Massachusetts will begin enforcing the compliance deadline for its regulations aimed at curbing identity theft on March 1, 2010. The regulations have been delayed over the course of 2009 to allow for sufficient awareness and to address concerns and confusion within companies as to who is covered and what is required. The regulations contain standards for how personal information of Massachusetts residents must be protected. They require a company to maintain an information security policy with appropriate safeguards as set forth in the regulations. Pursuant to these safeguards, companies must take the appropriate steps in overseeing third party service providers that handle personal information and encrypt personal information under specific circumstances. Written policies intended to make companies address and identify risks aimed at preventing identify theft are also required under the regulations. If you own a license, a store, maintain or otherwise receive personal information from Massachusetts residents in connection with your business, you should review your information security policy to ensure that your company is in full compliance with the regulations by March 1. If you have any questions regarding the new regulations or how they could affect your company, please contact an employment law attorney.
In Massachusetts, when plaintiffs bring discrimination claims against their employers, they are able to recover compensatory damages as well as punitive damages, in certain circumstances. Compensatory damages are those that are meant to make the plaintiff whole, such as front and back pay awards.
Punitive damages are not related to the plaintiff's actual loss, but are awarded when the defendant's conduct is determined to be so blameworthy, that an additional sum should be awarded as punishment. Under recent guidelines handed down by the Supreme Judicial Court, employees hoping to receive punitive damages are going to have to meet a new legal standard.
Under the old standard, punitive damages could have been awarded for conduct that is deemed to be outrageous, because of the defendant's evil motive, or his reckless indifference to the rights of others. It used to be that an award of punitive damages required a determination of the defendant's intent or state of mind.
Now, to sustain an award of punitive damages, a finding of intent alone is not sufficient. An award of punitive damages requires more than just a knowing violation. Punitive damages may be awarded only where the defendant's conduct is truly outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation.
In making an award of punitive damages, courts will have to decide whether the award is needed to deter such behavior in the future, or whether the defendant's behavior is so egregious that it warrants public condemnation and punishment.
In determining whether the defendant's conduct was so outrageous or egregious to warrant punitive damages, courts will consider all relevant factors surrounding the wrongful conduct. Such factors may include:
Whether there was a conscious or purposeful effort to demean or diminish a protected class (or the plaintiff, because he or she is a member of a protected class)
Whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise
The actual harm suffered by the plaintiff
The defendant's conduct after learning of the initial conduct and that such conduct would likely cause harm to the plaintiff
The duration of the wrongful conduct and any concealment of that conduct by the defendant.
This list, however, need only be used for guidance, and there may be other factors that a court will consider when deciding whether punitive damages are appropriate.
For years, the Social Security Administration had been sending employers No-Match letters when an employee’s social security number is found to not match their personal information. However, the Social Security Administration never provided clear guidelines on how to respond to the No-Match letters. This confounded many, and as a result, the Department of Homeland Security DHS) promulgated a new rule on how to deal with these letters. However, this new rule did little to clear up the confusion, and in October of 2007, the AFL-CIO labor union obtained an injunction to stop DHS from enforcing the new rule. DHS subsequently amended its regulations to address the AFL-CIO’s concerns. However, this still proved insufficient.
Now, two years after the AFL-CIO filed for a court injunction, DHS has given up on its new rule. DHS wrote in its rescission notice that it will focus its enforcement efforts regarding employment of illegal aliens on other programs such as the new E-Verify and ICE Mutual Agreement between Government and Employers. The rescission took effect as of November 6, 2009.
This is not to say that the proliferation of No-Match letters will cease entirely. To the contrary, employers are likely to continue receiving them. Although unenforceable, these letters constitute constructive notice to employers that the employee is likely an illegal alien. As a result, employers are once again in the dark as to how to respond to such letters. To alleviate the uncertainty, many people have weighed in on this subject, and the following constitute suggestions for employers in responding to No-Match letters:
Vigorously check employee records for errors Inform the employee in writing of the receipt of the letter and ask them to inquire with the Social Security Administration within a reasonable time frame (typically sixty (60) to ninety (90) days is sufficient)
If after that time frame the employee has not resolved the issue, it is best to terminate their employment. However, be careful not to violate any employment discrimination laws in the process, as anything that constitutes a wrongful termination can be used against you in an employment discrimination suit.
On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) of 2010, modifying the Family and Medical Leave Act (FMLA). The NDAA modifies the FMLA in several ways:
Eligible employees will be able to take military caregiver leave for veterans who served in regular Armed Forces or the Reserves within 5 years of the date the veteran undergoes medical treatment, recuperation, or therapy. Previously, military caregiver leave was only available to care for current members of the Armed Forces, the National Guard, or the Reserves.
Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. Previously, aggravation of existing injuries incurred in the line of duty while on active duty was excluded as a basis for taking military caregiver leave.
Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country. Previously, qualifying exigency leave was only available for covered military members in the Reserves or National Guard.
The legislation extended qualifying exigency leave to federal employees covered by Title II of the FMLA. Previously, federal employees covered by Title II did not have the right to take such a leave.
Employers should review and adjust their FMLA leave policies to reflect the military family leave modifications. Employers should contact an employment law attorney with any questions or concerns about the NDAA modifications.
Whether or not employees must be paid for their on-call time can be a particularly thorny question and is one that ultimately rests on a question of control. If the employee is essentially controlling her own time, it will not be considered work and the employee need not be paid. If, however, the employer is exercising significant control over the time, then the employee may have to be compensated at a regular hourly rate.
In the easy cases, an employee who is required to remain on-call on her employer's premises where she cannot use the time effectively for her own purposes is considered working and therefore, must be paid.
A harder question is whether on-call time spent at home or off-site should be compensable. In these cases, the answer depends on whether the restrictions placed on the employee preclude using the time for her personal pursuits.
To determine whether off-site on-call time is compensable, courts look at the totality of the circumstances and will consider multiple factors of control. Such factors include:
The existence of geographical restrictions and required response time (is the employee required to stay within a specified distance from work?)
Frequency of calls
Ability to use a cell phone (showing an employee’s freedom of movement)
Whether the employee engages in personal activities while on-call
Provisions of any employment agreement as to treatment of on-call work;
Length of on-call period
Whether employees are restricted from engaging in certain activities while on call
The more demanding these factors are on the employee, the more likely the on-call time will be deemed working time.
Employers need to be cognizant of these factors when implementing on-call policies. An employer’s misclassification of on-call time poses the potential for severe penalties for failing to pay employees their rightfully earned wages. If you have questions regarding how the law regarding on-call time affects your employment situation, please contact a qualified legal consultant.