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Employment Law Clip: Internships – Paid or Unpaid? 04/14/2014

Posted by Morse, Barnes-Brown Pendleton in Employment.
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Student internships have become increasingly popular, and while internships generally benefit employers and interns alike, there is uncertainty regarding whether internships may be paid or unpaid. MBBP Attorney Christopher Perry explains the importance of distinguishing between the nonprofit and for profit sector and the regulations that apply to each:

Please feel free to contact any member of our Employment Law Group with any questions on paid or unpaid internships.

Wage & Hour Tip: Are Your Commissioned Sales Employees Entitled to Minimum Wage and Overtime? 04/01/2014

Posted by Morse, Barnes-Brown Pendleton in Employment, MBBP news, New Resources.
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Many employers use commission payments to increase the productivity of their sales force. Commissioned sales people can earn significant compensation. But, are commissioned sales people also entitled to minimum wage and overtime?  Please see our full Wage & Hour Tip of the Month to learn more.

Please feel free to contact MBBP’s Employment Law Group with any questions.

Employment Law Clip: Employee Terminations Under the MA Wage Payment Law 03/17/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment.
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Employers, there are some important aspects of the Massachusetts Wage Payment Law that you may not be aware of when firing or laying off an employee or employees. MBBP Attorney Christopher Perry explains what you need to know below:

Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.

Employment Law Clip: Pitfalls of Using Independent Contractors 03/03/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment.
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Many businesses use “independent contractors” to augment their regular workforce. They see advantages to using trained, non-employee workers with specialized skills who can provide needed services on a short-term or long-term basis. However, the ability of businesses to classify workers as independent contractors is not unchecked. Businesses cannot avoid employer obligations simply by designating certain workers as independent contractors.

In this video Massachusetts Employment Lawyer Robert M. Shea discusses the serious danger that independent contractors can pose to a business when they do not comply with government and tax laws and are misclassified as such:

Want more information? Try some of our other resources on this topic:

Please feel free to contact any member of our Employment Law Group with any questions on independent contractor laws.

MBBP’s Employment Law Clip Series will provide quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Wage Payment Laws: Termination.

Retaliation Once Again Is the Top Type of Claim Filed with the EEOC 02/24/2014

Posted by Morse, Barnes-Brown Pendleton in Employment.
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Employment Attorney Bob SheaBy: Bob Shea

The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2013 and for the fourth straight year charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 41.1% of the charges filed with the EEOC, up three percent from 2012. Retaliation was followed by race discrimination (35.3%), gender, including sexual harassment and pregnancy discrimination (29.5%), disability discrimination (27.2%), and age discrimination (22.8%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2013 can be found here.

For more information on this topic please contact any member of our Employment Law Group.

Bob Shea to Moderate SBANE Panel Discussion on Non-Competes 02/07/2014

Posted by Morse, Barnes-Brown Pendleton in Employment, Events.
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Employment Attorney Bob SheaOn March 6th the Smaller Business Association of New England (SBANE) is presenting a program titled Should Employee Non-Competes Be Banned? Business Forum on Proposed Limits to Non-Competes in Massachusetts. Many businesses require employees to sign non-compete agreements as a condition of employment. Some critics, however, believe the use of non-competes has been abused and should be regulated by statute. MBBP Employment Attorney and SBANE Chair, Bob Shea, will moderate a panel discussion that will include a leading sponsor of proposed non-compete legislation, a Patrick administration point person on the non-compete issues, and business executives. The program will give attendees an opportunity to express views and concerns of businesses regarding the proposed limits and to participate in a serious discussion over how the Commonwealth should proceed on this hotly debated issue.

To learn more or to register for this event, please visit SBANE.

If you have questions on non-competes, please feel free to contact Bob directly or visit our Employment Resources page.

Can you deduct from an Employee’s Pay for a Snow Day? 02/06/2014

Posted by Morse, Barnes-Brown Pendleton in Employment.
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This winter’s polar vortex and its seemingly unending supply of snow and cold raise the question of how to pay exempt and non-exempt employees when an office closes due to inclement weather, and whether deductions from pay for those closures are permitted.

Can you deduct when the office is closed due to weather?

When an employer is forced to close its business for a full day due to weather conditions, the federal Fair Labor Standards Act (“FLSA”) does not require that the employer pay non-exempt employees for that day, even if they were scheduled to work, since the employees are unable to provide any work for that day.

The employer may not, however, take a deduction from an exempt employee’s salary for an inclement weather closure without risking the loss of the employee’s exempt status. (N.B., though, that if the closure lasts for one week or more, then the employer does not need to pay the exempt employees for that week).

Can you deduct when the office is partially closed due to weather?

Although federal law does not require that employers pay non-exempt workers during a partial closure, in some circumstances Massachusetts law may. If a Massachusetts non-exempt employee reports to work but there is no work to be performed, or there is less work than the employee was scheduled to perform, the employee is entitled to “reporting pay” of at least three hours pay at the minimum wage. For example, if the office is closed but an employee wasn’t aware of the closure and reports to work, or if the office closes early because of inclement weather, then a Massachusetts non-exempt employee is entitled to reporting pay.

If the employer’s office is closed for only part of the day due to inclement weather, the employer cannot make a deduction from an exempt employee’s salary without losing the employee’s exemption.

Can you deduct when the office is open but the employee is absent due to weather?

The rules shift slightly when the employer remains open for business but an exempt employee is unable to make it into work due to inclement weather.

Nothing changes in this situation for a non-exempt employee; a non-exempt employee does not need be paid for hours not worked, and so an employer may make a deduction for a weather-related absence.

However, the usual rule that an employer cannot deduct from an exempt employee’s wages without risking the loss of the employee’s exemption changes in this situation. The U.S. Department of Labor (“DOL”) has advised that when an office is open, but an exempt employee is absent due to inclement weather, the Department of Labor will treat the absence as one for “personal reasons” and the employer may deduct that day’s wages from the employee’s salary without losing the employee’s exemption.

Note, however, that this loophole only applies if the exempt employee takes the entire day off for weather-related reasons. An exempt employee who chooses to leave an hour or two early to get a jump on weather-related traffic should not have a deduction taken – to do so would risk the loss of the exemption.

For more information on how to pay exempt and non-exempt employees when an office closes due to inclement weather, please contact a member of the Employment Law Group.

NLRB Abandons Notice Posting Requirement 01/09/2014

Posted by Morse, Barnes-Brown Pendleton in Employment, New Resources.
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January 2, 2014 was the deadline for the National Labor Relations Board (NLRB) to file a petition with the U.S. Supreme Court to review the appellate court decisions. The NLRB chose not to file a petition, thus effectively abandoning the notice posting requirement. (Note that this does not impact the requirement under Executive Order 13496 that non-exempt federal contractors and subcontractors post a notice informing employees of their NLRA rights.) The NLRB’s website now notes: “Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the [NLRA]. However, employees are free to voluntarily post the notice.”

For more information on what this means for employers, please see the full Alert.

If you have any questions, please feel free to contact a member of MBBP’s Employment Law Group.

Noncompetition Agreements: Protecting Customer Relationships & Confidential Information 03/20/2013

Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Events, Legal Developments.
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On Tuesday, April 23rd MBBP is hosting a complimentary breakfast program titled “Noncompetition Agreements: Protecting Customer Relationships & Confidential Information“. Employers often ask: “Are our non-compete agreements with employees enforceable?” The answer often depends on whether the employer took the necessary steps to put an effective agreement in place. Courts in Massachusetts generally will enforce reasonable agreements when necessary to protect particular employer interests, such as customer relationships and trade, from misappropriation. On the other hand, courts generally do not enforce non-compete (or non-solicit and non-disclosure agreements) when no real protectable interests are at stake, the restrictions are unreasonable, or the employer has undermined its ability to enforce them.

This Program will identify the steps employers can take to increase the likelihood that a court will enforce its restrictive agreements with employees, provide education and insight into how such agreements are enforced by employers, and de-mystify the litigation process. We will also review recent legal developments that may affect whether the agreements you currently have in place with employees are vulnerable to attack by departing employees.

Our presenters have decades of experience advising employers and litigating cases in this area and we expect that attendees will bring a wealth of knowledge and experience to the program. Through discussion, we expect a very enlightening exchange of practical ideas and a range of employer experiences.

Please visit our event page for more information or to register.

New Regulations Require Use of Updated FMLA Poster by March 8 03/04/2013

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Bob SheaThe U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations which take effect on March 8, 2013. Most of the changes in the regulations relate to the FMLA’s military leave provisions and the Airline Flight Crew Technical Corrections Act. The regulations require covered employers to post a new, updated poster by March 8. The new poster is available on the DOL’s web site.

The new regulations also make some relatively small changes and clarifications in others areas, including how employers should calculate increments of intermittent FMLA leave. The Department of Labor provides a side-by-side comparison of the prior regulations and the new regulations here.

If you have questions or want more information on the new regulations, you can contact Bob Shea.

Wage & Hour Tip: Understanding the Frequency of Payment Rules 02/26/2013

Posted by Morse, Barnes-Brown Pendleton in Employment, MBBP news, New Resources.
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Did you know that an employer who does not pay its non-exempt employees every two weeks may technically be violating Massachusetts law? Read February’s Wage & Hour Tip for more information on payment rules.

Please feel free to contact MBBP’s Employment Law Group with any questions.

New Proposed Massachusetts Non-Compete Legislation Focuses on Duration of Restrictions 02/12/2013

Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Legal Developments.
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Employment Attorney Bob SheaBy: Bob Shea

Over the past several years legislators in Massachusetts have filed various bills seeking to address perceived employer overreaching in the area of non-competition agreements. According to the legislators, many employers impose non-compete restrictions on employees in circumstances where such restrictions are not appropriate, or impose restrictions that go beyond what might be necessary to protect legitimate business interests (i.e., customer good will, trade secrets and other confidential business information).

Recent bills introduced by Representative (now Senator) Will Brownsberger and Representative Lori Erlich addressed non-compete issues in a fairly comprehensive way, attempting to codify, clarify, and modernize existing common law in Massachusetts. The bills met opposition by some business groups which viewed the bills as trying to place unacceptable limitations on the legitimate use and scope of non-compete restrictions. Although the bills garnered some support, including from employee advocates, the Governor’s office and some journalists, the legislators’ efforts were unsuccessful.

This year, Sen. Brownsberger and Rep. Erlich have presented a bill that focuses only on the duration of non-compete restrictions. The bill, House Bill No. 2221, referred to as “the Noncompetition Agreement Duration Act,” seeks to create a presumption that a non-compete restriction lasting up to six months is reasonable in duration, whereas a non-compete restriction lasting more than six months is presumed unreasonable in duration. The bill provides that a non-compete agreement that is determined by a court to be unreasonable in duration shall be unenforceable.

The bill provides for three exceptions: a non-compete agreement of unreasonable duration will not be unenforceable if (i) the employee has breached a fiduciary duty to the employer, (ii) the employee unlawfully took the employer’s property, or (iii) the employee has received $250,000 in annual taxable compensation from the employer. When one of these exceptions applies, a court could enforce the non-compete agreement for any duration the court determines is appropriate.

We believe the bill will face strong opposition, and its prospects for passage are, at best, uncertain.

If you have questions or want more information on this proposed legislation, you can contact Bob Shea.

MA Employers Should Review Employee Release Language 02/06/2013

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Bob SheaBy: Bob Shea

As we reported in December, in Crocker v. Townsend Oil Company, Inc., the Massachusetts Supreme Judicial Court (“SJC”) provided important guidance to employers concerning releases by employees of claims under the Massachusetts Wage Act, M.G.L. c. 149. The SJC stated in Crocker that a release of claims under the Wage Act will be enforceable only when the release is stated in “clear and unmistakable terms.” The release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.

In light of the Crocker decision, employers in Massachusetts are wise to review the release language contained in their forms of employee separation agreement to ensure that language meets the standard set forth by the SJC.

For any questions on this topic, feel free to contact any member of the Employment Law Group.

Retaliation Again Is the Top Claim Filed with the EEOC 02/04/2013

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Bob SheaBy: Bob Shea

The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2012 and for the third year in a row charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 38% of the charges filed with the EEOC, up one percent from 2011, followed by race, gender, age and disability discrimination. Last month, MBBP’s Employment Law Advisor focused on this dangerous area of employment law and outlined steps employers should take to reduce their legal exposure. January’s Employment Law Advisor is found here.

Please contact Bob Shea with any questions on this topic.

Supreme Judicial Court Rules on Releases of Wage Act Claims 12/19/2012

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Scott ConnollyBy: Scott J. Connolly

The Massachusetts Supreme Judicial Court (SJC) issued an opinion this week in Crocker v. Townsend Oil Company, Inc., a case that offers important guidance to employers concerning releases by employees of claims under the Massachusetts Wage Act.

A release of Wage Act claims will be enforceable, the SJC held, only when such an agreement is stated in “clear and unmistakable terms.”  In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act that the employee is waiving.

Crocker underscores the importance for employers of proceeding carefully when paying employees extra compensation, such as severance pay, at the time of termination to obtain releases of claims under the Massachusetts Wage Act.

Click here to view the full article.

Massachusetts Continues Its Efforts Against Independent Contractor Misclassification 12/11/2012

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Bob SheaBy: Bob Shea

Massachusetts Governor Patrick’s administration recently announced that it is launching a first-of-its-kind study to examine the scope and financial cost of the Commonwealth’s “underground economy.” Over the next year the study will seek to identify the extent of “employment fraud” by industry category and attempt to determine the amount of money the Commonwealth is losing each year in unpaid taxes. The study will focus on the practice of improperly misclassifying workers as independent contractors, which allows businesses to avoid wage law requirements, unemployment and payroll taxes, and workers compensation insurance and health insurance costs.

Further, the Executive Office of Labor and Workforce Development (“EOLWD”) announced that its Department of Unemployment Assistance (“DUA”) concluded audits of three business that uncovered $11.5 million in unreported wages, 2,300 misclassified workers, and $2,554,000 in unpaid DUA obligations. DUA credited the Joint Task Force on the Underground Economy and Employee Misclassification (“JTF”) with helping “to bringing the businesses into compliance.” The JTF was established by Governor Patrick in 2008 to coordinate multiple state agencies’ efforts attacking worker misclassification. Please visit MBBP’s resources page to read an article concerning the problems that changes in Massachusetts independent contractor have caused for many businesses.

Feel free to contact Bob Shea with any questions on this topic.

MBBP Obtains Successful Non-Compete Ruling 10/23/2012

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment, Legal Developments.
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Employment Attorney Christopher PerryLast week, MBBP Employment Attorneys Chris Perry and Maura Malone successfully opposed a motion for preliminary injunction to enforce restrictive covenants against three sales executive clients based on the material change doctrine. In Akibia, Inc. v. Jeffrey Hood, Ryan Gavigan and Charles Krueger (Mass. Super. Ct. 10/9/2012), Judge Jeffrey A. Locke ruled that the non-compete agreements each former employee had signed at Akibia were likely voided by material job changes that included Labor and Employment Attorney Maura Malonepromotions, demotions, increases and decreases in compensation, changes in responsibilities and sales territories, and changes in the employer’s sales strategies and product offerings. As such, Judge Locke denied Akibia’s motion to prevent Hood, Gavigan and Krueger from working for their current employer, IOvations. Judge Locke did not address language in the three employees’ non-compete agreements, which stated that their obligations under the non-compete would continue regardless of any job changes, plainly implying that such language did not influence his case analysis.

Please visit our practice page to learn more about our employment group.

Wage & Hour Claims: What Employers Can Do to Avoid Them 09/21/2012

Posted by Morse, Barnes-Brown Pendleton in Employment, Events, Legal Developments.
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On Wednesday, November 14th MBBP’s employment practice is holding an informational seminar on wage and hour claims and what employers can do to avoid them. Wage and hour claims across the U.S. are at an all-time high. The laws governing the payment of wages, overtime pay, vacation pay, compensable working time and commissions, and the use of independent contractors, have become a leading source of employee claims and employer liability. Mistakes can be very costly because penalties in Massachusetts include mandatory treble damages and attorneys’ fees, as well as potential civil and criminal liability for individual corporate officers. Unfortunately for businesses, the rules in this area of the law are not always clear and misconceptions abound. Well-intentioned and otherwise law-abiding businesses are increasingly facing wage-related government investigations and employee lawsuits.

In this seminar MBBP will identify the most common wage and hour challenges and employer misconceptions. We will review the governing rules and offer guidance and tips to help your business avoid unlawful pay practices and reduce employee wage claim risks.

For more information, directions, or to register, please visit the event page: Wage & Hour Claims: What Employers Can Do to Avoid Them.

New Massachusetts Law Creates Wellness Program Tax Incentives for Employers 08/29/2012

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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Employment Attorney Bob SheaBy: Bob Shea

Massachusetts has enacted legislation that, effective January 1, 2013, gives employers an annual tax credit of up to $10,000 for implementing wellness programs for their employees. The wellness program tax credit is part of broader legislation entitled “An Act Improving the Quality of Health Care and Reducing Costs through Increased Transparency.”

The law acknowledges that “wellness programs implemented by business have resulted in both savings to their premiums as well as overall savings to the cost of health care,” and states that the goal of the tax credit “is to provide smaller businesses with an expanded opportunity to implement these programs.” The law offers employers a tax credit of 25% of the costs associated with implementing a wellness program, up to $10,000 per year. Employers can apply the credit to taxes owed to the Commonwealth. Further, employers can carry over and apply to their tax liability in future years any wellness program costs that exceed the $10,000 per year cap. The Massachusetts Department of Public Health will be issuing regulations specifying how employers can ensure that their wellness programs qualify for the tax credit.

For any questions on this topic, please feel free to contact Bob.

A Guide to Employment Applications in MA 07/16/2012

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments, New Resources.
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Some employers view employment applications as simple, standard forms used to obtain only basic background information from job candidates. Others see them as a tool to obtain more extensive information used to evaluate and potentially screen out prospective employees. Massachusetts employers need to know that there are some very specific requirements regarding both what must be contained in application forms and what is prohibited. Further, we believe employers also should use employment applications to establish and protect employer rights.

What may be asked in an employment application is heavily regulated. Read this edition of the Employment Law Advisor to learn how you can use employment applications to establish and protect your legal rights. And of course, we’re always here to help – feel free to contact a member of our Employment Team!

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