Employment

O'Kelly E. McWilliams, III takes a look at the trends impacting employment law in 2019 which include a taking holistic approach to the work place,  transparency related to compensation, and more.

In our last blog post on Massachusetts Paid Family and Medical Leave (“MAPFML”), we reviewed the Department of Family and Medical Leave’s (the “Department”) draft regulations published in January 2019 and outlined some of the questions left unanswered by the then-current regulations.  Since January, the Department has held a number of listening sessions throughout the Commonwealth soliciting comments and feedback on the draft regulations.  On March 29, 2019, the Department published revised draft regulations for public comment and hearing.  The regulations are set to be finalized on July 1, 2019, which is also the effective date of MAPFML and the commencement date for payroll deductions from employee paychecks. 

The battle over Association Health Plans (AHPs) is indisputably political, but it is being waged on legal terrain. On July 26, 2018, 11 states (New York, Massachusetts, California, Delaware, Kentucky, Maryland, New Jersey, Oregon, Pennsylvania, Virginia, and Washington) and the District of Columbia filed a complaint in the U.S. Federal District Court for the District of Columbia seeking to invalidate a June 2018 U.S. Department of Labor (DOL) final regulation (the “Final Regulation”). The Final Regulation’s purpose is to expand access by small employers and self-employed individuals to AHPs by amending the definition of “employer” in Section 3(5) of ERISA. (We describe the prior law governing AHPs and explain the details of the Final Regulation in an article published by Bloomberg Tax, available here.) In New York v. United States Dep’t of Labor, CV 18-1714 (D.D.C. Mar. 28, 2019), United States District Judge John D. Bates sided with the States, concluding that the Final Regulation is an unreasonable interpretation of ERISA. This post explains the decision and explores its implications.

Mintz attorneys Alden Bianchi and Alexander Song recently published an article in the Bloomberg Tax - Compensation Planning Journal explaining the nuances of recent guidance from the IRS regarding Section 4960 of the tax code.  Section 4960 was enacted in December 2017 and imposes an excise tax on the amount of remuneration in excess of $1 million, plus any excess parachute payment paid by an applicable tax-exempt organization to certain covered employees. 

Many employers maintain policies limiting their employees’ expectation of privacy in the workplace, including policies that eliminate any expectation of privacy when using company-issued electronic devices. While employers may think that having such a policy would protect them from invasion of privacy claims under the Fourth Amendment or state law, a recent federal court decision may cause employers to think otherwise. This post examines this decision and provides best practices for avoiding issues with employees’ privacy interests.

The Massachusetts Department of Family and Medical Leave, who oversees the Commonwealth’s Paid Family and Medical Leave (PFML) program, posted its Employer and Employee Toolkits online.  The Toolkits are available here, and are helpful to be read in conjunction with our earlier blog post on PFML.

On February 25, 2019 the Department of Labor, Department of Health and Human Services, Treasury Department and the Internal Revenue Service (the “Departments”) published a request for information (the “ROI”) on grandfathered plans, signaling that a relaxation of the grandfathering rules may be forthcoming.  This post gives a brief history of grandfathered plans and describes the information requested in the ROI (for which responses are due March 27, 2019).

When the Affordable Care Act (ACA) was signed some nine years ago, many employers wondered what would become of COBRA (aka, the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985). COBRA seems as strong as ever. Not surprisingly, however, the COBRA rules are complex, and we frequently field questions from employers who are facing employee terminations and just want to get things right.  Here are some of the more common questions we receive from our employer clients. 

The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM) that it estimates would convert more than one million now overtime-exempt workers to non-exempt, overtime-eligible employees.  Currently, the so-called “white collar” exemptions under the Fair Labor Standards Act (FLSA) provide that employees who are paid a salary of at least $455 per week ($23,660 per year) and primarily perform executive, administrative, or professional duties (the “job duties test”) need not be paid overtime. The NPRM would change this, by increasing the salary threshold. If adopted, the proposed rule would make other changes, too.

On April 30, 2019, Mintz will be hosting its Fifth Annual Employment Law Summit at the Princeton Club in New York City.

January ushered in many new developments across many employment law compliance categories. We hope this summary will help you keep track of the changes most relevant for you.

Employers must provide applicants and employees with separate federal and state Fair Credit Reporting Act (FCRA) disclosure forms, said the 9th Circuit in an important decision released last week.

Last month, the Massachusetts Department of Family and Medical Leave (the “Department”), issued answers to a handful of frequently asked questions for both employers and employees, and published draft regulations for the implementation of Massachusetts Paid Family Leave (“MAPFL”).  Although the benefits under this new law are not available to employees until 2021, employers’ obligations begin in just a few months. This post delves into some of the key guidance issued by the Department thus far and explores some of the open questions posed at the first listening session in Boston on January 30, 2019.

The District of Columbia Council recently repealed a law approved by voters in a June 2018 referendum that would have fundamentally changed the way tipped workers in the District are paid.  Embedded in the repeal legislation, which passed in October 2018 and took effect on December 13, 2018, are provisions that place new and potentially substantial requirements on employers of tipped workers in the District. These new requirements are ostensibly designed to prevent abuse of tipped workers.  Because the repeal and its new requirements are now in effect, employers of tipped workers such as restaurants, bars, and other service establishments should immediately take note and plan for compliance. 

Our sister Privacy & Cybersecurity blog discusses a recent Illinois Supreme Court ruling on the collection of Biometric Data. This decision will significantly impact litigation under the state’s unique Biometric Information Privacy Act, creating a potential boon for plaintiffs.

Jennifer Rubin, a Member in the Employment, Labor & Benefits Practice, and Sebastian Lucier, a Member in the Venture Capital & Emerging Companies Practice, discuss employment law related matters for companies operating in the state of California, including the challenges relating to characterizing an individual as an employee rather than an independent contractor.

The Affordable Care Act (the “ACA”) requires most health plans to provide first dollar coverage of FDA-approved contraception methods. Nearly nine years after the ACA’s enactment, this contraception mandate continues to be one of the most embattled provisions of the ACA. This post covers recent rulemaking and court decisions impacting the contraception mandate.

          As 2018 came to a close, a pair of federal court decisions provide much needed guidance on two thorny wage and hour issues that are being increasingly litigated nationwide under the Fair Labor Standards Act (FLSA).  In one decision, the court held that an employee who was paid all owed wages shortly after filing a lawsuit was not a “prevailing party” for fee-shifting purposes.  In another decision, a federal appeals court confirmed that FLSA minimum wage violations are measured based on the workweek. 

Welcome to 2019, readers! With the new year comes certain changes to New York Paid Family Leave (NYPFL), and we want to make sure you are up to date so that any leave requests you may receive under this law are properly addressed.