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A Model Policy for the New Distracted-Driving Law

Posted by Tom Jones on Dec 4, 2019 8:00:00 AM

Gov. Charlie Baker signed An Act Requiring the Hands-Free Use of Mobile Telephones While Driving on November 25. The law takes effect 90 days from the date of the governor’s signature.

Cell Phone in CarThe law may have a significant impact on companies with employees who are on the road with a need to communicate with the home office or customers.

The law does not focus solely on telephones but on "electronic devices." While the statute does not define an electronic device, the presumption will be that any iPhone, smart phone, tablet, GPS system or other electronic gadget that someone may use in a vehicle will be subject to this law.

Violators face new penalties that may include fines, remedial education and insurance premium surcharges.

The law defines hands-free mode to mean that a user engages in a voice communication or receives audio without touching or holding the device. The measure permits drivers to execute a single tap or swipe to activate, deactivate or initiate the hands-free mode feature.

What’s prohibited?

  • No operator of a motor vehicle shall hold a mobile electronic device.
  • No operator of a motor vehicle shall use a mobile electronic device unless the device is being used in hands-free mode.
  • No operator of a motor vehicle shall read or view text, images or video displayed on a mobile electronic device.

What’s permitted?

  • An operator may view a map generated by a navigation system or application on a mobile electronic device that is mounted on or affixed to a vehicle’s windshield, dashboard or center console in a manner that does not impede the operation of the motor vehicle.
  • An operator shall not be considered to be operating a motor vehicle if the vehicle is stationary and not located in a part of the public way intended for travel by a motor vehicle or bicycle.

The law provides for limited exceptions such as the use of a mobile electronic device in response to an emergency. The law defines an emergency as when the vehicle’s operator needed to report that:

  • the vehicle was disabled;
  • medical attention or assistance was required;
  • police intervention, fire department or other emergency services were necessary for the personal safety of the operator or a passenger or to otherwise ensure the safety of the public; or
  • a disabled vehicle or an accident was present on a roadway.

Repeat offenders will face some of the biggest phone bills they have ever seen. The law provides for three levels of fines, remedial education and insurance surcharges.

The fines under this statute are progressive in nature:

  • first offense-$100
  • second offense-$250; and
  • third and subsequent offenses-$500.

An operator who commits a second or subsequent offense shall be required to complete a program selected by the registrar of motor vehicles that encourages a change in driver behavior and attitude about distracted driving. It is likely that if there is any fee associated with attending this class, the cost will be borne by the employee.

The law also provides that if a person commits a third or subsequent offense it will be a surchargeable event against the driver’s insurance.

An operator found to be violating the law the first time will receive a warning up until March 31, 2020. After that, the law will be fully effective.

AIM HR Solutions has developed a model policy for member companies to use. It is available to all handbook subscription service members as part of their annual policy program. Other AIM members interested in receiving a copy of the policy should contact Beth Yohai or Kyle Pardo at 617.262.1180 for more information on the cost of the policy.

AIM members with questions about this or any other HR-related issue may call the AIM Employer Hotline at 1-800-470-6277.

Topics: Employment Law, Transportation

Government Proposes to Raise Overtime Threshold

Posted by Tom Jones on Mar 11, 2019 8:00:00 AM

The long-running saga of federal rules governing overtime pay took another twist last week when the U.S. Department of Labor (DOL) announced that it will increase the overtime-wage threshold to $35,308 per year from the current $23,660 per year.

The change would mean that workers who make less than $35,000 a year would be considered non-exempt and eligible for overtime pay no matter what their current classification. So, employers with exempt employees earning between $23,660 and $35,308 would need to reclassify them as non-exempt and pay them overtime if warranted or pay them at least $35,308 per year and provide them with sufficient duties to justify classifying them as exempt.

There are no proposed changes in the federal regulations to the white-collar duties test.

If adopted, the higher wage level will significantly increase the number of workers eligible for overtime pay. It does not appear as though the proposal will include any specific duty adjustments, but it remains possible. As part of the rule-making process, the DOL sent the proposal to the White House Office of Management and Budget in mid-January.

There is no clear timetable for when the draft regulation will be released or when it will take effect. Moreover, many groups on both sides of the issue are already talking about possible legal challenges, a process that could delay implementation by months or years.

It has been more than 15 years since the government changed the overtime rules.

Employers should remember in the meantime that paying an employee a salary does not make the employee exempt. Classification is nearly always about the duties.

Any employer questioning if one or more of its employees is currently misclassified or should be reclassified, needs to take the time to review the employee’s current duties to see if they meet the law’s requirements. While there is some degree of nuance in interpretation in deciding whether an employee is exempt, an employer needs to be able to justify its classification if challenged.

DOL has detailed information on its Web site.

If you have any questions about this or any other HR matter, please contact the AIM  Employer Hotline at 1-800-470-6277.

Topics: Employment Law, Overtime, Fair Labor Standards Act

Few Employers Change Drug Tests with Legal Marijuana

Posted by Tom Jones on Jan 30, 2019 8:30:00 AM

Drugtest1.2019Only 10 percent of employers plan to change their drug-testing policies now that recreational marijuana is legal in Massachusetts, a new Associated Industries of Massachusetts survey shows.

The member survey, conducted by AIM HR Solutions, found that two-thirds of the 52 Massachusetts employers who participated say they drug-test employees or job candidates. Three quarters of the companies that conduct drug tests do so for marijuana (THC).

Kyle Pardo, Vice President of Consulting Services for AIM HR Solutions, said the limited number of companies planning to change their marijuana testing policies reflects widespread uncertainty among employers as legal cannabis impinges on the idea of a drug-free workplace.

“Testing detects the presence of marijuana long after an employee may have used the drug during non-work hours. But there is no clear test to determine whether or not that employee is impaired and may represent a danger to co-workers or customers,” Pardo said.

Drugtest2.2019“It has created a confusing situation for employers.”

Recreational marijuana became legal in Massachusetts in 2016 and retail pot dispensaries began to open throughout the state at the end of last year.

Massachusetts law does not require any accommodation of on-site medical or recreational use of marijuana in any workplace or permit employees to come to work under any controlled substance. A recent Massachusetts Supreme Judicial decision requires employers to address an employee with a medical marijuana card in the same manner as those using any other lawfully prescribed medication.

Adding to the confusion is that employers in some federally regulated industries such as trucking and transportation, as well as many federal contractors are required to drug-test employees. Marijuana remains illegal under federal law.

Pardo recommends that employers make sure their hiring process and progressive discipline policy contain information on the drug testing policy and that applicants and employees sign for and acknowledge their understanding of such processes and policies.

Topics: Employment Law, Massachusetts employers, Marijuana

Hold Your Applause on Supreme Court Arbitration Decision

Posted by Tom Jones on Jun 4, 2018 1:04:23 PM

supremecourt.smallThe decision by the United States Supreme Court last week upholding the use of arbitration agreements to prohibit class-action lawsuits generated widespread cheering in the business community.

But employers would be well advised to hold their applause. 

That’s because this Supreme Court decision is unusual in that it does not draw a bright line making it clear what employers may or may not do. It simply opens the door for employers to pursue mandatory arbitration as an option.

Most importantly, the decision does not allow employers to use arbitration agreements to escape the “onerous” aspects of legally established remedies.

The court has made clear that while arbitration involves a change of forum from the courts to the private arbitration arena, and an elimination of class actions, it does not change workers’ substantive rights. Arbitrators must apply the same law that a court would apply and award the same substantive remedies for proven violations.

Employees will still be able to file a claim for nonpayment of wages, sexual harassment, or other adverse consequence at work.  They just won’t be able to do it as a class action.

The best advice to employers any time they face a new legally justified option - take time to weigh the options before moving ahead.  

The Supreme Court ruled that companies may use arbitration clauses in employment contracts to prohibit workers from banding together to take legal action over workplace issues. The vote was 5 to 4, with the court’s more conservative justices in the majority. The court's decision could affect some 25 million employment contracts.

Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by a federal law favoring arbitration and the court’s precedents. If workers were allowed to band together to press their claims, he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”

The ruling does not necessarily invalidate Massachusetts law on the topic of arbitration.

For example, a Massachusetts case from a few years ago centered around an arbitration waiver agreement that prohibited plaintiffs' recovery of multiple damages in any arbitration proceeding - a provision that directly conflicted with the Massachusetts mandatory treble damages law.

In 2013 the Massachusetts Supreme Judicial Court (SJC) declared the waiver of multiple damages in the arbitration agreement unenforceable, ruling that the FAA (Federal Arbitration Act) did not preempt the SJC from holding that waiver of multiple damages in these circumstances is void as contrary to Massachusetts public policy.

Given that arbitration is really a procedural strategy, there are many questions you should consider before adopting a change in your company’s practices. Some questions to ask yourself as a company include:

  • How will arbitration be a benefit to us?
  • How much will it cost to use it?
  • What is the potential cost vis-a-vis the likely benefit?
  • Will we be better off as an employer with such a policy in place?
  • If so, how?
  • How often do we get sued?
  • What issues do we get sued for? Wages? Discrimination?
  • If or when we do get sued, what is our success record under the current rules?

Consider that in discrimination cases filed at the Massachusetts Commission Against Discrimination (MCAD), the agency found “Lack of Probable Cause” (i.e. the case was dismissed) in 87 percent of the cases filed, according to its most recent annual report. Are you likely to do any better with an arbitrator?

One other thing to keep in mind is that federal and state administrative agencies, such as the Equal Employment Opportunity Commission (EEOC) or MCAD, are not bound by private arbitration agreements; they are able to sue over statutory rights where private claimants may not bring a case.

Before jumping on the bandwagon of arbitration, you need to engage in due diligence to see if it makes sense for your company.

Topics: Employment Law, U.S. Supreme Court

'Day Without a Woman' Poses Issues for Employers

Posted by Tom Jones on Feb 28, 2017 10:00:00 AM

Political activists are calling for women to stay home from work on March 8 as part of “A Day Without A Woman” general strike.

Womens March.jpgThe “one-day demonstration of economic solidarity” comes three weeks after a similar “Day Without Immigrants” caused thousands of people to remain out of work or to close their small businesses to protest Trump Administration policies on immigration. Some employers supported the walkout but at least 100 employees around the country who took part in the job action were fired.

Associated Industries of Massachusetts has taken no position on A Day Without a Woman, but since these strikes are expected to continue, the association believes it should help employers prepare to respond.

There are more questions than answers at this point, so our suggestion to employers is to proceed cautiously in dealing with employees who participate in the strike.

Issues to consider include:

  • Do employees have a legally protected right to skip work to protest or to support a political cause? If not, may an employer discipline employees who participate?
  • Are these employees on strike as defined under the National Labor Relations Act (NLRA), making it concerted - and thus legally protected - activity?
  • Does disciplinary action against immigrant employees equate to national-origin discrimination under federal and state law?
  • What, if anything, can an employer do to prevent employees from walking out?
  • How far may an employer go in monitoring employee political activities on/off the job?
  • May an employer terminate an employee for social media posts or for joining political groups?
  • Are there different rules for management versus non-management employees?
  • May employee use Paid Time Off or earned sick time to participate in the protest?
  • What constitutes reasonable advance notice for employees seeking to use Paid Time Off, vacation time or sick time?

The ability of employers to respond to workers who miss work to join political protests revolves largely around interpretation of the National Labor Relations Act (NLRA).

The act extends legal protections to non-union employees joining together to achieve a common end. So employers covered by the NLRA (i.e. nearly all employers in the U.S.) who take disciplinary action against employees for participating in a demonstration may expose themselves to a legal challenge.

The impact of losing an unfair labor practice case can be far reaching and expensive. It can also, in the extreme, result in a union being awarded representation even in the absence of an election.

Although disciplining an employee who doesn’t work a scheduled shift may be appropriate, employers need to make certain that it is consistent with company policies and practices and not impacted by the politics of the issue.

“The answer is somewhat murky,” says Charlotte Garden, an associate professor at the Seattle University School of Law in The Atlantic Magazine.

“The National Labor Relations Act protects workers’ rights to engage in concerted activity for mutual aid or protection, and the scope of what falls under that umbrella is quite broad. So it is likely that some forms of worker protest about the likely effects of Trump Administration policies on immigrant workers would be protected. But that protection would not necessarily include every tactic that workers might use.”

 

Are your hands completely tied? No.

Employers still have the right to enforce their existing attendance and notification policies. If someone fails to appear for work and does not to comply with the attendance policy, employers may take appropriate disciplinary action. Just be sure to avoid any possible action that may be construed as disparate treatment against one or more employees based on their legally protected status.

Employers should carefully review their attendance policy and determine if it achieves its intended purposes. Also, does the management team currently enforce the attendance policy as written? If not, it may be time to update and correct the practice and make sure all employees are aware of the policy. 

Please contact the AIM Employer Hotline at 800-470-6277 if you have questions.

 

Topics: Employment Law, Massachusetts employers, Donald Trump

Marijuana Question Passes; Now What for Employers?

Posted by Tom Jones on Nov 9, 2016 7:24:50 AM

Massachusetts has a new law permitting the possession and recreational use of marijuana. Voters approved Question 4 on legalization yesterday by a margin of 53.6 percent to 46.4 percent.

Marijuana.jpgAnd unlike the earned sick time law a couple of years ago, this one comes with a short lead-in period - the law takes effect on December 15.

What does the 12-page statute mean for employers?

The law focuses almost exclusively on the regulation and taxation of the sale of recreational marijuana. The measure will actually have little to no direct impact on most employers. There is only a short reference to employment in section 2, which discusses limitations of the law:

(e) This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter (i.e. the use of recreational marijuana) in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.    

Companies that addressed their drug-testing and drug-use policies in response to the 2012 medical marijuana law can prepare for the 2016 law with little more than a quick review. For companies that did not establish policies four years ago, now is the time to do so.

Review your drug/alcohol-free workplace policies to ensure that they cover all forms of drug use, including marijuana. You should also review your drug- and alcohol-testing polices to ensure they cover the topics you want.

You may want to revise your policy to ensure that it covers all aspects of your workplace, including vehicles used for business purposes, off-site duties at customer sites, work-related events, seminars and company owned parking lots and garages.

Employers should keep an eye out for potential court cases related to the new law. Such cases could materially affect the manner in which employers implement the law in the future.

There has been only one legal case so far in Massachusetts involving an employee and medical marijuana. In that case, the employee was terminated, sued claiming discrimination, and the court ruled in the employer’s favor on all six counts, except privacy.

Call AIM with any questions about the new marijuana law or about reviewing and updating your drug-use related polices. Contact Beth Yohai and byohai@aimnet.org or call her at 617-262-1180 x335. 

Topics: Elections, Workplace Safety, Marijuana

Transgender Law Will Have Modest Effect on Business

Posted by Tom Jones on Jul 11, 2016 3:38:03 PM

The transgender-rights bill signed last Friday by Governor Charlie Baker may be a landmark piece of social legislation, but it is expected to have a modest effect on Massachusetts employers who have operated since 2012 under a law barring discrimination based upon gender identity.

statehousedome.jpgMassachusetts joins a growing list of states across the country in adopting some form of legal protections for transgender people. More than 100 advocates joined Attorney General Maura Healey, Boston Mayor J. Walsh, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo on the State House steps this morning to mark passage of the legislation.

The issue for many employers was addressed four years ago with the adoption of the gender identity amendment to the Massachusetts anti-discrimination law. The law states that if an employee faces discrimination due to gender identity, or is not accommodated in transition, the employee may have a legal claim against the employer.

The principal focus of new law is access for transgender people to places of public accommodation -meaning places that offer products or services to members of the public. Massachusetts courts have generally defined “public accommodation” broadly so businesses that invite the public in will be covered under the law.

Examples of public accommodation include stores, restaurants, malls and theaters. A company that invites the public for tours or free samples may also be covered. So if transgender sales representative were to visit a facility and was turned away due to gender identity or denied access to use the restroom, the action could violate the law.

Employers need to review current policies and practices to ensure compliance. That may involve informing and training supervisors and other managers about the existence of the law, its impact in the workplace and where they can go with questions.

Parts of the law take effect immediately, other sections take effect this autumn.

As of September 1, the Massachusetts Commission Against Discrimination and the Attorney General’s office will adopt regulations in support of the implementation of the law, including when and how gender identity, may be shown.

Topics: Employment Law, Discrimination

New Overtime Rules Will Challenge Employers

Posted by Tom Jones on May 18, 2016 9:22:09 AM

The U.S. Department of Labor will issue a final rule today that will soon make more than four million workers eligible for overtime. The measure has profound implications for employers.

Fourpeople.jpgThe new rule doubles the salary threshold—from $23,660 to $47,476 per year—at which exempt or managerial workers become eligible for overtime. Non-exempt (hourly) workers are generally guaranteed overtime pay regardless of their earnings level. The rule will take effect on December 1.

The new salary baseline is slightly lower than the initially proposed white-collar exemption threshold of $50,440.

The threshold level will be automatically updated every three years. According to information released by the White House , the updates to the new minimum exemption will be set at the 40th percentile of full-time salaried workers in the lowest income region of the country.  Based on projections of wage growth, the threshold is expected to rise to more than $51,000 with the first update on January 1, 2020.

Employees earning more than the salary cap will still have to pass the “duties test” - showing that they primarily perform executive, administrative or professional tasks - to be classified as exempt from overtime.

The exemption for highly compensated workers will change from $100,000 annually to $134,004. A highly compensated employee must perform office or non-manual work and be paid total annual compensation of $134,004 or more (which must include at least $913 per week paid on a salary or fee basis) and customarily perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.

There are no changes to the outside sales provision or the computer professional exemption. To meet the computer professional threshold, the employer must show that the employee is compensated either on a salary or fee basis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour and the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties outlined in the regulations.  

Analysts believe the new overtime rules may prompt companies with exempt employees earning less than the proposed threshold of $47,476 per year ($913 per week) to reclassify those people as hourly workers. That change not only presents potential morale issues for employees who may consider the reclassification as a demotion, but also raises a host of issues for employers:

  • Payroll practices education (punch a clock, overtime rules)
  • Individual time management and work stopping at a set  time
  • Educating management on their staff and legal aspects of exempt versus non-exempt status
  • Rewriting job descriptions / salary structures
  • Career path changes
  • Effective workload levels – hiring incremental temps, part-time, full-time
  • Curfew on after-hour emails by non-exempt staff
  • Any benefits/bonus eligibility impact
  • Calculating travel time between locations or when required to report to an alternative location by a certain time
  • Calculating time for required travel on non-work days

Employers can start the process of adjusting to the new rule by asking some of the following questions:

  • Do you have any highly compensated employees under proposed threshold of $134,004?
  • Do your exempt employees affected by this proposal currently work more than 40 hours per week?
  • Do your exempt employees affected by this proposal work remotely all or part of the time? If so, you’ll need to effectively track hours to ensure all hours are accounted for and paid.
  • Have you tracked exempt employee workload within the 40 hour work week? If a conversion to an hourly employee is required, do you have metrics to substantiate a 40 hour workweek?
  • Have you addressed any budget or impact on pricing as it relates to any increased labor costs?
  • Have you initiated planning for automatic increases to the exempt salary threshold beyond 2016?
  • Have you considered the increase in number of hourly versus exempt employees and any union organizing concerns?

Register for the AIM Overtime Seminar

Topics: Employment Law, Human Resources, Fair Labor Standards Act

AIM Asks Feds to Investigate Scam Calls to Employer

Posted by Tom Jones on Jan 25, 2016 11:56:15 AM

Associated Industries of Massachusetts has asked federal officials to investigate an apparent scam in which a caller claiming to be from the U.S. Department of Labor calls an employer and demands personal information about employees as part of a bogus 401(k) plan audit.

An employer reported to AIM last week that she received a call from someone claiming to be a subcontractor for the Labor Department authorized to perform 401(k) audits. The caller threatened the employer with significant fines (up to $800,000) for failing to cooperate. The caller was seeking a list of all employees covered under the company’s 401k plan, including names and Social Security numbers.

The employer suspected the call was fraudulent and hung up. The employer then searched the phone number and found it was a frequently used scam number based in Nevada. The number was 702-258-9476. A review on the Web found a number of blog discussions about the fraudulent use of the number to sell various unwanted products.

AIM has forwarded the information to the Department of Labor to confirm that the phone call did not come from a DOL employee or contractor. The DOL representative forwarded the information to the Employee Benefits Security Administration (EBSA) for further investigation.

If you receive a similar phone call, please notify AIM at 800-470-6277 or via email (Tom Jones tjones@aimnet.org or Terry Cook tcook@aimnet.org) so that we may forward it to the DOL for its investigation.   

Topics: Retirement, Human Resources

Smart Phones, Remote Work Raise Pay Issues

Posted by Tom Jones on Jun 3, 2015 10:47:21 AM

Smart phones, tablets and wi-fi are blurring the lines between work and non-work time, especially for non-exempt employees.  The question facing employers is whether or not to pay employees for time outside of the normal work day for periods spent on their smart phones, especially if it triggers overtime.

SmartPhoneTabletThere is currently no national standard.  While some federal courts have weighed in, the U.S. Supreme Court has not.

The issue has caught the attention of the U.S. Department of Labor (DOL), which has announced plans to collect information on how the use of smartphones impacts hours worked under the Fair Labor Standards Act (FLSA). The DOL announced that it will seek input by publishing a request for information in August.

DOL states that there is no formal rulemaking proposed at this stage, but the gathering of information such as this is often the first step toward drafting a rule.

Technology has changed how, where and when work is done.

The FLSA generally mandates that employers pay non-exempt workers for all hours worked, and overtime for all hours worked in excess of 40 hours in a work week. Time spent working outside the office on mobile devices and computers by non-exempt employees complicates working-time determinations made by employers and could ultimately affect overtime determinations.

While some employers already have policies in place regarding off-hours use of electronic devices by overtime-eligible employees, DOL’s decision to open up this door suggests that any one particular policy may be subject to additional scrutiny in the future.

Now is the time to think about your current policy (if you have one) and your current practices regarding electronic devices:

  • Adopt controls to prevent non-exempt employees from accessing your IT network remotely when they are not working; or monitor the activity of those employees who do access the network.
  • Adopt a clear policy about unauthorized work and overtime. Be prepared to enforce it through your disciplinary policy
  • Remind employees of the relevant policies by updating and reissuing them. Require employees acknowledge receipt of the policies. You might also consider providing employees with training on the topic.
  • Educate managers about the issue of non-exempt employees working remotely. Be sure the managers know your company policy with regard to including information on timesheets. They should also be alert to things such as employees responding to work sourced email(s) over the weekend or turning in assignments first thing Monday morning.

If this issue is already a problem, now is the time to address them:

  • Limit or deny the email or remote access privileges of non-exempt employees who violate policies.
  • Suspend telecommuting privileges for those not in compliance with your policy.
  • Revoke any employer-owned devices if they are being used to perform unauthorized work.

If you are concerned enough about this to comment to the DOL during its fact-finding phase, remember that the opportunity is likely to happen this August.

If you have any questions about this or any other HR related matter, please contact the AIM Hotline at 1-800-470-6277.

Topics: Employment Law, Technology, Human Resources

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