes a showing by clear and convincing evidence that its motive was not retaliatory.

Enforcement

Workers who believe they have been retaliated against in violation of the PFML may bring a civil action in Superior Court within three (3) years. Prevailing workers may be entitled to reinstatement, traditional tort remedies (e.g., pain and suffering); back pay and benefits, with the possibility of treble damages; and attorneys’ fees and costs.

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for discrimination and retaliation under the Family Medical Leave Act (FMLA (29 U.S.C. sec. 2601 et seq.)), The Americans with Disabilities Act (ADA) and under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

EMPLOYER ALERT: NEW PREGNANT WORKER LAW STARTS APRIL 1ST

Posted on: January 25th, 2018 by admin

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On April 1, 2018, An Act Establishing the Massachusetts Pregnant Workers Fairness Act, (“PWFA”) goes into effect.  All employers in Massachusetts should be aware of this law.  The PWFA extends the protections of Massachusetts anti-discrimination law (Massachusetts General Laws, Chapter 151B) to pregnant workers within the Commonwealth, and grants additional safeguards for pregnant workers seeking workplace accommodations relating to their pregnancy. The PWFA specifically extends coverage for pregnancy, and related conditions, including lactation.

Essentially, the PWFA applies the reasonable accommodation standards that are used in disability cases to pregnancy, and requires employers to engage in an interactive process and to provide employees reasonable accommodations, unless doing so would impose an undue hardship on the employer. The PWFA includes a non-exhaustive list of specific accommodations that may be available to pregnant employees, including:

(1)   Time off to recover from childbirth (with or without pay);

(2)   More frequent or longer breaks (with or without pay);

(3)   Temporary transfer to a less strenuous/hazardous position;

(4)   Job restructuring;

(5)   Light duty;

(6)   Private non-bathroom space for expressing breast milk;

(7)   Assistance with manual labor; or

(8)   Modified work schedules.

The PWFA requires the need to engage in an interactive process, which is essentially a dialogue between the employee and employer concerning possible accommodations that may be available.

The PWFA also makes it illegal for an employer to: (1) retaliate against pregnant workers who seek accommodations, (2) refuse to hire an individual who may need an accommodation  relating to pregnancy or the need to express breast milk; (3) require a pregnant or lactating employee to accept an accommodation that does not enable them to perform the essential functions of their job; (4) require a pregnant or lactating employee to take a leave of absence, when other accommodations may be available; and (5) refuse to hire an individual because of her pregnancy ore related condition.

Importantly, all employers covered by the act are required to provide written notification to existing employees of their rights under the PWFA on or before April 1, 2018, and new employees at the start of their employment.

As with other violations of Chapter 151B, employers who fail to comply with the provisions set forth in the PWFA may be liable for back pay, front pay, emotional distress, punitive damages, and attorneys’ fees and costs.

 

 

Bennett & Belfort secures $1,235,000 Jury Verdict v MWRA

Posted on: January 18th, 2018 by admin

2013-david-b-photo-150x150A Suffolk County jury today awarded $1,235,000 to Richard DaPrato against the Massachusetts Water Resources Authority (MWRA). In reaching today’s verdict, the jury concluded that the MWRA deliberately retaliated against Mr. DaPrato  after 11 years of unblemished service by firing him for taking medical leave for surgery, and for requesting future leave.

Mr. DaPrato was represented by David E. Belfort of Bennett & Belfort PC of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. The jury strongly rejected the Authority’s argument that Mr. Daprato violated the public trust.  Instead, the jury found that the MWRA, a public entity, violated Mr. DaPrato’s rights to medical leave under both the Family Medical Leave Act and the Massachusetts Fair Employment Practices Act (M.G.L. 151B)

The Jury awarded Mr. Daprato $320,000 in lost pay damages, including his future pension losses, in addition to $200,000 in emotional distress damages.  The Jury issued punitive damages to deter future outrageous conduct by the MWRA in an amount of $715,000.

David Belfort said, “This decision affirms the rights of employees to request and take legally protected medical leave without being subjected to adverse action.”

The final judgment, which has not yet been entered, will also include pre-judgment interest and a petition for Mr. DaPrato’s attorneys’ fees is forthcoming.  (See Jury Verdict Slip Below)

DaPrato Verdict 1.18.18_Page_1DaPrato Verdict 1.18.18_Page_2

 

National Business Institute (NBI) Human Resource Law Seminar

Posted on: August 11th, 2017 by admin

 

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On July 12, 2017, Bennett & Belfort partner Eric R. LeBlanc spoke at the National Business Institute (NBI) Human Resource Law Seminar alongside Debra Dyleski‑Najjar, Julie A. Moore, Sarah E. Worley, Laurel M. Gilbert, Richard S. Loftus and Jeffrey S. Siegel.  Attorney LeBlanc and the other speakers shared their knowledge and perspectives on various aspects of human resource law, addressing such topics as “Updates in Employment Law;” “Discipline & Discharge- Necessary Documentation;” “Employee Handbooks & Policies;” “Wage & Benefits Issues;” “Investigating Complaints of Harassment & Other Misconduct;” and “Alternative Dispute Resolution in the Employment.”

Eric spoke about proper procedures to follow and pitfalls to avoid during all phases of the employer-employee relationship:  the hiring process, the period of employment, and the employee’s exit from employment, whether voluntary or involuntary.

Eric’s lecture touched on the following fundamentals:

A. Hiring:  How to craft a clear job description; what to look for, what to say and do, and what not to say and do how during selection and         vetting of candidates.

B. Policies and procedures:  Establishing unequivocal, written policies in the following areas and following them closely:

  1. Employment at Will
  2. Equal Opportunity
  3. Anti- Discrimination/Anti-Harassment/Reporting(including the process for investigating employee complaints of discrimination and harassment)
  4. Payment of Wages
  5. Conduct/Discipline

C. Performance:  Careful, contemporaneous documentation of employees’ job performance.

D. Termination:  Again, careful and contemporaneous documentation of the process as well as the presence of at least one witness to the employer-employee interactions.

Eric emphasized to seminar attendees that no matter how egregious an employee’s performance might be, compassion and respect are crucial elements of an employer’s stance at every point on the employment time line.

We are proud that Eric’s expertise in employment law was recognized by the National Business Institute, and pleased that he was able to contribute to employers’ understanding of practices beneficial to both sides of the employer-employee relationship.

COURT RULING OPENS DOOR TO COMMISSION PAYMENTS AFTER EMPLOYMENT ENDS

Posted on: May 15th, 2017 by admin

Massachusetts employees who earn sales commissions may have a right to recover those commissions even after the end of their employment despite company policies to the contrary, according to the recent 2017 case of Israel v. Voya Institutional Plan Services, LLC.

The Massachusetts Wage Act  applies when wages, including commissions generated by salespersons, are considered earned.  Sales commissions are considered earned when they are due and payable.  The figure that is due and payable must be ascertainable with specificity and definitely determined.  Special contracts, agreement terms, personnel policies and employment manuals that circumvent application of the Wage Act are unenforceable according to both the express language of the Wage Act and public policy.  An employee who is not timely paid earned wages may be entitled to sue for three times the amount of withheld wages, interest, plus mandatory recovery of reasonable attorneys’ fees.  The Wage act is a powerful financial deterrent to prevent employers from improperly withholding earned wages and commissions.

Scales of justice no copyright pixabay

Massachusetts Courts have not definitively ruled on whether policies that prohibit the payment of commissions after an employee’s separation are indeed special contracts that violate the Wage Act. The Israel case involved a sales representative who was compensated in part with commissions based on sales.  The employer, Voya Institutional Plan Services’ (“Voya”), maintained a commission plan that entitled certain employees to commissions roughly three months after the company received payment on a sale.  The plan also contained a provision indicating that an employee who resigned would not be entitled to commissions following resignation.

Israel resigned his employment in lieu of being terminated.  At the time of his resignation, he had roughly $30,000.00 in completed sales commissions in the pipeline – which had not been paid exclusively because of the delay between accrual and payment date.  The employer refused to pay the commissions on account of its resignation policy.

The court in Israel  ruled that Voya and Israel’s commissions contract could improperly avoid the Wage Act’s requirement that commissioned wages be timely paid once the commission sums were definitely determined.  Since the commissions had been definitely determined before the end of Israel’s employment, the commissions were due and payable regardless of the employer’s policies or those contract terms suggesting otherwise.  Voya’s adherence to its commission policy in order to deny payment of commissions to Israel was found to violate the Massachusetts Wage Act.

The Israel court determined that the Wage Act trumped an employer’s policy prohibiting the payment of post separation commissions.  As such, Massachusetts employers and commissioned employees must be attentive to the timely payment of definitely determined sales commissions even after separation in order to comply with the strict requirements of the Massachusetts Wage Act.  Should you have any questions on the developments regarding the Massachusetts Wage Act of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.

 


 

WHEN IS THE DUTY TO ENGAGE IN THE INTERACTIVE PROCESS TRIGGERED?

Posted on: March 27th, 2017 by admin

In MCAD & Amanda LaPete v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) awarded Complainant (Amanda LaPete), a woman who was terminated while on approved leave for post-partum depression, back pay plus $50,000.00 for emotional distress stemming from her employer’s disability discrimination.  Docket No. 10-SEM-02769 (Kaplan, J., February 5, 2017).

While employed by Respondent (Country Bank for Savings), Complainant was granted 17 weeks of leave to give birth, which comprised of accrued sick and vacation time, eight weeks of maternity leave (as permitted by M.G.L. c. 149, § 105D), and an additional four weeks pursuant to the federal Family and Medical Leave Act (“FMLA”).

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Complainant suffered post-partum depression while on leave and notified Respondent of her disability.  She consistently provided Respondent with updates during her leave, including a timeframe for her return to work.  Notably, Complainant fully intended to return to work with Respondent, yet her health care provider suggested she take further time off due to persistent depression and anxiety.  Complainant requested an additional four weeks of leave, however, Respondent ignored her request and terminated her employment.

The Massachusetts anti-discrimination statute, M.G.L. c.151B, prohibits discrimination by an employer based on disability.  To prove a case of disability discrimination for failure to provide a reasonable accommodation, complainant must show: (1) that she is “handicapped”; (2) that she is a “qualified handicapped person” capable of performing the essential functions of her job; (3) that she needed a reasonable accommodation to perform her job; (4) that Respondent was aware of her handicap and the need for a reasonable accommodation; (5) that Respondent was aware, or could have been aware, of a means to accommodate her handicap; and (6) that Respondent failed to provide Complainant the reasonable accommodation.  Hall v. Laidlaw Transit, Inc., 25 MDLR 207, 213-214 (2004).

In Country Bank for Savings, the MCAD Hearing Officer ruled that Complainant established sufficient evidence to prove a prima facie case of disability discrimination for failure to provide a reasonable accommodation by demonstrating that she: 1. was handicapped for purposes of the statute; 2. was qualified to perform the essential functions of her job; 3. required a reasonable accommodation; and 4. adequately kept Respondent informed of her need for an accommodation while out on leave.  The MCAD also found that Complainant’s finite request for extended leave was a reasonable accommodation so that she could cope with her post-partum depression.

The MCAD found that Respondent’s termination of Complainant without engaging in an interactive dialogue about the request for extended leave was a violation of the employer’s duty under the statute.  Importantly, the Hearing Officer stressed in her decision that an employer is not shielded from liability simply by allowing an employee leave under the FMLA.  Rather, the employer has an affirmative responsibility to engage in the interactive process when the employee is preparing to return from leave.

Notably, there was no persuasive evidence that Complainant’s request for extended leave would cause the Respondent an undue burden on its operations or finances.

This decision highlights the requirement that employers understand the timing of when their obligation to engage in the interactive process is triggered.  Though a company’s obligation is clear when an employee explicitly requests an accommodation, employers must also engage in the interactive process when they have reason to believe an employee needs a reasonable accommodation absent a specific request citing to the statute.

 

 

ATTORNEY TODD BENNETT QUOTED IN JANUARY 9, 2017 EDITION OF “MASSACHUSETTS LAWYERS WEEKLY”

Posted on: January 11th, 2017 by admin

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Attorney Todd Bennett was quoted in the January 9, 2017 edition of “Massachusetts Lawyers Weekly.”  The article entitled, “State Judge rejects federal test on meal break compensability,” concerns the Massachusetts Wage Act and the Massachusetts Overtime law.

In the underlying case, a group of security guards brought suit against their employer for failing to pay them for meal breaks, and for failing to pay them overtime.  The class of employees claimed that because during their meal breaks they were required to remain on site, in uniform, and respond to their radios, they should get paid during these breaks.  The Suffolk Superior Court (Business Litigation Session) reviewed whether or not it should apply a) the “Predominant test,” or b) the “Relief from All Duties Test” in deciding upon the employer’s motion to dismiss and to decertify the class action.  Essentially, the Predominant test asks whether or not an employee’s meal break time is spent predominantly for the benefit of the employer or the employee.  The “Relief from All Duties Test” asks whether or not an employee is relieved from all of her or his duties during the break.  In a favorable ruling for the employees, the Court applied the “Relief from Duties Test” in denying the employer’s motion to dismiss and to decertify the class.   Attorney Bennett was asked to comment on the outcome of the case, where he provided insight to the Court’s ruling.  The full article can be viewed at the following link: http://masslawyersweekly.com/2017/01/05/state-judge-rejects-federal-test-on-meal-break-compensability/

BENNETT & BELFORT WELCOMES ATTORNEY CRAIG LEVEY TO FIRM

Posted on: June 13th, 2016 by admin

 

 

Levey Craig (2)

Bennett & Belfort, P.C. is pleased to announce that Attorney Craig Levey has joined the firm.  Mr. Levey focuses his practice on employment and business matters, representing both individuals and companies.  He litigates claims of discrimination, sexual harassment, retaliation, and wage & hour disputes, as well as partnership and fiduciary duty issues.  Mr. Levey also drafts, reviews, and negotiates non-competition, non-solicitation, and severance agreements, and routinely counsels companies on all facets of the employer-employee relationship, including the drafting and implementation of company policies, procedures, and employee handbooks.

Mr. Levey has experience in a wide variety of cases in Federal, Superior, and District courts, and before administrative tribunals, including the Massachusetts Commission Against Discrimination, Department of Unemployment Assistance, and the Division of Administrative Law Appeals.

Commenting on the move, Mr. Levey said, “Bennett & Belfort offers a creative and collaborative environment to work, which is the perfect platform for me to grow my practice.  I am excited to join such a strong and determined team of attorneys, and I look forward to continuing the firm’s tradition of delivering top-notch service to its clients.”

Mr. Levey is a former associate attorney at Looney & Grossman, LLP and Davis, Malm & D’Agostine, P.C. in Boston.

OVERTIME EXEMPTION UPDATE

Posted on: May 31st, 2016 by admin

On May 18, 2016, President Obama and Secretary of Labor, Thomas Perez, announced the publication of the Department of Labor’s “Final Rule” updating the overtime regulations. This is the first update in over a decade, and will mean that certain workers are now exempt from the requirement that they be paid “overtime wages.”

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be classified as “exempt” from overtime payment. Specifically, the Final Rule makes the following significant changes to the existing regulations:

  1. Raises the standard salary level required for a full-year worker to meet the exemptions.  The level will be raised from $455 per week, or $23,660 annually, to $913 per week, or $47,476 annually;
  2. Sets the total annual compensation requirement for highly compensated employees subject to a certain test known as the “minimal duties test.” The level will be raised to $134,004 from the current level of $100,000; and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years.

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The Final Rule goes into effect on December 1, 2016. On that date, the initial increases to the standard salary level and highly compensated employees’ total annual compensation requirement will become effective. Future automatic updates to those thresholds will occur every three years based on inflation, beginning on January 1, 2020.

As a result of this rule change more employees will be entitled to receive overtime wages.  An estimated 18% of full-time salaried employees in Massachusetts will be eligible for time and a half from the new overtime provisions, while an estimated 35% of full-time salaried employees will benefit nationally from the new provisions.

Because of the strict penalties against employers (and certain individuals associated with the employers), both employees and employers must be aware of these important changes.