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Employment

Checking the Rearview

By Erica E. Flores, Esq. and John S. Gannon, Esq.

Erica E. Flores

Erica E. Flores

John S. Gannon

John S. Gannon

The world of labor and employment law is constantly in flux. As attorneys who practice in this area, our business is to learn and help our clients solve problems in this increasingly complex environment.

So when we reflect on the past year, we ask ourselves how the law has changed for our clients, what new challenges were introduced, and what new guidance we can offer to help businesses navigate these ever-changing waters.

With that in mind, we bring you a summary of last year’s most significant employment-law changes for Massachusetts employers.

Paid Family and Medical Leave Insurance Program

If there is one takeaway from 2018, it is that Paid Family and Medical Leave (PFML) will be a game changer for businesses across the Commonwealth. The new program, which will require tax contributions from employers starting in July 2019, will allow employees to take considerable paid time off — up to 26 weeks per year in the aggregate — in connection with their own medical condition or to care for family members who are suffering from a serious health condition.

Paid family leave is also available to bond with an employee’s newborn or newly adopted child. Employees can begin claiming PFML benefits in January 2021. Employees will be able to collect weekly wage replacement benefits that will vary depending on their average weekly wage. The maximum weekly benefit amount is currently capped at $850 per week, but will be adjusted annually.

“A lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.”

Businesses will face substantial new burdens under the new law. In addition to planning for more frequent employee absences, businesses are required to fund the program through a new payroll tax. Employers will have the option to pass a portion of this tax contribution to employees, and smaller employers (fewer than 25 employees) are not responsible for contributing the employer’s share of the tax. A visual breakdown of how the tax will work can be found at www.mass.gov/info-details/family-and-medical-leave-contribution-rates-for-employers. We suspect that this program will be most burdensome for small businesses, which are not well-equipped for extended employee absences.

For those wondering where this significant new legislation came from, the genesis was a bill known as the grand bargain that was passed by the Massachusetts Legislature in June 2018. The bill not only creates the Paid Family and Medical Leave program, but also increases the minimum wage every year for the next five years, gradually eliminates mandatory overtime for retail employees who work on Sundays, and establishes an annual sales-tax holiday weekend.

Non-compete Reform

Also this year, the Massachusetts Legislature passed comprehensive non-compete reform. The law substantially narrows the circumstances under which employers can enter into non-competition agreements with employees, limits all such agreements to a maximum term of one year, and requires that non-competition agreements entered into with existing employees be supported by consideration beyond continued employment. The law also mandates that courts apply certain presumptions that have the effect of narrowing the scope of services and geographic territories employers can seek to protect with a non-compete.

Pay Equity Becomes Law

The amended Massachusetts Pay Equity Law took effect this past July, imposing significant responsibilities on businesses to ensure equal pay to employees of different genders for “comparable” work. And the first lawsuit alleging violations of the amended law was filed just a few days later.

Most importantly, the amended statute provides a broader definition of “comparable work” and limits the acceptable reasons for paying people of different genders differently to just six — bona fide seniority, merit and productivity systems, geographic location, job-related education, training and experience, and required travel. It also prohibits employers from seeking information regarding the salary history of job applicants. Employers hoping to reduce their risk of liability under the pay-equity law can earn the protection of a statutory affirmative defense if they complete a “good faith” self-evaluation of their pay practices, but they must demonstrate “reasonable progress” toward eliminating any wage differentials in order to avoid liability completely, and the defense is only good for three years.

Pregnancy and Related Conditions Are Now Protected Classes

In April 2018, the Pregnant Workers Fairness Act became law in Massachusetts. In addition to adding pregnancy and conditions related to pregnancy (including lactation) as protected classes under the state’s anti-discrimination law, the statute also requires employers to provide reasonable accommodations for an employee’s pregnancy or conditions related to pregnancy unless doing so would pose an undue hardship to the business; prohibits employers from taking adverse action against or refusing to hire someone because she needs, requests, or uses such an accommodation; and prohibits employers from requesting documentation to support certain types of accommodations — specifically, more frequent breaks, seating, lifting restrictions, and a private, non-bathroom space to express breast milk.

As you can see, a lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.

John S. Gannon and Erica E. Flores are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Flores devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance.

Law

Knowledge Is Power

By John S. Gannon, Esq.

John S. Gannon, Esq

John S. Gannon, Esq

As an employment attorney, my job is to help businesses comply with the myriad laws that govern the workplace. No business is immune from workplace problems, and for those who violate employment laws, hefty penalties and damages await.

In order to help businesses avoid these problems, I’ve put together a list five costly employment-practice mistakes we frequently come across, with tips for correction and prevention.

Misclassifying Employees as Exempt from Overtime

Employers are sometimes shocked when they learn that salaried employees might be entitled to overtime when they work more than 40 hours in a week. The shock quickly goes to panic when they are told the salaried non-exempt employee is due several years’ worth of unpaid overtime, and that this unpaid wage amount can be doubled and potentially tripled under state and federal wage laws.

Misclassifying employees as exempt is a common mistake. This is because many employers associate paying a salary basis with no overtime obligation. True, paying employees a salary is typically one part of the test, but there are several other factors to consider during your exemption analysis.

We recommend you work with legal counsel to audit your exempt employee classifications. While you’re at it, consider doing a pay-equity audit to help protect against equal-pay discrimination claims.

Leave-law Headaches

When an employee is out for a medical condition, there are a series of complex and challenging employment laws that need to be navigated. This includes the Americans with Disabilities Act (ADA), the federal Family Medical Leave Act (FMLA), workers’ compensation laws, the Massachusetts Earned Sick Time law, and, coming soon, the Massachusetts Paid Family and Medical Leave law.

These laws have a plethora of traps for the unwary. What do you do when an employee continually calls out in connection with a medical condition? Do your supervisors know what to do if an employee requests several weeks off for surgery? The answers are not always easy, so make sure you know how these laws interact with one another.

Outdated Handbooks and Employment Agreements

Recently, I was reviewing whether a non-compete agreement would be enforceable in court. It turned out the agreement was signed roughly 10 years ago. To make things worse, the last update to the document was pre-Y2K.

The point here is that employment agreements and handbooks should not grow cobwebs. Changes in the law require changes to these documents. For example, Massachusetts enacted significant legislation in October 2018 changing the entire landscape of non-compete law in the Commonwealth. The state also saw the Pregnant Workers Fairness Act take shape in April last year. This new law included a notice requirement that meant an update to the employee handbook was in order.

Having your employment agreements and handbook regularly reviewed by counsel is a good way to stay on top of the constant changes in the employment law world. Remember, if you have not updated these employment documents in a few years, they are probably doing more harm than good.

Failure to Eradicate Harassment at Work

Last year was dominated by headlines spotlighting sexual-harassment scandals and cover-ups. But was the #metoo movement just another fad? The answer unequivocally is ‘no.’

To prove it, late last year the Equal Employment Opportunity Commission (EEOC) published data on workplace harassment claims that revealed a 50% increase in sexual-harassment lawsuits filed by the EEOC when compared to 2017 numbers. The EEOC also recovered nearly $70 million for the victims of sexual harassment in 2018, up from $47.5 million in 2017.

You’ve heard it before, but it bears repeating: businesses need to take proactive steps to create a workplace free from harassment. This involves updating anti-harassment policies and practices, adequately training your workforce, and promptly investigating all harassment complaints.

Lack of Supervisor Training

Most of the mistakes listed above are fertile ground for supervisor slip-ups. Whether they fail to report harassment (or, worse yet, engage in harassing behavior themselves) or discipline an employee who has taken too much sick time, supervisors who don’t know any better are in a position to do considerable damage to your business.

Proper training can alleviate this risk. Plus, a supervisor who spots an issue before it spirals out of control could prevent a costly lawsuit from being filed.

John S. Gannon is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]

Law

Navigating Change

Amy Royal

Amy Royal

Amy Royal was taking a calculated risk when she left a stable job in employment law to start her own firm at the start of the Great Recession. But those calculations proved correct, and as her firm marks 10 years in business, she reflects on how her team’s services to clients continue to go beyond legal aid into a business relationship that helps companies — and the local economy — grow.

Many employers, truth be told, don’t think the grand bargain is much of a bargain. And they have questions about how it will affect them.

“Massachusetts tends to be ripe with emerging employment issues, like the grand bargain,” said Amy Royal, referring to this past summer’s state legislation that raised the minimum wage and broadened family leave, among other worker-friendly measures.

“But that’s one of the things I enjoy — the education piece we offer to clients: ‘this is what the grand bargain looks like, and we’re going to help you plan for it. This may not seem so grand, but we’re here to help you navigate this and figure out how you’re going to work within these parameters now.’”

Royal and her team have helped plenty of employers over the 10 years since she opened her law firm, Royal, P.C., in Northampton. Since launching the business as a boutique, woman-owned, management-side-only firm in 2008, that framework hasn’t changed, but the way the team serves those clients has certainly evolved.

“Now that we’re 10 years old, we’re thinking about rebranding, thinking about growth, and how we can provide additional opportunities here at the law firm,” she told BusinessWest. “Is it continuing to market in this very discrete area or expanding beyond that?

“We obviously only represent companies,” she went on, “but in our relationships with clients, we’re being asked to handle other things for those companies apart from employment law.”

“Now that we’re 10 years old, we’re thinking about rebranding, thinking about growth, and how we can provide additional opportunities here at the law firm.”

For example, the firm represents a large, publicly traded company that recently launched a new brand and wanted help creating contracts with vendors and negotiating with other companies it was collaborating with. Another client is a large human-service agency that called on Royal to interpret regulations of its funding sources and help negotiate contracts related to those sources.

“So we’ve organically expanded over time,” she said. “We still represent companies, but we do more for them, because we’re seen as a true advisor to them. So now, at 10 years, I’ve looked at the firm and asked my team, ‘is this something we should now be marketing?’ We still are a boutique firm representing companies, but what we’re going to be rolling out in the coming year is a rebranding initiative — one that’s focused on telling the story of what we are doing here that’s more than just employment law.”

Tough Timing

Royal began her law career working for the Commonwealth, in the Office of the Attorney General, handling civil-litigation matters, which included some employment claims. From there, she went into private practice at a regional law firm that solely handled management-side labor and employment law.

Amy Royal (center) with some of her team members

Amy Royal (center) with some of her team members, including (top) attorneys Daniel Carr and Timothy Netkovick, and (bottom) Heather Loges, practice manager and COO; and Merricka Breuer, legal assistant.

With that background, Royal sensed a desire to start her own company — which turned out to be a risky proposition, opening up into the teeth of the Great Recession.

“I obviously took a huge leap; I was at an established law firm and had been there for a long time. I had an established job, with a very young family at the time. And it was 2008, when, obviously, the economy wasn’t in good shape.”

So she understood if people thought striking out on her own might not have been the safest move.

“But given how long I’d been practicing law at the time, it felt to me like it was now or never,” she explained. “I really wanted to see if I could make a go at it, and I felt like I had the tools to develop a business. Oftentimes, law firms aren’t thought of as businesses; they’re thought of as practitioners, but not businesses. But I knew I could create a law firm in a strategic way and develop it and make a company out of it.”

At first, Royal’s wasn’t the only name on the letterhead. At first, the firm was called Royal & Munnings, with Amy Griffin Munnings as a partner, helping Royal get the firm off the ground. Later, after Munnings moved to Washington, D.C., the firm was known as Royal & Klimczuk, for then-partner Kimberly Klimczuk, who subsequently departed and currently practices employment law at Skoler Abbott in Springfield.

Currently, Royal employs four other attorneys full-time, in addition to two full-time paralegals and other support staff.

“I really wanted to take the model of a specialized, boutique practice and build upon it with a strong client base of corporations throughout our Valley and beyond — because we do represent companies in Rhode Island, Connecticut, and Vermont, as well as national corporations,” she explained.

“I believed it didn’t so much matter where we were located because we go out to our clients,” she added. “So I chose Northampton because I have really enjoyed the community — I went to Smith College, and I thought I could have an impact here and throughout the region and beyond in creating employment opportunities for people.”

That is, in fact, how Royal sees her work: by helping clients navigate through often-tricky employment issues, she’s helping those companies grow and create even more jobs in the Valley.

And while many of those thorny issues have remained consistent, they’ve ebbed and flowed in some ways, too.

“Given the employment-law landscape, there becomes hot areas at certain times, and we become sort of subspecialists in those areas,” she explained. For example, early on, she saw a lot of activity around affirmative action and dealing with the Office of Federal Contract Compliance Programs. Wage-and-hour conflicts have become increasingly prominent in recent years as well, and Royal, P.C. has handled client defense on those issues, as well as general guidance on how to avoid claims altogether.

“I do feel like we can advise clients and help them flourish,” she went on. “I’m so committed to this region, and I know there’s been a lot of work done over the last decade since our birth as a law firm, in the business community and the community at large, on how to make the Pioneer Valley an even more attractive place for people to live and earn a living and feel like they have opportunities here — that they don’t have to be in Boston to have those opportunities.”

Risk Managers

As she continues to grow the firm, Royal says it’s always a challenge to find talented attorneys who are skilled in labor and employment law and also understand her vision for the company.

“Practitioners often think, ‘here’s what the law says.’ We need to be telling clients, ‘OK, here’s what the law says you can do, but this is also a business decision, and everything is about weighing and measuring risk and deciding whether you can bear that risk or not, whether that’s a good practice or not.’”

“Given how long I’d been practicing law at the time, it felt to me like it was now or never. I really wanted to see if I could make a go at it, and I felt like I had the tools to develop a business.”

And challenges to employers are constantly evolving, whether it’s legislation like the grand bargain or issues that arise from new technology. She recalls what a hot topic portable devices, like smartphones and tablets, were in the early part of this decade.

“Now it’s like everyone has one,” she said, “but at that time, it was a huge issue for employers, who were asking, ‘where is our data going? If you’re a portable employee, what’s happening when you leave with that phone?’”

The economy can affect the flow of work as well. In the early days of the firm, as the recession set in, litigation crowded out preventive work such as compliance matters, employee handbooks, and supervisory training. In recent years, she’s seen an uptick in requests for those services again.

Sometimes, employers will call with advice before taking disciplinary action with an employee — just another way Royal aims to be a partner to clients. The firm also conducts regular seminars and roundtables, both for clients and the public, on matters — such as legislative changes and policy wrinkles — that affect all employers.

In some ways, that’s an extension of the way Royal wants the firm to be a presence in the broader community. Another is the team’s involvement with local nonprofits.

“I’ve tried to set that tone,” she said, “but it’s never been met with resistance — it’s always been met with ‘oh, yes, maybe we can do this, maybe we can do that.’ It’s been important to me to have a team that really wants to support their community.”

Meanwhile, that team has been focused, perhaps more than ever before, on what exactly Royal, P.C. is — where the firm has been in the past, what it is now, and what it wants to be going forward.

“We have a strong, viable book of labor and employment business, and what I’ve communicated to my team is, ‘we can keep going for the next 10 years, 20 years, on that book, and achieve growth.’ Or we can look at our brand and say, ‘do we want to grow beyond that? Do we tell the story of the other services we’re able to provide, and create other employment opportunities for people in the Valley?’ There’s a consensus here that that’s really the direction we should be going in.”

Joseph Bednar can be reached at [email protected]