Erica Murphy

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Court Decisions Leave Companies Treading Carefully with Employees

Posted by Erica Murphy on Jan 26, 2011 1:37:00 PM

Separate rulings this week from the United States Supreme Court and the Massachusetts Supreme Judicial Court will significantly limit the actions that employers may take when addressing conflicts with employees.

Employment lawThe U.S. Supreme Court ruled unanimously on Monday that an employee who was terminated shortly after his fiancée filed a discrimination charge against their mutual employer may sue under Title VII of the Civil Rights Act of 1964 for third-party retaliation.

In Massachusetts, the Supreme Judicial Court ruled on Tuesday that a company may not dock a worker’s pay after unilaterally determining that the worker was responsible for damaging property.

The decision about third-party retaliation came in Thompson vs. North American Stainless LP. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless, LP (NAS).  Three weeks after Regalado filed a sex discrimination charge against NAS with the Equal Employment Opportunity Commission (EEOC), the company fired Thompson.  Thompson filed suit against NAS under Title VII claiming that the company fired him to retaliate against Regalado for filing her EEOC charge. 

The Supreme Court ruled that “injuring [Thompson] was the employer's intended means of harming Regalado…In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.”

According to the Court, Title VII’s anti-retaliation provision covers conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court unanimously concluded that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” 

Bu the Court refused to identify a class of relationships for which third-party retaliation would be unlawful. So while this decision will likely result in more lawsuits being filed by spouses and significant others, the Court’s reluctance to define “zone of interests,” makes the practical implications of the decision somewhat difficult to predict.

For now, employers should tread carefully before terminating a spouse or close relative of an employee who filed a discrimination charge or lawsuit.  Employers should also re-examine policies and procedures for dealing with internal complaints in an effort to minimize the risk of a retaliation complaint.

According to EEOC statistics, retaliation became the most frequently cited form of on-the-job discrimination in 2009 (33,613 charges), overtaking race discrimination (33,579 charges) by a slim margin.  Given this decision, those numbers are likely to increase further. 

The Massachusetts ruling came in the case of ABC Disposal Service Inc., a New Bedford-based trash and recycling pickup company that wanted to cut down on damage by their workers to the company trucks and other people’s property.

The company instituted a policy saying that if it determined that an employee was at fault, the workers could either agree to pay for the damage through a deduction from their wages or be disciplined. The company said that the program led to a substantial reduction in damage. But the SJC said that under the Massachusetts Wage Act, employers are prohibited from making such deductions.

“The statutory language and the interplay of §§148 and 150 of the Wage Act reflect that employee deduction agreements of the type at issue in this case constitute special contracts that §148 prohibits unless the deductions are valid setoffs for clear and established debts within the meaning of §150,” Judge Margot Botsford wrote for the SJC.

Stay tuned to the HR Edge and the AIM Business Insider blog for additional detailed information and updates. 

Topics: AIM, Employment Law, U.S. Supreme Court, Massachusetts Supreme Judicial Court

Massachusetts Employers Scramble to Implement Social Security Tax Cut

Posted by Erica Murphy on Jan 13, 2011 1:54:00 PM

The extension of the Bush-era tax cuts signed by President Obama on December 17 is keeping employers busy in the New Year as they adjust their policies and systems to the new law.

Social Security TaxThe $801 billion tax package (The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, for those keeping score at home) includes a provision to reduce Social Security payroll taxes for most U.S. workers for one year from 6.2 percent to 4.2 percent on wages up to $106,800.  Employers must make changes to their payroll systems to accommodate the new tax rate by January 31.  The employer tax rate for Social Security remains unchanged at 6.2 percent.

The act also includes a two-year extension of the tax exclusion for employer-provided tuition assistance.  Section 127, which allows employees to exclude up to $5,250 a year in employer-provided tuition assistance for undergraduate and graduate-level courses, has been a popular tax provision.

The legislation also extends unemployment benefits for many Americans through 2011.  The unemployment benefit extension will not apply to unemployed workers who have exhausted the maximum combined state and federal assistance of 99 weeks.  The provision will ensure that long-term unemployed people in the states hardest hit by the recession will receive up to 99 weeks of unemployment benefits, rather than the 26 weeks normally available.

Topics: Associated Industries of Massachusetts, AIM, Unemployment insurance, Taxes

CORI Reform Forces Many Employers to Change Job Applications

Posted by Erica Murphy on Aug 25, 2010 10:17:00 AM

In the iconic 1960s folk song Alice’s Restaurant, folk singer Arlo Guthrie is about to be drafted when a military recruiter asks, “Have you ever been arrested?” The question provokes a detailed retelling of Guthrie’s arrest for littering one Thanksgiving in Stockbridge, Massachusetts.

CORI ReformCome November, most Massachusetts employers will no longer be able to ask prospective employees about their criminal histories – at least on job applications. The new Massachusetts criminal records reform law prohibits employers from asking questions on an “initial, written application form” about an applicant’s “criminal offender record information,” which includes criminal charges, arrests, and incarceration.

That means you have to replace your employment application if it contains any language related to criminal history, such as:

Have you ever been convicted of a felony?  If yes, give dates and details of conviction.


Have you been convicted of a misdemeanor within the past five years other than a first conviction for any of the following misdemeanors:  drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace?

These questions have been legal and commonplace on Massachusetts employment applications for years, but the rules will change when the new law takes effect in November.

Governor Patrick signed the Criminal Offender Record Information (CORI) reform on August 6.  The provision governing employment applications amends a portion of the Massachusetts Fair Employment Practices Law that allowed questions about felony convictions and about misdemeanor convictions not protected from disclosure.

The only exceptions to the initial job application requirements in the CORI reform law are for (1) positions for which a federal or state law, regulation, or accreditation disqualifies an applicant based on a conviction; or (2) employers who are subject to an obligation under a federal or state law or regulation not to employ persons who have been convicted. 

The CORI reform law creates many additional questions for employers regarding the hiring process.  At this time, the Massachusetts Executive Office of Public Safety and Security is charged with creating rules and regulations on CORI reform, which will help to answer many outstanding questions.  Stay tuned for additional detailed information and guidance. 

Please call AIM’s HR Hotline at 800-470-6277 with questions about the new criminal records law. AIM also offers legally compliant job applications customized with your company logo. 

Topics: Associated Industries of Massachusetts, AIM, CORI, Human Resources

Employer Policies Should Reflect New Massachusetts Texting Ban

Posted by Erica Murphy on Jul 14, 2010 2:02:00 PM

TextingDrivingSmallDoes your company allow employees to text or e-mail while driving for business?  Even if not expressly allowed, is it an accepted practice among employees?

In light of the new Massachusetts safe-driving law, employers should adopt and consistently enforce a written policy prohibiting texting while driving.  Such a policy will put employees on notice that the company takes the new law seriously and requires compliance.

A no-texting policy could also protect the employer from liability should an employee, while driving for company business, injure or kill someone as a result of conduct prohibited by the law.

Moreover, while Massachusetts’s safe driving law does not prohibit talking on a cell phone while driving, employers should consider adopting a policy prohibiting employees from using cell phones while driving for business purposes.  At the very least, companies that allow cell phone use should promote safer cell phone use by requiring hands-free technology, or that an employee pull over and stop the car before using the phone. 

Governor Deval Patrick signed the safe-driving bill on July 2.  Here are the highlights:

  • Bans all operators of motor vehicles, including law enforcement officers, from text messaging.
  • Prohibits drivers under 18-years of age from using any type of cell phone or mobile electronic device, whether hand-held or hands-free.
  • Requires drivers age 75 and older to renew their license in-person at a registry of Motor Vehicles (RMV) and to undergo a vision test every 5 years.
  • If physicians or law enforcement officers have cause to believe an operator is not physically or medically capable of driving safely, they may report their opinion to the RMV for a medical evaluation. 
  • Prohibits operators of public transportation vehicles from using any type of cell phone or mobile electronic device, whether hand-held or hands-free.
  • Drivers who have three or more surchargeable incidents within a 24-month period will be subject to an examination to determine their capacity for driving safely.

Topics: Associated Industries of Massachusetts, AIM, Employment Law, Employment Law, Human Resources, Deval Patrick

Confused about the COBRA Subsidy? Here's What You Need to Know

Posted by Erica Murphy on May 3, 2010 1:24:00 PM

Three extensions of the federal COBRA subsidy program, all of them short term and two of them retroactive, have prompted many Massachusetts HR professionals to ask AIM for simple, plain-language guidance for complying with the law and ensuring that the right notices go out to the right people at the right time.

Consider it done.

The U.S. Department of Labor (DOL) released updated model notices on April 27 reflecting changes to the COBRA subsidy program under the recently enacted Continuing Extension Act of 2010 (CEA). 

Under CEA, individuals who lose health insurance coverage due to an involuntary termination between April 1 and May 31 are now potentially eligible for the 65 percent federal subsidy of COBRA premiums.  Prior to CEA's enactment, employees involuntarily terminated after March 31, 2010 would have been ineligible for the subsidy. 

CEA defines an assistance eligible individual (AEI) as the employee or other qualified beneficiary who timely elects COBRA coverage following a qualifying event related to an involuntary termination of employment that occurs at any point from:

  • September 1, 2008 through May 31, 2010; or
  • March 2, 2010 through May 31, 2010 if:
  1. the involuntary termination follows a qualifying event that was a reduction of hours; and
  2. the reduction of hours occurred at any time from September 1, 2008 through May 31, 2010.

The DOL has issued model notices that plan administrators may use to describe the premium subsidies for people who may qualify.  Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy legal notice provisions.  AIM members may access these model notices, notated with practical clarifications, on the AIM Online Resource Center.  These are model notices only, and may be modified to meet each employer's needs.

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Topics: Associated Industries of Massachusetts, AIM, COBRA Subsidy

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