Employment Law Bits

Governor Patrick seeks change in CORI Law

Massachusetts Governor, Deval Patrick, is seeking an overhaul of the state’s Criminal Offender Record Information (CORI) Law. This law allows employers access to criminal records of potential employees for a fee. Currently about three percent of employers in the state obtain official criminal records from the state, while the majority of employers use private services that gather information at courts.

Patrick is proposing to establish a secure Internet site which would allow access to both potential employers and people with criminal records. The employers (and other entities, such as licensing boards, organizations and landlords) would be able to access the site to view criminal records, while people with criminal records would be able to see who has been checking their records.

To obtain a criminal record check currently costs eligible employers $15 for each person’s record. The system proposed by Patrick would charge $20 to $35 per check of the database. Ideally, the newer system would be more efficient and easier to navigate.

Right now, offenders with a misdemeanor on their record can petition to have their record sealed by the court after ten-years; Patrick is proposing to cut this waiting period down to five-years. The Governor is also seeking to reduce the waiting period for sealing felony records from the current fifteen-year period down to ten-years. Additionally, the new bill would expand the rights job applicants have for reviewing and contesting the accuracy of the record before being rejected by the employer because of it.

Emergency Influenza Containment Act

On November 3, 2009, House Representatives George Miller (D-CA) and Lynn Woolsey (D-CA) introduced H.R. 3991, known as the Emergency Influenza Containment Act. This bill would require employers to provide five (5) paid sick leave days per year to employees that are either sent home or directed to stay home due to a contagious illness such as the H1N1 flu virus. The bill would affect employers with fifteen (15) or more employees who do not already provide at least five (5) paid sick days, and it would protect both full-time and part-time workers.

This bill is especially important for low-wage workers, who may not be able to afford to take time off due to illness, and those in the hospitality, food service, education, and health care industries, as they come into contact with the public on a regular basis.

Moreover, the Center for Disease Control recently stated that an ill worker will infect one in ten co-workers, and the National Partnership for Women and Families estimates that the economy loses approximately $180 billion each year in terms of productivity when employees who are sick go to work anyway, (this phenomenon, increasingly common due to the recession, is coined as “presenteeism,” and its connotation is just as negative as the term “absenteeism.”) Finally, employers will likely benefit in other ways from the institution of paid sick leave: sick workers will not be present at work, which will reduce the opportunity of spreading sickness at the work site.

Unemployment benefits in Massachusetts explained

The Massachusetts Division of Unemployment Assistance (DUA) works to help get Massachusetts citizens back on their feet when they lose a job. DUA provides unemployment insurance (UI) benefits and transitional services while workers are awaiting re-employment. Listed below is a brief description of the services offered to the temporarily unemployed.

Weekly Benefits
Unemployment Insurance claimants are able to receive a weekly benefit of approximately 50 percent of their average weekly wage, up to the statutory maximum. The current maximum benefit rate is $628 per week. However, those with children may be eligible to receive an additional $25 per child per week up to a total of one half of the weekly benefit amount.

The maximum number of weeks a claimant can collect full benefits is 30 weeks. The maximum benefit credit amount is $18,840. Like many regular paycheck schedules, workers who are eligible for UI benefits receive a weekly payment for the prior week’s benefit.

Additionally, through the Emergency Unemployment Compensation (EUC) Program, Massachusetts claimants may be eligible for extended federal benefits.

Health Insurance Coverage
Massachusetts residents who receive UI benefits and meet certain income eligibility guidelines may also qualify for health insurance coverage under the Medical Security Program (MSP). Participants in the Program can receive assistance with making payments to a COBRA or personal health insurance plan and may even qualify for enrollment in a free health insurance plan.

Job Training
While receiving UI benefits, workers can apply for approved training if they feel training will help to secure new employment. Though DUA will not cover the costs of training, workers may be eligible for up to an additional 18 weeks of UI benefits while attending approved full-time training.
 
Job Search Assistance - One-Stop Career Center Services
For those who are either unemployed or just looking for a better job, the Commonwealth offers helpful guidance. With locations across the state, One-Stop Career Centers provide employment services that allow workers to search for jobs in an environment that is comfortable and resourceful.

As the economy works to fight its way out of this slump, it is good to know exactly how our government is aiding us through our most trying times.

Hidden cameras in the office: to tape or not to tape?

In August, a California court changed the landscape of the state’s workplace privacy law. Specifically, the court decided a case involving a hidden camera placed in an office occupied by two clerical employees. The employees worked for a private residential facility for abused and neglected children. The facility’s director placed the camera at a computer workstation based on a tip that employees were using the office computer to view pornography after hours. The employer sought to monitor the computer, as the allegations constitute a violation of the facility's rules and mission to provide a safe haven for abused children. The employees found the hidden camera, and sued for invasion of privacy.

The court, however, found for the employer. While the court agreed that the hidden camera constituted an invasion of the employees’ reasonable expectations of privacy, the court ultimately held that the intrusion was not offensive or serious. The court’s decision was based on evidence that the employer only utilized the camera several times, and only after the close of the work day. Thus, the employees were never actually filmed by the hidden camera. Moreover, the court ruled that the employer had a legitimate business purpose for monitoring the computer work station.

Nevertheless, employers should be cautious when deciding whether or not to monitor the office with the use of hidden cameras. If the employees in question had been taped, the outcome of the California case could have been drastically different. California has built explicit privacy rights into their state constitution. While many other states have not done so, there is always a chance that they will in the future. As such, full disclosure of the use of hidden cameras is recommended.

Untangling the Workers’ Compensation web

The basic premise of workers’ compensation is that the employer provides wage replacement and payment of medical expenses for employees in relation to work-related injuries, illnesses, or death. In exchange, employees must agree to forego their right to sue the employer for damages in connection with the injury, illness, or death. Every state has its own Workers’ Compensation laws. For example, in Massachusetts, employers are required by law to have workers’ compensation insurance, and claims for benefits must be filed with the Department of Industrial Accidents (DIA.)

Employers must file a “First Report of Injury or Fatality” form (Form 101) with their insurer and the DIA within seven calendar days of notification of an incident. Failure to do so is a violation of the Massachusetts Workers’ Compensation statute. Three violations in the same year will result in a fine of $100 per violation, which employers must pay or appeal within thirty calendar days. If the insurer fails to pay or contest payment of a claim in a timely manner, a $200 fine may be assessed, payable to the injured worker. Further delays may result in fines payable to the Workers' Compensation Trust Fund.

If your employer fails to send the Form 101 to their insurer, you should report your claim to the insurance company yourself or complete the DIA’s “Employee’s Claim Form” (Form 110.) When the DIA has received your Form 110, it will schedule Conciliation (informal meeting between you and your employer’s insurer) in the department office closest to your home. The agreement that you reach during Conciliation will be non-binding unless you agree to be so bound.

If the conciliator refers your case to an administrative judge, an informal conference will be scheduled in which the judge will issue a temporary order regarding compensation. Both the employee and the employer’s insurer retain the right to appeal the decision within fourteen days of its filing date. At that point, it will go to a formal hearing similar to a trial. If still unsatisfied, you may appeal to the review board within thirty days of the decision. Keep in mind, however, that the decision is only subject to reversal if it was beyond the judge’s authority, in conflict with the law, or unjustified.

I-9 investigations - the US government cracks down

The United States Immigration and Customs Enforcement (ICE) is cracking down on business owners who employ illegal immigrants. On July 1st, ICE sent out Notices of Inspection to 652 businesses nationwide. This is a significant increase from last year’s number of 503 notices. John Morton, Department of Homeland Security Assistant Secretary of ICE explained, “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment.”

When an employer hires a new employee, the employer is required to complete an Employment Eligibility Verification (I-9) form, which entails checking the individual’s identity documents and verifying that the individual is legally authorized to work in the United States. The employer is required to review the documents and confirm that they are genuine and related to the individual. Failure to comply with the I-9 rules and provisions can result in significant monetary fines, and in egregious cases, criminal penalties.

The 652 businesses receiving the Notices of Inspection were selected based on leads and information received through investigative means. The names of the businesses are not currently being released by ICE.

This initiative is part of a new, comprehensive strategy implemented by ICE in April. The goal is to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce.

COBRA health insurance coverage explained

COBRA (the Consolidated Omnibus Budget Reconciliation Act) provides people who lose their jobs the right to continued health insurance coverage at group rates. While this amount is typically higher than what employees were paying while employed, the cost is usually lower than private, individual health insurance. To be eligible for COBRA benefits, three elements must be met:

• Plan Coverage – the employee’s former employer must have provided a group health plan and employed twenty or more employees.
• Qualified Beneficiaries – this is generally an individual covered by a group health plan, and can also include the employee, the employee’s spouse or dependent children; and occasionally a retired employee may qualify.
• Qualifying Events – these are events that would result in the loss of health coverage for an individual. The two main qualifying events are (1) voluntary or involuntary termination of employment for reasons other than gross misconduct; and (2) reduction in the number of hours of employment.

Prior to 2009, COBRA participants were required to pay the entire insurance premium at the employer’s group rate, which can be costly (employers usually pay part of the premium for active employees). With President Obama’s passage of the Stimulus Package in February of 2009, certain qualified individuals may be eligible for up to a 65% reduction of their premium cost under COBRA. To be eligible for the benefit, the former employee must:

• Be eligible for COBRA continuation coverage at any time between September 1, 2008 and December 31, 2009;
• Elect COBRA coverage; and
• Be eligible for COBRA as a result of involuntary termination.

For more information regarding your rights under COBRA, please contact an employment attorney.

Employment-related defamation claims on the rise?

As a result of a recent court decision, employers could be facing increased numbers of defamation claims filed by discharged employees. Using a definition of “actual malice” from the case, the court held that even truthful statements may give rise to a libel claim if the plaintiff can prove malicious intent on the part of the speaker.

After an employee of a company was terminated, the executive vice president sent an email to all employees, approximately 1,500 people, informing them that the employee had been fired and giving the reasons for his termination, advising the recipients to consult human resources if they had questions about the tasks that he had previously performed.

The former employee filed suit against the company, alleging among other things, that the email sent by the executive vice president constituted libel. The court concluded that because the legislature had passed the libel statute in 1902, the definition of “actual malice” used during that time period should be the meaning applied to evaluate the libel claim in 2009. The court found that the proper definition to apply was “ill will” or “malevolent intent.”

Although a jury has yet to hear this issue, the ramifications of this decision could be significant for employers. With the current state of the economy and the resulting layoffs, employers may be susceptible to defamation suits, even if the statements made about former employees are true. This can be especially problematic in situations involving negative job references to prospective employers. Given the potential for liability, employers are urged to contact an employment attorney to ensure adequate compliance.

EEOC announces strategies for employers in dealing with the Swine Flu outbreak

In response to the recent swine flu outbreak, the Equal Employment Opportunity Commission (EEOC) has produced several comments directing employers on how to avoid a potential Title VII or ADA violation.

On May 11, 2009, the EEOC warned that “Swine Flu discrimination” could be considered a violation of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC cautioned employers against discriminating against Mexicans out of fear of swine flu. Essentially, to bring a claim for violation of Title VII, one must first demonstrate that they belong to a protected class, such as race, gender, or—in this case—national origin. By refusing to hire someone of Mexican origin for fear that they are carrying the swine flu, an employer may be causing a disparate impact on a protected class. The caveat: employers should steer clear of refusing to hire persons of Mexican origin.

Additionally, the EEOC recommends that employers institute a neutral policy that requires any employee who contracts the swine flu to take a leave of absence. That will likely insulate an employer from a Title VII violation.

Further, in response to growing concern, the EEOC also disseminated information regarding whether employer requests for health information would violate the Americans with Disabilities Act (ADA). The EEOC responded to this concern in three categories, (1) pre-employment offer, (2) post-employment offer, and (3) current employees.

The short answer is that before an offer for employment is tendered, an employer may not request health information or medical examinations of any kind. However, once an offer is made, but prior to the new employee’s start date, an employer may request such information, regardless of whether it is sufficiently job-related, so long as this procedure is implemented for all similarly situated new hires.

Finally, an employer may only request medical information from current employees if the request is sufficiently job-related and consistent with a business necessity. However, beware of a caveat here as well. When it is acceptable for an employer to request that employees undergo medical examinations, the information collected must remain strictly confidential.

Some final thoughts on employer procedure dealing with swine flu at the workplace - employers may require employees to wear protective equipment such as a face mask on-the-job without concern for a potential ADA violation. Employers may also recommend or require that employees work from home to control an outbreak, so long as an employee is not singled out in the process.

For more information regarding proper employer procedure during the swine flu epidemic, please consult the EEOC, or make an appointment with an employment law attorney.

Non-Consecutive FMLA

The First Circuit Court of Appeals recently resolved a long standing issue among Employers and Employees – whether an employee may satisfy the twelve month requirement of the FMLA by piecing together prior periods of employment with the same employer.

The First Circuit concluded that while the FMLA may be ambiguous as to whether previous periods of employment count toward the 12-month requirement, regulations establish that previous periods of employment may be combined under certain circumstances to satisfy the 12-month requirement. Employers and employees should consult with their attorney for further information regarding this issue.

by: Kevin V. Maltby, Esq.