April 16, 2014 Timothy G. Kenneally, Esquire Foley & Foley, PC © 2014 Foley & Foley PC.
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Transcript of 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…
© 2014 Foley & Foley PC
INCREASED STAFF:
New Bedford Office;
Intern Program;
Partnering with state and federal agencies, municipalities, community organizations, and advocacy groups
MCAD cont.
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
Shipley case – criminal restraining order issue
Office Harassment – Restraining Order
Unclear if Damages are Available
Workplace Bullying
MGL c. 258E - EXTENDED
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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
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
Cubicle Claustrophobia is recognized by the EEOC as a disability? (TRUE OR FALSE)
POP QUIZ
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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
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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
© 2014 Foley & Foley PC
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?
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
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.
© 2014 Foley & Foley PC
Carefully crafted social media policies
NLRB
Protected concerted activity
“Coffee Breaks”
Control the Chaos
SOCIAL MEDIA
© 2014 Foley & Foley PC
LABOR & WORKFORCE
JOINT ENFORCEMENT TASK FORCE (JTF) (EXECUTIVE ORDER #499)
UNDER GROUND ECONOMY MISCLASSIFICATION
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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
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
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
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AGENDA - 2014
Complete JTF research study
Identify industries with frequent violators Prevent misclassification of employees
Publicize names of violators
© 2014 Foley & Foley PC
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.
© 2014 Foley & Foley PC
SPECIAL CONTRACTS cont.
Fraelick case – June 2013
Reimbursement of Expenses – Not Wages;
Retaliation claim – will stand
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
Representative Byron Rushing Amendment to discrimination laws -
discrimination - height and weight. (House Bill No. 1758)
ON THE HORIZON
© 2014 Foley & Foley PC
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
© 2014 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
© 2014 Foley & Foley PC
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
© 2014 Foley & Foley PC
TABLE OF AUTHORITIES Cont.