Employment, Labor & Benefits

In a summary of the recently issued Association Health Plan (AHP) final regulations, the U.S. Department of Labor (DOL) rightly observed that AHPs are a species of multi-employer welfare arrangements, or MEWAs, that are subject to regulation under both federal and state laws. The insurance regulators in a handful of states have recently issued guidance that, in most cases, purports to prohibit AHPs from operating as “large group” plans. (The attached table summarizes and provides links to the guidance, state-by-state.) A common, though not universal, theme is that in no case may a collection of small employers be combined to form a large group. Certain states address collateral issues. Pennsylvania, for example, makes the further claim that in no case may a self-employed individual with no employees participate in an AHP. We think that the states have overreached. This post explains why.

The wait is over.  The New York State Department of Labor (DOL) just released its final guidance with respect to New York State’s new anti-sexual harassment law.  The release includes final templates for the model sexual harassment prevention policy, complaint form, and harassment prevention training program.

Responding to widespread resistance—principally on the part of small businesses—to the increase in the Employer Medical Assistance Contribution (“EMAC”) contributions and the addition of an EMAC supplemental contribution, Massachusetts lawmakers amended the EMAC rules in 2017 to add hardship waiver provisions. (Click here for a summary of the EMAC rules.) The Massachusetts Division of Unemployment Assistance (DUA) recently issued a proposed regulation implementing the hardship waiver rules. This post examines those proposed regulations.

Until a few cases over the last year, courts appeared to be just fine maintaining the paradox that while individuals could lawfully treat their disabilities with licensed medical marijuana use, employers could choose to pass on employing medical marijuana users by relying on the illegality of marijuana under federal law. Before last year, courts in Oregon, California, Colorado, Michigan, and New Mexico all rejected employment claims brought by plaintiffs under state marijuana legalization and lawful off-duty conduct laws. Last year in Massachusetts and Rhode Island, state courts challenged that paradox, and this month, in Connecticut, a federal court did the same.

Earlier this month, the Consumer Finance Protection Bureau (CFPB) issued updated model disclosure forms required under the federal Fair Credit Reporting Act (FCRA). The updated “Summary of Your Rights Under the Fair Credit Reporting Act” form, which became effective on September 21, 2018, is one of many notices employers must provide under the FCRA when using a consumer reporting agency (CRA) to run a background check during the hiring process. The revised form is located here along with a revised Summary of Consumer Identity Theft Rights form.

Adherence to the COBRA health care continuation rules is not always high on an employer’s list of priorities. Compliance is often “outsourced,” and even when handled “in-house,” it rarely consumes much attention. A recent case, Hager v. DBG Partners, Inc., illustrates that inattention can be costly for employers. This post explains why.

Welcome to this month’s edition of the Bubbler! Now that fall is fast approaching we’re refreshing your memory of some key recent developments as we head into the new season:

Now that Labor Day is behind us, we are looking ahead to the various compliance deadlines facing New York State and New York City employers this fall.

In our sister blog, ADR: Advice from the Trenches, Gil Samberg explains the Sixth Circuit’s ruling, applying the Supreme Court’s reasoning in the recent Epic Systemscase, that the “collective action” provision of the FLSA does not render a collective action waiver in an arbitration agreement unenforceable.

Jen Rubin, a member in Mintz's Employment, Labor and Benefits practice, wrote about the need for a thoughtful and fair investigative process in the wake of the #MeToo movement.

Earlier this year, we wrote about the sweeping legislative changes enacted by New York State and New York City aimed at preventing workplace sexual harassment in the wake of #MeToo.

Non-compete reform has come to Massachusetts, with wide-ranging legal and practical implications for any employers with workers in Massachusetts. Employers have just six weeks to consider and adopt a new approach to non-compete agreements for their workforces.

The Office of Labor Policy & Standards, the office responsible for enforcing NYC’s employment laws, recently released guidance on the new Temporary Schedule Change Law. The law, which took effect on July 18, 2018, was passed with little fanfare, but left employers asking many questions about how to effectively implement its requirements.

We want to dedicate our August Bubbler feature to our readers, who have helped Mintz’s blog achieve such an august reputation. This month’s namesake (Emperor Caesar Augustus) would have been proud to see all of the activity out of the Empire State recently.

Employers in Massachusetts are watching closely as a non-compete bill was recently passed by the Legislature and is now on Governor Baker’s desk.

Earlier this month, Governor Jerry Brown signed A.B. 2282 into law, clarifying several unanswered questions concerning California’s salary history ban.

California Governor Jerry Brown recently signed into law A.B. 2770, creating new protections for employers, witnesses, and complainants from defamation lawsuits related to making, assisting, or discussing good-faith sexual harassment claims and investigations.

Earlier this month, Governor Jerry Brown signed A.B. 2282 into law, clarifying several unanswered questions concerning California’s salary history ban.

In a series of blog posts going back to last August, we reported on certain amendments to the Massachusetts Employer Medical Assistance Contribution (EMAC) rules. As we previously explained, the EMAC contributions are required of employers with more than five employees in Massachusetts.