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Brad MacDougall

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Legislature Tightens Access to Criminal Records; Adds Employer Protection

Posted by Brad MacDougall on Apr 4, 2018 4:46:57 PM

The Massachusetts Legislature today passed a criminal-justice reform bill that narrows the ability of employers to research the criminal records of job applicants, but also provides legal protection from negligent-hiring claims to companies that are unable to view a sealed criminal record.

ScalesofJusticeVerySmallThe state Senate and House of Representatives both passed the measure with overwhelming majorities. It now goes to Governor Charlie Baker, who has 10 days to sign or veto it.

Inclusion of the negligent-hiring provision grew out of discussions brokered by AIM last summer between sponsors of the bill and employers who rely upon criminal background checks through the Massachusetts Criminal Offender Records Information (CORI) system.  The provision protects employers that conduct background checks and end up hiring individuals with criminal records that are sealed, expunged, or no longer available to employers. 

Key elements of the reform bill for employers include:

  • Accelerates the ability of offenders to seal records from 10 years to seven years for felonies and from five years to three years for misdemeanors.
  • Raises the threshold that defines felony larceny from $250 to $1200, thus classifying more cases as misdemeanors that can be quickly sealed or expunged.
  • Assures that cases dismissed before arraignment do not appear on criminal records.
  • Assures that youthful offender cases tried in juvenile court are treated as juvenile instead of adult CORI.
  • Allows expungement of non-serious cases up to age 21 (both juveniles and young adults).
  • Prevents employers from inquiring about sealed or expunged cases.

Organizations that serve vulnerable populations, such as school systems or nursing homes, would continue to have broader access to criminal records.

AIM members with questions about the status of the legislation should contact Brad MacDougall at bmacdougall@aimnet.org. Members with questions about how the measure will affect their companies should call the AIM Employer Hotline at 800-470-6277.

Topics: Employment Law, CORI, Human Resources

Attorney General Releases Wage-Equity Guidance for Employers

Posted by Brad MacDougall on Mar 1, 2018 12:42:05 PM

Attorney General Maura Healey today issued much-anticipated guidance for employers on complying with the new Massachusetts wage-equity law that takes effect on July 1.

AG.Maura.Healey.jpgThe 30-page guidance document addresses key issues such as the definition of comparable work, the employees who will be covered by the law, permissible variations in pay, and the subjects that may no longer be discussed during employment interviews. There is also a downloadable calculator designed to help smaller businesses to identify differences in pay that may require analysis.

“Associated Industries of Massachusetts (AIM) and its member employers are pleased to have played a constructive role in the development of the pay equity law and guidance,” said Richard C. Lord, President & CEO of AIM.

“We appreciate the efforts of Attorney General Healey and staff who have taken seriously the opinions of the employer community. AIM is now committed to helping Massachusetts businesses comply with the law and we look forward to working with the attorney general on those efforts.”

The first step in that compliance education effort will take place on March 13 and 15 as Genevieve Nadeau, Chief of the Attorney General’s Civil Rights Division, will join two AIM webinars looking at details of the new law. The March 13 webinar is for small employers while the March 15 session is for larger employers.

The law provides different compliance measures based on the size of a company’s comparable-work groups. For the purposes of the two webinars, large employers are those with one or more comparable work groups with 30 or more employees.  Comparable work groups cross organizational lines and departments and are comprised of jobs for which work is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.

Smaller employers will likely be able to use the Attorney General's calculator exclusively. AIM members with questions about their status may call the Employer Hotline at 800-470-6277.

The wage-equity law, signed by Governor Charlie Baker on August 1, 2016, is intended to promote salary transparency, limit questions to job candidates about salary history, and encourage companies to conduct reviews to detect pay disparities. But the law also recognizes legitimate bases for pay differences among employees such as performance and differences in education, training, and experience.

The law states that “no employer shall discriminate in any way based on gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.

The Attorney General’s guidance document outlines the instances under which wage differentials are permitted. Those differentials may be based upon:

  • a system that rewards seniority with the employer;
  • a merit system;
  • a system that measures earnings by quantity or quality of production, sales, or revenue;
  • the geographic location in which a job is performed;
  • education, training or experience to the extent such factors are reasonably related to the job in question; or
  • travel, if the travel is a regular and necessary condition of the job.

Joining Nadeau for the AIM small-business wage-equity webinar will be Kyle Pardo, Vice President of AIM HR Solutions, and David Wilson and Arielle Kristan, lawyers at the firm of Hirsch Roberts and Weinstein. The expert panel for the large-company webinar will include Nadeau, Pardo, and lawyers Robert Fisher and Hillary Massey of Seyfarth Shaw LLP. Fisher chairs AIM’s HR-Labor Law Committee.

 

Register for the Small-Business Wage-Equity Webinar

 

Register for the Large-Business Wage-Equity Webinar

Topics: Attorney General Maura Healey, Pay Equity, wage equity

Supreme Court Hears Challenge to Graduated Tax Proposal

Posted by Brad MacDougall on Feb 6, 2018 10:49:37 AM

Lawyers for five prominent business leaders, including AIM President Rick Lord, argued before the Massachusetts Supreme Judicial Court today that a proposed surtax on incomes of more than $1 million violates the state constitution.

Adams Courthouse.jpgThe business leaders are challenging a proposed 2018 ballot question that would amend the state constitution to impose a graduated income tax and direct the revenue to be spent on transportation and education. The amendment would add a new four percentage-point tax (representing an 80 percent increase in the personal income tax rate) on all incomes more than $1 million. 

The plaintiffs assert that the proposal is riddled with constitutional flaws. It combines a graduated income tax that has been rejected five previous times by Massachusetts voters with attractive spending in a prohibited manipulation of the vote called “logrolling.”

And it does something that has never been done before: never in the history of Massachusetts has a tax or tax rate been set in the constitution, making the new tax essentially permanent and unchangeable. 

Attorney Kevin Martin of Goodwin Procter, who represents the business leaders, argued that it is critical to understand the difference between typical initiative petitions (also referred to as ballot questions) that amend state statutes, and this ballot question that would change the Massachusetts constitution and strip the Legislature of its ability to easily amend the policy in the future. Only three initiative petitions to amend the constitution have ever appeared on the ballot. 

The named defendants in the lawsuit are Attorney General Maura Healey and Secretary of State William Galvin. 

The court today pressed advocates of the ballot question and the Attorney General’s office about the issue of combining the seemingly separate issues of a tax increase and funding for transportation and education.

“Why not add energy, health care, pension reform?” asked Associated Justice Scott L. Kafker, who mused that voters were apparently being asked to render a decision on three distinct policy matters within a single ballot question.

“So, what is the unified public policy here?” added Associated Justice Elspeth B. Cypher.

AIM opposes the graduate-tax proposal on a policy basis because it would harm thousands of small and medium-sized business that pay taxes on an individual basis. The Massachusetts Department of Revenue estimates that 80 percent of the returns that would be affected by the surtax include some amount of business income.

The five plaintiffs in the suit are: Christopher Anderson, President of the Massachusetts High Technology Council, Inc. (MHTC); Christopher Carlozzi, Massachusetts State Director of the National Federation of Independent Business (NFIB); Richard Lord, President and Chief Executive Officer of Associated Industries of Massachusetts (AIM); Eileen McAnneny, President of the Massachusetts Taxpayers Foundation (MTF); and, Daniel O’Connell, President and Chief Executive Officer of the Massachusetts Competitive Partnership (MACP). 

“We appreciate the careful consideration the SJC is giving this case, which is the first since 1937 to involve an initiative petition to amend the constitution.  Their questions to both sides were thoughtful and probing, and we await their decision,” said Martin.

Conact Brad MacDougall a bmacdougall@aimnet.org to receive updates on this issue.

AIM Weighs In On Key Employment-Law Issues

Posted by Brad MacDougall on Jan 12, 2018 12:48:37 PM

Associated Industries of Massachusetts weighed in yesterday on 73 bills pending before a key legislative committee considering employment-law issues ranging from independent contractors to the use of non-compete agreements.

State House 2015.jpgThe association delivered  a letter to members of the Joint Labor & Workforce Development Committee as the panel approaches a February 7 deadline to report out bills with either a positive or negative recommendation. AIM supports 29 bills now before the committee and opposes 44.

Among the measures that employers support are bills streamlining the complex definition of an independent contractor and compromise limitations on non-compete agreements that recognize the fact that employers often compensate workers for signing such agreements.

AIM opposes bills that would establish paid family and medical leave, increase the minimum wage, and impose vicarious liability for wage violations on any company that hires subcontractors. AIM also opposes legislation (S.1013) that would create civil liability and define workplace bullying.

“The February 7 deadline for Beacon Hill committees to report out bills under the Legislature’s Joint Rule 10 signals the start of a critical period for employers and the issues that affect them,” said John Regan, Executive Vice President of Government Affairs at AIM.

“There will be a flurry of activity between now and the end of the two-year legislative session on July 31. Employers need to pay close attention since important bills often move quickly during this period.”

The independent contractor issue revolves around an overly restrictive statute that leaves Massachusetts on the sidelines of one of the fastest developing sectors of the economy.

One out of every three American workers, from software engineers and researchers to graphic designers, freelance journalists and nannies, today works independently outside the bounds of traditional 9-to-5 employment. The trend includes the so-called sharing economy that provides apps allowing individuals to exchange goods and services ranging from rides to housecleaning.

But Massachusetts' share of that job growth is threatened by a state law that imposes a confusing and complex three-factor test to determine whether a worker is an employee or independent contractor.

On non-compete agreements, AIM has fought relentlessly for several years on behalf the vast majority of Massachusetts employers who wish to preserve the use of non-competes to protect intellectual property. The association supports a compromise that would limit non-competes to one year and give employees the opportunity to consult a lawyer when signing a non-compete, but not require companies that compensate employees at the time they sign non-competes to pay them again during the restricted period.

AIM also supports a group of measures intended to address discrimination and harassment in the workplace. One bill would allow employers to ask previous employers questions about an applicant’s work history (H.1046), while a second would encourage employers to engage in voluntary training regarding non-discrimination (H.1037/H.1047) and third would rewrite a highly confusing and problematic statute that makes adding disciplinary matters to a personnel record difficult (H.1049/S.1044).

The paid family and medical leave and minimum wage initiatives opposed by employers mirror similar measures headed to the statewide ballot in November. A third ballot question would create a constitutional amendment imposing a 4 percentage-point surtax on incomes of more than $1 million for thousands of subchapter-S and other pass-through business in Massachusetts.

AIM President and Chief Executive Officer Richard C. Lord and four other prominent business leaders are challenging the proposed tax amendment in court.

Please contact me at bmacdougall@aimnet.org for more information on any of these issues.

Topics: Independent Contractor Law, Massachusetts Legislature, Employment Law, Non-Compete Agreements

Reduced Employer Access to Criminal Records Harms Ex-Offenders

Posted by Brad MacDougall on Nov 13, 2017 8:00:00 AM

Update: The Massachusetts House of Representatives passed a comprehensive criminal justice reform bill last week that will narrow employer access to the criminal records of job applicants. AIM believes such restrictions will hurt the very ex-offenders they are designed to help. 

It also seeks to expunge some offenders’ criminal records. Both the House and Senate bills would allow convictions to be sealed after seven years for a felony and three years for a misdemeanor, down from 10 and five years today.

The House bill would also allow someone to seal a conviction for resisting arrest, which currently cannot be sealed.

The House bill expands the ability for someone who had a record sealed to be able to say he has no record in applications for housing or professional licenses.

The House and the Senate will next convene a committee of conference to negotiate the differences in the two pieces of legislation and then send it to Gov. Charlie Baker’s desk.

AIM told members of the state House of Representatives this morning that  the proposed narrowing of employer access to the criminal records of job applicants will reduce employment opportunities for former offenders.

ScalesofJusticeVerySmall.jpgAIM is concerned about language in a criminal justice reform to be debated today that would make access to information through the Criminal Offender Record Information (CORI) more difficult by sealing records and limiting access.

AIM believes the changes would harm the very people those the measure is designed to help.  Without access, employers are left without relevant information about potential hiring decisions. Restricting an employer’s access to information has been shown to hinder job applicants and employer’s ability to maintain a safe workplace. 

The commonwealth’s largest employer association has provided feedback in a number of ways during the current legislative session. AIM sent letters to the Joint Committee on the Judiciary on April 28, 2017 and on July 17, 2017, and also hosted a briefing on this topic with the legislative sponsor and AIM members.

AIM appreciates that those and other conversations resulted in the inclusion of a negligent-hiring provision contained in SECTION 87 subsection 100S of the proposed reform bill.  AIM is also supportive of a provision that would enable the commonwealth to move towards fingerprinting and exchanging data with the National Criminal Information Center (NCIS) to ensure that records are accurate and connected to the correct person.

The Massachusetts Senate approved its own version of criminal justice reform on October 26.

AIM is concerned about the following provisions:

Sections 81-86 and 87: Sealing and Expungement of a Criminal Record: As proposed, the language would reduce the wait time to seal a misdemeanor conviction from five years to three years and a felony conviction from 10 years to seven years.  To address this AIM supports:

  • Amendment #50 to remove sealing and expungement provisions
  • Amendment #132 to allow employers that have employees with access to financial information, cash instruments and vulnerable populations to retain access to five years of misdemeanors and 10 years for felony convictions as currently provided under law
  • Amendment #134, to provide employers with six months to make changes to job applications, internal policies and to conduct training for hiring managers

Section 84 and 87 Job Applications: This language requires employers to amend job applications to acknowledge the candidate’s proposed rights under the expungement provision.  Employers would be required to add the language from section 84 and section 87, which contains similar language for job applications.  To address this AIM supports:

  • Amendment #130 and #131, to retain currently proposed language into one paragraph to address a candidate’s rights regarding sealing and expungement.
  • Amendment #120, to provide employers with six months to a year to fully implement changes in job applications, internal policy documents and to conduct training for hiring managers.

AIM supports amendment #50 to strike the language and amendment #118, which would provide for six months for employers to be in compliance and conduct training for hiring managers.

Sections 49-56, 62: Felony Thresholds: This language will make it challenging for employers to address growing concerns with larceny and ongoing threats related to personal information and credit card fraud.  AIM supports amendment #126, which would strike these provisions.

Takeaways:

 

 

Topics: Employment Law, CORI, Massachusetts House of Representatives

AIM, Citing Safety Concerns, Opposes Criminal Justice Bill

Posted by Brad MacDougall on Oct 25, 2017 10:00:00 AM

Associated Industries of Massachusetts (AIM) this morning announced its opposition to the state Senate’s criminal justice reform bill because the measure would unduly restrict the ability of employers to ensure the safety of employees, customers and others in the workplace.

ScalesofJusticeVerySmall.jpgThe proposed legislation will, in fact, harm the very people the proponents of the bill seek to help. AIM-member employers met with the legislative sponsor of the bill in July and made clear that candidates for jobs are less successful in achieving gainful employment when employers have less information.

“An employer is more likely to hire an ex-offender when that employer has the information available to make a balanced decision,” said John Regan, Executive Vice President of Government Affairs at AIM.

AIM has a long history of involvement with efforts to balance the need for employers to conduct responsible criminal background checks with the ability of offenders to find employment.

The association helped to forge the 2009 Criminal Offender Records Information (CORI) legislative compromise and worked on the recent regulatory changes to CORI. The business community made significant concessions in the 2009 bill, but the current legislation goes far beyond what employers agreed to in 2009.

Employers believe that criminal background checks are necessary to ensure that the company or institution is complying with state and federal regulations, in addition to international standards. These standards apply for a variety of businesses including hospitals and financial institutions.

Employers also believe that inability to access criminal histories makes companies vulnerable to claims for everything from negligent hiring and failure to meet regulatory obligations to failure to protect client data and failure to protect visitors from harm.

“Employers face significant risk and legal liability for hiring and retaining employees who pose a risk. As written, the legislation does not acknowledge that employers would still be responsible for negligent hiring and negligent retention without a waiver of liability,” Regan said.

The Senate is expected to debate S.2185 and several amendments tomorrow.

Takeaways:

 

Topics: Massachusetts senate, Employment Law, CORI

Infographic: Paid Leave Law Raises Benefit Costs by 87 Percent in California

Posted by Brad MacDougall on Jun 26, 2017 8:30:00 AM

The Massachusetts Legislature is considering a paid leave bill that would establish the right of employees to receive job-protected paid family and paid medical leave.  Benefits would include up to 16 weeks of paid family leave, and 26 weeks of paid medical leave.  Weekly benefits would begin at 50 percent of the employee’s weekly wage and capped at $1,000 per week.

But benefit costs would accelerate quickly if the bill becomes law. The 50 percent salary replacement level required at implementation in January 2019 would increase to 90 percent by January of 2021.

How fast will costs increase? Consider the following information about California's decade-old paid family leave law:

Paid Leave.jpg

 State of California
Labor and Workforce Development Agency

Register for the Paid Leave Webinar

 

Topics: Employment Law, Mandated Paid Leave, Paid Family Leave

Paid Leave Bill Would Create Massive New State Bureaucracy

Posted by Brad MacDougall on Jun 12, 2017 8:30:00 AM

If you’re an employer who enjoys navigating the endless disputes, hearings and paperwork of state bureaucracies – think the unemployment system – then you’ll love the proposal now before the Massachusetts Legislature to mandate paid family leave in the commonwealth.

StateHouse-resized-600.pngThat’s because the paid leave proposal, which will be the subject of a State House hearing tomorrow, would create a new office Department of Family and Medical Leave within the Executive Office of Labor to administer the new leave program. No one on Beacon Hill will say publicly how much it will cost to run the department, but AIM projects that employer-paid family leave will require an operation similar in size to the state Department of Unemployment Assistance, which operates with a budget of $70 million.

And that doesn’t account for the cost to employers of the new leave program itself. AIM estimates that the likely cost per week per employee to fund the program will exceed $520 per employee yearly, more than the average $508 per employee that companies now pay for the $1.3 billion Massachusetts Unemployment Insurance program.

The Senate paid leave bill creates a new Massachusetts law establishing the right for employees to receive job protected paid family and paid medical leave under certain circumstances.  Benefits include up to 16 weeks of paid family leave, and 26 weeks of paid medical leave.  Weekly benefits initially are 50 percent of the employee’s weekly wage and capped at $1,000 per week.

But benefit costs would accelerate quickly if the bill becomes law. The 50 percent salary replacement level required at implementation in January 2019 would increase to 90 percent by January of 2021.

Furthermore, the average weekly wage would then be tied to the Consumer Price Index for the Boston-Cambridge-Quincy consolidated metropolitan statistical area. This an extraordinarily high rate of compensation that would focus the wage rate on the area of the commonwealth with the most expensive cost of living. The result will distort the economic complexity of different areas in Massachusetts, placing an undue burden on employers and employees living in less costly areas.

Senate President Stan Rosenberg said recently that the paid family leave issue will go to the statewide election ballot in 2018 if the Legislature does not approve it.

“I am hopeful that the legislature will take this question up during this term and get it to the Governor's desk," Rosenberg wrote during a question-and-answer session on Facebook. "If we fail to do so, I expect there will be a ballot question putting this matter into the hands of voters. It would be far better to do it in the legislature than the ballot. Everyone concerned about this should contact their State Representative, their State Senator, and the Governor."

Associated Industries of Massachusetts opposes the bill and will testify against it on Tuesday. John Regan, Executive Vice President of AIM, said that the last thing employers need is another regulatory bureaucracy to divert time, energy and resources from business growth.

“We agree with the proponents of these bills that Massachusetts’ citizens need to balance the needs of work and family.  We do not agree, and do not believe, that this legislation is a reasonable, manageable, or affordable approach in addressing those needs, either from an employee or employer perspective,” Regan said.

Many AIM member employers already provide paid leave through disability insurance.

According to the 2016 AIM Benefits Survey, 87 percent of member companies offer short-term disability to their employees with benefits ranging from 51 to 70 percent of salary replacement. Seventy-nine percent offer long term disability insurance and 59 percent have a leave of absence policy.

AIM believes a mandated paid leave law will prompt many of those companies to discontinue their current policies and direct all employee leaves through the state program.

The leave bill provides that family leave is leave taken by an employee to provide care for a family member.  Family is defined as spouse, domestic partner, child, parent, parent of a spouse or domestic partner, an individual who stood in loco parentis to the employee when the employee was a minor child, grandchild, grandparent, or a sibling of the employee.

Leave may be for any of the following reasons: to bond with the employee's child during the first 12 months after the child's birth or the first 12 months after the placement of the child for adoption or foster care with the employee; for a serious health condition of a family member; or because of a qualifying exigency pursuant to the Family and Medical Leave Act, 29 U.S.C. 2612(a)(1)(e), arising out of a family member of the employee being on active duty in the armed forces of the United States.

Medical leave is leave taken by an employee from employment due to a serious health condition of the employee that renders the employee unable to perform the functions of the employee’s position.

AIM will conduct a complimentary Brown Bag Webinar at noon on June 27 to review the details of the paid family leave proposal. Bring your lunch and your questions.

Register for the Paid Leave Webinar

State Readies New Rules on Background Checks

Posted by Brad MacDougall on Apr 13, 2017 10:55:07 AM

Editor’s note:  The following blog was written by Jean M. Wilson, Barry J. Miller, and Alison Silveira of Seyfarth Shaw, which is a member of AIM’s HR-Labor and Employment Law Committee. 

The Massachusetts legislature passed sweeping reform in May 2012 to the commonwealth’s Criminal Offender Record Information (CORI) law, which regulates the ability of employers to conduct criminal background checks.

ScalesofJusticeVerySmall.jpgNow, prompted by Governor Charlie Baker’s regulatory reform initiative, the Department of Criminal Justice Information Services (DCJIS) has new rules for the CORI law.  Several of these changes will require employers to alter their approach to criminal history checks:

  1. Who is an Employee? The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees. DCJIS has, in effect, broadened the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers

  2. What is CORI? The prior regulations did not define “Criminal Offender Record Information,” beyond a list of examples of information included or excluded from the system.   The regulations now define CORI, but the definition leaves uncertainty as to what information, outside of that specifically provided by DCJIS, is inlcuded.  The regulations also now specifically exclude from the definition of CORI information related to criminal proceedings that were initiated against an individual before the individual turned 18, unless the individual is adjudicated as an adult.  Prior to the revisions, this threshold was 17.

  3. “Need to Know” List and New iCORI Agency Agreement - The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system. The iCORI Agency Agreement will, at a minimum, include the employer’s representation that:  (1) it will comply with the CORI laws and regulations; (2) it will maintain an up-to-date “need to know” list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the “need to know” list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it will be liable for any violations of the CORI law or regulations, and that individual users of the employer’s iCORI account may also be liable for violations of the CORI law or regulations.  The DCJIS has not yet issued the iCORI Agency Agreement. 

  4. CORI Acknowledgment Forms - DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.

  5. Storing CORI in the Cloud - DCJIS now permits employers to store CORI using cloud storage methods.  DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection.

  6. Additional Information for Pre-Adverse Action Notices - Employers who contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are currently required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action. 

  7. Obtaining CORI from Background Screening Companies: The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information that led many background screening companies to cease providing CORI.  Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker. 

Employers should work with their legal counsel and background check providers to ensure that their procedures and forms comply with these new changes. 

Massachusetts businesses should also be aware that there are legislative proposals regarding Criminal Justice reform and other specific proposals that would impact Criminal Offender Record Information (CORI) laws. 

Want to learn more about the new CORI regulations or the pending legislation? Please contact Brad MacDougall, Vice President of Government Affairs at AIM.  Based on interest, AIM may host a webinar to provide members with greater information.

Topics: Employment Law, Massachusetts employers, CORI

AIM, Advocates Reach Deal on Protections for Pregnant Workers

Posted by Brad MacDougall on Mar 1, 2017 3:56:22 PM

Associated Industries of Massachusetts has reached agreement with the advocacy group MotherWoman on compromise legislation to extend employment protection to pregnant workers in Massachusetts.
Pregnant2.jpg
The contours of the agreement were established late last year and affirmed recently when Senator Joan Lovely of Salem and Representative David Rogers of Belmont refiled the compromise bill.

The Pregnant Workers Fairness Act would require employers to make reasonable workplace accommodations for pregnant employees — more frequent or longer breaks, temporary transfer to a less strenuous or hazardous position, a modified work schedule, or seating for those whose jobs require extended standing. Businesses would not have to provide those accommodations if doing so would create an undue business hardship, defined as something “requiring significant difficulty or expense.”

AIM opposed early versions of the bill during the 2015-2016 legislative session because of concern among employers that the legislation provided an applicant or employee with unlimited power to reject multiple and reasonable offers of accommodation by an employer. The compromise bill addresses that concern and others

Richard C. Lord, president and CEO of AIM, said “AIM was pleased to work together respectfully on this bill with Senator Lovely, former Representative Ellen Story, and advocates from MotherWoman.  It is easy to confuse opposition to a draft of a bill with opposition to the issue itself. AIM is always willing to work with those seeking honest and effective compromise. That is exactly what happened with this legislation.”

Other AIM concerns addressed by the bill:

  • Provides clarity regarding definitions and terms related to current employees in need of accommodations related to pregnancy.
  • Aligns state and federal laws regarding reasonable accommodation as it relates to the essential functions of the job.
  • Provides flexibility rather than a mandating specific types of accommodations for employers and employees.
  • Provides a reasonable mechanism for employees and the employer to achieve a reasonable accommodation by engaging in a defined process, eliminating a concern by businesses that an employee could reject multiple reasonable offers of accommodation.
  • Adds language allowing the employer to evaluate undue hardship of an accommodation and the ability of employee to perform the essential functions of the job as it relates to an employer’s program, enterprise or business.
  • Provides opportunity for an employer to request documentation for certain cases to ensure that accommodations are reasonable for both employees and employers.
  • Limits provisions to current employees instead of employees and job applicants.
  • Reduces unnecessary burdens and allows for electronic or other means other than a “poster” for notifying employees.
  • Allows for certain accommodations to be either paid or unpaid.

MotherWoman said in a statement: “We are excited that we've reached agreement on how to level the playing field for the hard-working women of Massachusetts.

"Through a great collaborative effort among legislative sponsors, Rep. Dave Rogers, Rep. Ellen Story and Sen. Joan Lovely, our dedicated legal advocates at A Better Balance, and the team at AIM — who were so generous with their time and their attention to detail — we have a better proposal, which led to the refiling of this bill. It’s an important support for moms, children and families, and it makes good sense for both employers and employees."

The compromise faces a long process of legislative consideration. Senator Lovely expects the refiled bill will go before the Joint Committee on Labor and Workforce Development and its new chairs - Representative Paul Brodeur of Melrose and Senator Jason M. Lewis of Winchester - with a hearing scheduled later this year.

AIM and MotherWoman expect to support the measure at that time and hope that the bill will be considered by the full Legislature later in the session and sent to the governor for his approval.

Topics: Massachusetts Legislature, Employment Law

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