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.

Details about the push to increase minimum wage for tipped-employees

On July 24, 2009, the federal minimum wage increased to $7.25 per hour from $6.55 per hour. However, not all minimum wage earners saw an increase in their paychecks. Employees who are classified as “tipped” employees have a lower minimum wage because of the income they receive from tips. This group of employees includes such professions as restaurant servers, bartenders, hotel workers, nail technicians, and car wash attendants.

The federal minimum wage for tipped employees is currently $2.13 per hour and has been since 1991. During that eighteen year period, the federal minimum wage for non-tipped employees has increased five times, from $4.25 per hour in 1991, to the most recent figure of $7.25 per hour.

Alerted to the inequities of this system, Representative Donna F. Edwards (D-MD) has introduced a bill that would raise the federal minimum wage of tipped employees to $3.75 per hour three months after enactment. It would then increase to $5.00 in 2011 and cap out at 70 percent of the regular minimum wage in 2012. From 1966 to 1996 the tipped employee minimum wage had been determined as a percentage of the regular minimum wage. Congressional action in 1996 ended that practice, giving restaurant industry employers a windfall.

The National Employment Law Project (NELP) is the main advocacy group behind this push for an increased minimum wage for tipped employees. NELP has reported that tipped employees have been forced to get by with poverty-level incomes as a result of this neglect by the legislature. Restaurant servers (the largest group of tipped employees) have nearly three times the poverty rate of the national workforce as a whole.

Thirty-two states currently have tipped employee minimum wages above the federal level, including seven which guarantee tipped employees the full minimum wage of regular workers. Although the fate of this legislative proposal is still uncertain, it could potentially affect thousands of businesses across the country.

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.

Increased minimum wage battle: good for employees or killing small business?

On July 24, the federal minimum wage went from $6.55 an hour to $7.25, an increase of 10.7%. Seven states had existing laws mandating $7.25 minimum hourly pay, while fourteen states exceeded the new minimum and twenty-nine states had minimum wage requirements below the new rate. Employers are required to pay whichever is the highest: federal or state.

Some experts argue that this is the worst time to increase the minimum wage because most businesses are dealing with decreased revenues during the current recession. On the other hand, some experts argue the increased minimum wage is beneficial because putting more money into people’s pockets will boost the economy. Regardless, as business owners strive to comply with the new wage requirements, an array of new labor and employment issues are beginning to emerge.

Some of the emerging issues revolve around ways for employers to maintain profits, how the new wage will affect business operations, and cutting employee hours or the number of employees during a particular shift. However, it is important for employers to comply with employment laws that serve to protect employee rights. It is also important for employers to be cognizant of the potential for litigation.

Please contact an employment attorney for questions regarding the impact the new federal minimum wage requirements may have on you or your business.

Proving age discrimination proves difficult

On June 18, 2009, the Supreme Court handed down a judgment interpreting the Age Discrimination in Employment Act (ADEA.) The 5-4 split decision raises a hurdle for plaintiffs trying to prove that adverse employment actions were the result of age discrimination on the part of employers.

Before the High Court’s recent pronouncement, ADEA cases were usually decided using a burden shifting framework. Under this analysis, once the plaintiff produced evidence showing that age was a motivating factor in the demotion or firing, the burden was put on the defendant to prove that the action would have been taken regardless of age.

According to the court, this analysis is not authorized by the language of the ADEA. The correct approach, says the court, is for the burden to always stay with the plaintiff. Now, to be successful in an age discrimination suit, a plaintiff must prove by a preponderance of the evidence that, with regards to the adverse employment decision, age was not just a motivating factor, but was the determinative factor. With the conclusion of many cases dependent on who ultimately has the burden of proof, this decision puts plaintiffs at a great disadvantage.

Though this decision is a victory for employers, it rests on the language of ADEA legislation. If Congress feels the effects are too unfair to employees, it is free to amend the statute to restore the burden shifting framework.

If you feel you have been the victim of age discrimination in the workplace, please do not let this decision deter you from seeking to defending your rights. Contact a qualified attorney to discuss your legal options.

Puzzling provisions: Workers’ Compensation

 The two most puzzling provisions of the Massachusetts Workers’ Compensation statute, M.G.L. c. 152, are sections 34 and 35. In a nutshell:

• Section 34 involves compensation for total incapacity. It states, “[d]uring each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case [the] weekly compensation shall be equal to his average weekly wage.” It is good to keep in mind that the employee cannot collect workers’ compensation benefits under this section for more than 156 weeks.
  
  Section 34A relates to permanent and total incapacity. Under those circumstances, the insurer pays the employee a weekly compensation equal to two-thirds of his or her average weekly wage pre-injury, but neither more than the maximum nor less than the minimum weekly compensation rate.



• Section 35 concerns partial incapacity, and states that, “during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four.”

Additionally, it is noteworthy that at the insurer’s request, a claimant must submit to an independent medical examination (IME,) pursuant to Rule 35 of the Massachusetts Rules of Civil Procedure. Finally, on April 16, 2009, the Oregon Department of Consumer and Business Services reported that Massachusetts has the third-lowest workers’ compensation premium rates in the country, with decreases of over seventeen percent attributable to Governor Patrick’s administration.

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.

When an employment test violates the Civil Rights Act – an employer’s dilemma

When an employer is looking to promote employees, standardized testing can be a great way to help choose which employees best fit prospective positions. The process allows for an objective evaluation of an employee’s skills and competency. Using such an unbiased measure can help to ensure that employment decisions are based on merit, allowing the most qualified candidates to attain the appropriate positions. The problem for employers, as shown in the recent Supreme Court decision, is when the test proves to not be as unbiased as the employer hoped.

In 2003, the City of New Haven, Connecticut was looking to make promotions within its fire department. Exams were administered with the understanding that the results would be used to determine who would be considered for advancement. The tests were prepared by an outside agency and were certified to be racially neutral. 118 firemen took the examination. The results of the test showed that of the 27 black firemen tested, not one would have been considered for a promotion.

Confounded by the result, the city decided to throw out the results of the test. The concern was that using the test scores might be deemed to violate the 1964 Civil Rights Act, which forbids employment practices that have a disparate impact on minorities.

However, the same legislation also prohibits intentional racial discrimination. Accordingly, the firefighters who would have qualified for the promotion sued the city claiming the decision to invalidate the exam was based solely on race.

Ultimately, the Supreme Court agreed with the aggrieved firemen that the city violated their rights. The Court recognized the difficult situation facing the city but reasoned that taking the race-based action would only be warranted if there existed a “strong basis in evidence” that using the test scores would result in the city being held liable in a disparate impact lawsuit. The city did not produce such evidence to meet this burden.
    
The important lesson for employers to take away from this case is that decisions predicated on race do not have to have sinister motivations to be unlawful. In this case, New Haven was trying to operate in the spirit of the Civil Rights Act, however, unfortunately, in doing so, they violated that very law.