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Posts Tagged ‘Employment Law’

Proposed Revisions to Massachusetts’ Paid Family and Medical Leave Regulations

Posted on: June 1st, 2020

By: Janet Barringer and Zinnia Khan

The Massachusetts Department of Family and Medical Leave (“DFML”) recently issued to the public proposed revisions for Massachusetts’ paid family and medical leave program.  In its release, DFML issued a markup of proposed revisions to the regulations governing the program.  While the proposed revisions are not yet enacted, reviewing the proposed changes is helpful for employers and employees to see where the paid benefit is likely headed.  The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m.  Prior to this hearing, interested parties are invited to submit comments directly to DFML.  The link to submit comments directly to DFML is here.

The Paid Family and Medical Leave Law (“PFML”) allows covered individuals to use paid leave for several reasons including (i) bonding with a child after birth or adoption,(ii)  relating to necessities for a family member’s active duty or call to duty in the Armed forces, (iii) caring for a family member who is a covered service member or (iv) caring for the individual’s own health condition.  Beginning on July 1, 2021, eligible individuals will also be able to use paid leave to care for a family member’s serious health condition.  Employers in Massachusetts are presently subject to a payroll tax as a means to fund the PFML, though benefits are not expected to become available until January 1, 2021.

The DFML’s proposed regulations are subject to further change pursuant to the required public hearings and comment period.  Still, due to the impending impact on employers and employees when enacted, examining some of the significant proposed revisions is worthwhile:

  • Definitions: the DFML has included new definitions for several key terms and updated the definitions of terms already defined in the prior regulations such as what constitutes accrued leave, when an application for benefits can be considered to be complete and the duration of an employee’s leave which is protected under the PFML. 
  • Optional Coverage for Otherwise Ineligible Employers: the proposed changes provide an avenue for employers who would otherwise not be covered by the law (such as municipalities, political subdivisions, housing authorities, or charter schools) to become a covered employer for a minimum term of one year.
  • Private Plan Exemptions: the marked-up regulations go into greater detail on how covered employers may request an exemption because they offer paid family and/or medical leave to employees through a private plan.
  • Application for Benefits: the DFML proposes new notice requirements for employees applying for benefits under the PFML, including new notice requirements stating employees must give at least 30 days’ notice to their employer of the anticipated start date of the paid leave and notice must be given prior to an application to the DFML.
  • Applying for Benefits Verification: the proposed changes include a new requirement that employees using paid leave on an intermittent basis must verify the hours of leave taken with the DFML in order to continue receiving benefits.
  • Weekly Benefit Amount: the proposed changes state the weekly benefit amount will be calculated based on an employee’s average weekly wage at the time the employee files a request for paid leave.  The weekly benefit amount will not change during the term of the approved leave period.
  • Substitution of Employer-provided Paid Leave: the DFML proposes to change the regulations to provide that employees choosing to use accrued paid leave provided by their employers rather than benefits under the PFML will have their accrued paid leave run concurrently with PFML leave.
  • Employer Reimbursement: the proposed revisions state if employers make payments to a covered employee during a period of PFML equal to or greater than the weekly benefit amount, the employer shall be reimbursed out of any benefits due to the covered individual or to become due from the Trust Fund by the DFML.
  • Intermittent and Reduced Schedule Leave: DFML proposes additional guidance for keeping track of intermittent leave.  Employers must provide the DFML with wages or qualified earnings paid to employees approved for intermittent leave individual on a monthly basis, or at another interval approved by the DFML.
  • Retaliation: the proposed revisions update the rebuttable presumption of retaliation to state a negative change shall not include trivial, or subjectively perceived inconveniences that affect de minimis aspects of an employee’s work.  In addition, an employer who notifies the DFML based on a bona fide belief the employee has committed fraud in connection with the employee’s application for benefits shall not give rise to an action of retaliation or presumption.

The above changes are subject to further change and revision.   This blog is an overview of the major proposed changes to date of the current regulations.  We advise employers to read through the markup submitted by the DFML for information on all proposed changes and updates.  The DFML will hold a public hearing on the proposed amendments to regulations on June 11, 2020, at 10 a.m.  Prior to this hearing, DFML invites interested parties to submit comments on the proposed revisions directly to DFML.  The link to submit comments directly to DFML is here

If you have questions or would like more information, please contact Janet Barringer at [email protected] or Zinnia Khan [email protected].

Say Goodbye to Arbitration; Say Goodbye to Confidentiality?

Posted on: December 20th, 2017

By: Christopher M. Curci

On December 4, 2017, New Jersey state Senator Loretta Weinberg introduced Senate Bill S-3581. The bill aims to (1) eliminate arbitration provisions in employment agreements related to discrimination, retaliation, and harassment claims, and (2) eliminate confidentiality clauses that are commonly found in employment settlement agreements for those claims.  The bill would bring significant change in the handling of employment litigation in New Jersey.

A recent study by the Economic Policy Institute found that 54% of non-union employers have mandatory arbitration procedures for employment related disputes. In 1992, that number was a mere 2%.  The meteoric rise in arbitration agreements is because employers consider arbitration less costly than federal or state court litigation, and because arbitration eliminates the risk of “runaway jury” awards to plaintiff-employees.  Conversely, opponents of mandatory arbitration assert that such agreements prohibit employees from having access to their full legal rights under federal and state employment laws.

Regarding confidentiality clauses, such clauses are almost always found in settlement agreements between employers and employees. However, the recent explosion of high-profile allegations of sexual harassment and the #MeToo social media movement has started a dialogue regarding whether confidentiality clauses should be made unlawful.  It is within this backdrop that Senator Weinberg has proposed Senate Bill 3581.

If passed, the bill would eliminate the use of arbitration for discrimination, retaliation, and harassment claims, and make it unlawful to have “confidential” settlements of such disputes. Employers should keep an eye on this bill and prepare to make necessary changes to their employment contracts and employee handbooks if the bill becomes law.  Employers should also consider the bill’s potential impact on any current or expected litigation.  Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].

Reminder: New York’s Paid Family Leave Program Goes Into Effect January 1, 2018

Posted on: November 7th, 2017

By: Robyn Flegal

In 2016, New York Governor Andrew Cuomo signed the nation’s most comprehensive paid family leave policy into law. New York will join California, Rhode Island, and New Jersey as the only states providing a paid family leave benefit. The New York State Paid Family Leave Program, effective January 1, 2018, will require that almost all private employers, including those with as few as one employee, provide eligible employees with paid leave. Eligible employees include (a) employees who have worked for twenty-six consecutive weeks, or (b) part-time employees working twenty hours or less per week who have worked for 175 days.

The program will initially require that these eligible employees receive eight weeks paid leave at 50% salary but, by January 1, 2021, employees will receive twelve weeks of paid leave at 67% salary. Benefits are capped at 50% of New York’s average weekly wage. The following are circumstances for which employees will be able to take paid family leave under the new statute:  (a) to care for a child within twelve months after birth, adoption, or foster care placement, (b) to care for a family member (including grandparents and domestic partners) with a serious health condition, and (c) in the event of a qualifying exigency when a family member is called to active military service.  Leave may be taken intermittently in full day increments during a fifty-two week period. Although employers may permit employees to use sick or vacation leave in order to receive full pay, employers cannot require employees to use their paid time off while on leave under this new law.  Employers can, however, require that FMLA and Paid Family Leave run concurrently.

Under the new law, employees must provide thirty days’ notice if such leave is foreseeable. During the leave, employers must maintain the employee’s existing health insurance benefits, and the employee is entitled to reinstatement in the same position held prior to the leave or to a comparable position with comparable pay, benefits, and other terms and conditions of employment.  Employers whose employees work in New York for thirty or more days in a calendar year must also obtain Paid Family Leave insurance coverage.

If you are a private company with employees working in New York (including employees who work in New York but live in another state or who work from home in New York), you should have a plan in place for implementation of this program, and you should update your policies to ensure compliance with the new requirements as of January 1, 2018.

For more information, please contact [email protected] or any of FMG’s Labor and Employment attorneys.

Employers Beware: Use Of Biometric Technology Can Expose You To Troublesome Lawsuits (Especially In Illinois)

Posted on: November 6th, 2017

By: William E. Collins, Jr.

The recent spike in claims against employers involving employee biometric data is a reminder that employers across the country should use caution before implementing technology utilizing employee biometric information.

How and Why Employers Use Biometric Technology
Employers are increasingly turning to technology utilizing biometric verification to ensure accurate time records and increase security. Biometric verification uses one or more unique identifiers from a person to verify their identity. These biometric identifiers include the use of fingerprints, finger geometry, and hand, face, or body scans. Employers use this technology to ensure accurate time records and increase security. Biometric verification combats “buddy punching”—where co-workers clock in or out for a fellow employee—and inaccurate time records because it requires the employee to be present in the workplace when the entry is made. By requiring the employee be physically present, the employer increases accuracy, security, and can restrict employee access to specified areas in the workplace. While this technology certainly has its advantages, it is not without risks to employers.

Flurry of Cases in Illinois
Since September of 2017, there have been more than 25 new lawsuits in Illinois State Court that allege violations of the Illinois Biometric Information Privacy (“BIPA”), which requires employers provide employees notice, obtain their consent, and clearly outline retention policies if using biometric identifiers.

Hyatt, Roundy’s, Zayo Group, Speedway, and Kimpton’s Hotels are a few targets of the most recent BIPA lawsuits. These companies allegedly violated BIPA where they required employees provide a fingerprint or finger geometry to clock in and clock out or to access company facilities without obtaining employee approval or outlining the scope and duration of use of the employee’s information.

The law imposes steep penalties for even unsuspecting employers where the liquidated damage provision of the statute is $1,000 per occurrence if the employer is merely negligent. And when the acts are willful or reckless, the damage is $5,000 per act. As you can imagine, this represents significant liability for employers and that potential liability quickly escalates when faced with the prospect of class action litigation. It was recently estimated that one company embroiled in one of the Illinois biometric fights faces the prospect of damages reaching $10 million.

Statutes Across the Country
While Illinois is the only state with a private right of action, several states place restrictions on an employer’s use of certain biometric information. For example, similar to Illinois, both Texas and Washington require that employers provide notice and obtain consent from employees prior to capturing biometric identifiers. In other states, certain actions involving biometric information are prohibited. In New York, most employers are prohibited from requiring fingerprinting as a condition of securing or continuing employment. While in California, employers are prohibited from sharing biometric data with third parties.

Even if your state does not regulate biometric information, you should be prepared because state legislatures are very active in this area. In 2017 alone, new legislation regulating biometrics was proposed in Alaska, New Hampshire, Connecticut, and Washington. Much of this legislation mirrored the statutes in effect in Illinois and Texas.

Federal Employment Laws are Implicated
Employers also must be cautious when implementing technology that utilizes biometric information because federal employment statutes may be implicated. Consider EEOC v. Consol Energy, Inc., where the EEOC brought a religious discrimination claim against an employer who implemented hand-scanning technology. There, the EEOC prevailed on behalf an employee who was declined accommodation for his religious belief that the hand-scanner used to clock in and clock out would provide information that could be used by the “Antichrist” to identify those with the “Mark of the Beast.”

In other instances, because eye, hand, or fingerprint scans potentially give medical information to the employer that alone, or through further analysis, could provide an employer information that they might otherwise not know, the use of biometric identifiers could bring ADA or GINA claims. For example, eye scans could reveal undisclosed eye disorders and diseases, finger print scans might reveal burns or tissue disorders, and hand-scans could reveal arthritis, scar tissue, or temperature distribution issues. As a result, employers implementing these programs must be careful to narrowly tailor their programs so that the information does not impact participation in benefit programs or that it does not otherwise lead to discrimination based on a disability.

The Bottom Line

Employers should be thoughtful and diligent when deciding to implement technology utilizing biometric identifiers as liability lurks for employers under both state and federal laws. Ultimately, employers should:

1. Carefully evaluate the decision to implement biometric verification technology and consult with legal counsel to better understand their obligations under state and federal law.
2. Develop a written policy and obtain written consent from employees when deciding to implement this technology.
3. Narrowly tailor what information is captured, how the information is stored, and who the information is shared with.

If you have any questions or would like more information, please contact William Collins at [email protected].