april 16, 2014 timothy g. kenneally, esquire foley & foley, pc © 2014 foley & foley pc

Good MorningSOUTHCOAST

HUMAN RESOURCES COUNCIL

WHAT EMPLOYERS NEED TO KNOW

April 16, 2014Timothy G. Kenneally, Esquire

Foley & Foley, PC

© 2014 Foley & Foley PC

2012 Annual Report:

Disability Claims Topped List (again)

Retaliation Claims Rose (again)

Increased probable cause determinations;

Increased cases decided by a hearing.

MCADIS WATCHING…


INCREASED STAFF:

New Bedford Office;

Intern Program;

Partnering with state and federal agencies, municipalities, community organizations, and advocacy groups

MCAD cont.


NEW CAUSE OF ACTION

ASSOCIATIONAL DISCRIMINATION – HANDICAP (Flagg v AliMed case):

Employee’s Wife was Disabled

Employee terminated

Employee claims:

Co. fired him b/o ↑ Health Ins. Costs


Shipley case – criminal restraining order issue

Office Harassment – Restraining Order

Unclear if Damages are Available

Workplace Bullying

MGL c. 258E - EXTENDED


An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status.

Reported favorably out of the Joint Committee on Labor and Workforce Development on March 27, 2014.

House vote possible this year

http://www.healthyworkplacebill.org/states/ma/massachusetts.php#status

HEALTHY WORKPLACE LAW


http://www.healthyworkplacebill.org/states/ma/massachusetts.php



Six priorities for 2013-2014:

Eliminate hiring/recruitment barriers; Protect immigrants, migrant workers, vulnerable

employees; Discrimination - ADA, Sex, Pregnancy; Enforce Equal Pay Laws; Workers’ access to the legal system; and Prevent harassment.

EEOC


Cubicle Claustrophobia is recognized by the EEOC as a disability? (TRUE OR FALSE)

POP QUIZ


o U.S. Sup. Ct. - Vance v. Ball State University

o “Supervisors” can still be held liable

o Definition: empowered by the employer to take tangible employment actions against the victim

Supervisor Liability


Governor has proposed legislation banning non-compete agreements.

Technology Sector – Barrier to Innovation

Uniform Trade Secrets Act

Increased Loss of Private Information?

NON-COMPETE AGREEMENTS


Guidance - criminal background info:

Past criminal conduct must pose a risk for the particular position

Disparate impact on the hiring of African Americans and Hispanics

Recommendation to employers: consider three factors:

The nature of the crime; The time elapsed; and The nature of the job.

CRIMINAL BACKGROUND?


Employers accessing CORI records/ iCORI system:

Provide the applicant with a copy of any criminal history records in the employer's possession.

Employers who annually conduct five or more background investigations should implement a written policy that complies with the Act's minimum requirements.

New recordkeeping obligations and retention limits.

USE OF CORI


PARENT EMPLOYEE SEEKS FMLA TO CARE FOR 27 YEAR OLD ADULT SON ON BEDREST FOR FOUR WEEKS. ALLOWED? IF SO UNDER, WHAT CIRCUMSTANCES?

POP QUIZ


FMLA leave for adult children clarified:

Leave to care for adult son or daughter

(Not Son or Daughter In-law)

Child Disabled as defined by the ADA;

and

Incapable of self-care due to disability.

FMLA cont.


Carefully crafted social media policies

NLRB

Protected concerted activity

“Coffee Breaks”

Control the Chaos

SOCIAL MEDIA


LABOR & WORKFORCE

JOINT ENFORCEMENT TASK FORCE (JTF) (EXECUTIVE ORDER #499)

UNDER GROUND ECONOMY MISCLASSIFICATION


HOW MUCH MONEY DID THE JTF COLLECT IN FINES, UNEMPLOYMENT , TAXES AND UNPAID WAGES IN 2011 AND 2012?

Over $11M

Over $21M

Over $5M

Over $16M

POP QUIZ


July 2011-December 2012 - $21,393,652.00

2011 – TOTAL: 6,469 - $5.9M

2012 – TOTAL: 17,768 - $15.4M

Increased by ~ 275%

FUNDS “RECOVERED” BY JTF


Highlights just from 2012: DUA –

identified 2300 misclassified workers $11M in unreported wages in 5 months

ABCC – licensing compliance checks 14039 checks - $8.4M

Automated Fraud Detection System (AWARE) adopted

COMPLIANCE CHECKS


AGENDA - 2014

Complete JTF research study

Identify industries with frequent violators Prevent misclassification of employees

Publicize names of violators


SPECIAL CONTRACTSWage law prohibits special contracts

that exempt Employer from payment of wages

Awuah case – cannot charge back to employees when customers do not pay;

Camara case – cannot deduct wages for MVAs.


SPECIAL CONTRACTS cont.

Fraelick case – June 2013

Reimbursement of Expenses – Not Wages;

Retaliation claim – will stand


LLC - MANAGERS

MANAGERS OF LLC HELD PERSONALLY LIABLE FOR NON-PAYMENT OF WAGES.

Cook v. Patient EDU, LLC – SJC decision from June 2013

Manager must substantially control, direct or formulate wages policy


Representative Byron Rushing Amendment to discrimination laws -

discrimination - height and weight. (House Bill No. 1758)

ON THE HORIZON


PARTNERSHIPS WITH OUR CLIENTS

EMPLOYMENT AND LABOR LAW

OUR GOALS: ◦ Develop, implement and enforce best policies

and practices; ◦ Reduce risk and minimize their potential

exposure; and ◦ Aggressive but smart representation of clients.

FOLEY & FOLEY, PC


Massachusetts Commission Against Discrimination- Annual Report 2012 http://www.mass.gov/mcad/documents/2012%20Annual%20Report.pdf

MCAD Cases http://www.mass.gov/mcad/documents/MCAD%20&%20Donnalyn%20Sul

livan%20vs%20Middlesex%20Sheriff's%20Office.pdf http://www.mass.gov/mcad/documents/MCAD%20&%20Janice%20Switze

r%20vs%20Office%20Max,%20Inc.pdf http://www.mass.gov/mcad/documents/MCAD%20&%

20Rebecca%20Andrews%20vs%20MA%20Maritime%20Academy.pdf http://www.mass.gov/mcad/documents/MCAD%20&%

20Marc%20Kogut%20vs%20The%20Coca-Cola%20Company.pdfFlagg v. AliMed, 466 Mass. 23 (2013)

http://caselaw.findlaw.com/ma-supreme-judicial-court/1639587.htmlShipley v. Nagel Cutrell Wendell & Associates, et al.So You Want A Bigger Office? Showing Complaining Employee The Door is Costly

http://virginiaworkplacelaw.com/2011/07/20/so-you-want-a-bigger-office-showing-complaining-employee-the-door-is-costly/

TABLE OF AUTHORITIES


http://www.mass.gov/mcad/documents/2012%20Annual%20Report.pdf

http://www.mass.gov/mcad/documents/2012%20Annual%20Report.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Donnalyn%20Sullivan%20vs%20Middlesex%20Sheriff's%20Office.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Donnalyn%20Sullivan%20vs%20Middlesex%20Sheriff's%20Office.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Janice%20Switzer%20vs%20Office%20Max,%20Inc.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Janice%20Switzer%20vs%20Office%20Max,%20Inc.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Rebecca%20Andrews%20vs%20MA%20Maritime%20Academy.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Rebecca%20Andrews%20vs%20MA%20Maritime%20Academy.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Marc%20Kogut%20vs%20The%20Coca-Cola%20Company.pdf

http://www.mass.gov/mcad/documents/MCAD%20&%20Marc%20Kogut%20vs%20The%20Coca-Cola%20Company.pdf

http://caselaw.findlaw.com/ma-supreme-judicial-court/1639587.html



The NLRB and Social Media http://nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

The Social Media Merry-Go-Round http://ggemploymentlawupdate.com/2013/10/18/the-social-media-merry

-go-round/

Joint Enforcement Task Force on the Underground Economy and Employee Misclassification- 2012 Report

http://www.mass.gov/lwd/eolwd/jtf/annual-report-2012.pdfReport of the Attorney General for Fiscal Year 2012

http://www.mass.gov/ago/docs/ourorganization/fy12-annual-report.pdfDOL POLICIES ON GENDER IDENTITY: RIGHTS AND RESPONSIBILITIES

http://www.dol.gov/oasam/programs/crc/20130712GenderIdentity.pdf


TABLE OF AUTHORITIES Cont.

http://nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

http://nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

http://ggemploymentlawupdate.com/2013/10/18/the-social-media-merry-go-round/



http://www.mass.gov/lwd/eolwd/jtf/annual-report-2012.pdf

http://www.mass.gov/ago/docs/ourorganization/fy12-annual-report.pdf



april 16, 2014 timothy g. kenneally, esquire foley & foley, pc © 2014 foley & foley pc

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