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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

Employers Renew Commitment to Pay Equity

Posted by Joanne Hilferty on Oct 20, 2017 8:30:00 AM

Editor's Note - Joanne Hilferty is President and Chief Executive Officer of Morgan Memorial Goodwill Industries in Boston and a member of the AIM Board of Directors.

Massachusetts employers say they are committed to accelerating the modest progress they have made to close the gender pay gap.

Fourpeople.jpgScores of business leaders shared challenges and success stories recently at the third annual Boston Women’s Workforce Council (BWWC) Best Practices Conference at the Colonnade Hotel in Boston. Associated Industries of Massachusetts is a signatory to the Boston 100 Percent Talent Compact developed by the Council, Boston University and the City of Boston to ensure that men and women enjoy equal compensation opportunities in the work force.

Several prominent members of AIM have also signed the document, including Blue Cross Blue Shield of Massachusetts, Boston Children’s Hospital, Eastern Bank, Eversource, Harvard Pilgrim, MassMutual, MORE Advertising, National Grid, Putnam Investments, Staples and State Street Corporation. I am proud to say that the organization I lead, Morgan Memorial Goodwill Industries, is also a signatory.

Companies that sign the compact commit to reviewing their compensation practices to ensure fairness. These companies provide compensation data anonymously to researchers at Boston University who use it to develop a broad assessment of wage equality in Massachusetts. 

“AIM signed the Compact because Massachusetts employers operate in a competitive, talent-driven economy in which companies that reward skilled workers equally will come out on top,” said Rick Lord, President and Chief Executive Officer of AIM.

“Wage equity will ultimately be driven by the marketplace, which is desperately short of the employees needed to drive economic growth in the next decade.”

The 2017 Best Practices Conference drew more than 220 participants.

Business leaders noted that companies looking at signing the compact have expressed concern about the need to guarantee the confidentiality of any compensation data they provide to the project. Council executives say they can guarantee confidentiality but need to better communicate that point to employers.

The conference also provided an opportunity for the BWWC’s Co-Chairs, Cathy Minehan and Evelyn Murphy, to share the highlights from the 2017 data analysis, the full results of which will be published in the organization’s 2017 report, out later this year.  The key takeaway was that there has been some progress – albeit limited – in addressing the wage gap.

Governor Charlie Baker last year signed a compromise pay-equity law that is intended to promote salary transparency while recognizing legitimate market forces such as performance and the competitive landscape for certain skills that cause pay differences among employees.  AIM supported the compromise.

Topics: Employment Law, Massachusetts employers, wage equity

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 Proposals Not Reasonable or Manageable

Posted by John Regan on Jun 13, 2017 1:00:00 PM

Editor’s Note: The following testimony opposing paid leave was delivered to the State House by AIM today. The testimony was provided to the Joint Committee on Labor and Workforce Development regarding HB 2172 and SB 1048.

My name is John R. Regan, Executive Vice President of Government Affairs for Associated Industries of Massachusetts (AIM.); the state’s largest nonprofit, nonpartisan association of Massachusetts’ employers.

StateHouse-resized-600.pngWith thousands of members employing nearly one out of every five workers in Massachusetts, AIM’s mission is to promote the well-being of its members and the prosperity of the Commonwealth of Massachusetts by improving the economic climate, proactively advocating fair and equitable public policy, and providing relevant, reliable information and excellent services.

Thank you for the opportunity to present our testimony today.

We respectfully ask that HB 2172, SB 1048, and any similar bills receive adverse reports from this Committee.

We agree with the proponents of these bills that Massachusetts’ citizens need to balance the needs of work and family. In fact, according to the 2016 AIM Benefit Survey, 87% of responding companies offer short-term disability to their employees with benefits ranging from 51 to 70% salary replacement; 79% offer long-term disability insurance and 59% have a leave of absence policy, all in addition to the leave benefits under FMLA.

However, we do not agree, and do not believe, that the legislation before you is a reasonable, manageable, or affordable approach to address those needs, either from an employee or employer perspective.

Last session, we asked a series of questions that we would like to ask this Committee again.

We strongly believe that the Committee should have answers to each of these questions before any bill can be reasonably released from your consideration. (For this portion of our testimony, we will be using section references to the language of Senate 1048. Similar language and concepts are found in the House bill as well.)

  • Section 2, of the proposed new Chapter 175M, creates a new office within the Executive Office of Labor will be created to administer the new leave program for the Commonwealth; does the Committee know the costs associated with this new office?1
  • Sections 3 & 4 creates the benefit durations and levels of wage replacement for the leave program; does the Committee know what the estimated take-up rate is for individuals taking both the maternity leave and disability leave? For cost estimating purposes, take-up rates per program are critical to know.
  • Further, what is the Committee’s estimate of the total program costs incurred by employers and the Commonwealth for administering this program and providing these new benefits?2
  • In Section 8, the director of the fund is charged with “assessing” the tax to fund this new program. Is this Committee aware of any precedent for the creation of this type program as well as the power to set and raise revenue by a non-elected individual? Are we sure that this is constitutional?
  • The director will become responsible for numerous operational duties in managing the funds related to this bill. Is there a cost estimate for this function?
  • In addition, has anyone determined what the tax assessment per employee might be for this program and, if so, could we see that analysis?3
  • Lastly, the bill requires that claims for family and medical leave benefits shall be filed with the department and handled under the procedures prescribed in sections 1, 10, 11, 12, 14, 15, and 16 of chapter 30A. Is there an estimate of the number of claims to be adjudicated and the costs for that process?4

The terms of this legislation are far-reaching. Although the initial implementation in January of 2019 would require 50% salary replacement levels, that level is increased to 90% by January of 2021 and the average weekly wage is then tied to the Consumer Price Index for the Boston-Cambridge-Quincy consolidated metropolitan statistical area. Not only is this an extraordinarily high rate of compensation, but it also derives the wage rate from on the area of the Commonwealth with the most expensive cost of living. This will not accurately reflect the economic complexity of different areas in Massachusetts, placing an undue burden on employers and employees living in less costly areas.

Of late, many have wondered why with a recovered economy and lower unemployment rates Massachusetts own-source revenue continues to fall below even relatively conservative benchmark levels. One reason cited by our members is lack of wage growth.

According to the Pew Charitable Trust, personal income growth in Massachusetts has only grown by 2.0% since Q4 of 2007.5 Employers in the Commonwealth are faced with considerable non-wage job costs for health care, unemployment insurance, workers compensation insurance, and other Massachusetts-only high costs, like electricity rates. Combine these with higher than average base wage costs, and you restrict employers’ ability to raise wages in a manner similar to other post-recessionary recovery periods.

Inevitably and necessarily, this lack of wage growth affects tax revenue growth for Massachusetts.

A new, and expensive paid family and medical leave program, as envisioned by these bills, will contribute to a diminished pool from which to fund additional jobs and additional wage growth.

Register for the Paid Leave Webinar

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

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

'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

Judge Puts Hold on New Overtime Regulations

Posted by Russ Sullivan on Nov 23, 2016 10:17:01 AM

Yesterday, a federal judge in Texas imposed an injunction effectively blocking changes to federal overtime laws that were to take effect on December 1.  The decision affects employers in all states, including Massachusetts.  In deciding the case, U.S. District Judge Amos Mazzant of the Eastern District of Texas ruled that the Department of Labor regulations exceeded its authority.  As a result, once again employers who scrambled to meet the new regulatory requirements find themselves in the difficult position of either undoing the changes they have made to comply or leaving those changes in place, as well as the associated costs.

The Fair Labor Standards Act (FLSA) establishes overtime rules and the standards by which employees may be exempted from them.  Exemption requires that employees perform certain duties and be paid at a certain threshold level.  Although the FLSA does not specify that employees must be paid at a certain threshold, regulations issued by the Department of Labor in 1940 and updated numerous times since then have set a minimum salary threshold as one of the requirements for exemption from overtime.  The salary threshold was most recently updated in 2004 to $455.00 per week, or $23,660 per year.

The Department of Labor’s new regulations, issued in May and scheduled to take effect on December 1, would more than double the threshold to $913.00 per week, or $47,476.00.  In his ruling Judge Mazzant stated the increase of this magnitude would “supplant” the duties test, adding that responsibility belonging to Congress, not the DOL.

The eleventh hour ruling means that many employers who have already implemented changes to employee’s pay and timekeeping procedures now have to decide if they want to roll back those change or just forge ahead.  Unfortunately, many employers have already communicated these pay and procedural changes.  For these employees, it will be difficult to take advantage of the injunction and delay any changes until a final ruling is made.

Unknown at this time is whether the DOL will appeal the ruling.  Ultimately, the court process may drag on while the new Congress takes action to undo the regulations.  Employers may want to communicate to employees the current uncertainty and that they will be monitoring developments.  In the meantime, employers who have not implemented or communicated changes should sit and wait.  Those who have implemented or communicated changes should assess the business and employee relations impact of undoing these changes and determine whether they will proceed as planned or return to prior practices.+++

Topics: Employment Law, Overtime

A Statesmanlike Approach to Non-Competes

Posted by Rick Lord on Jul 25, 2016 7:54:02 AM

The 19th-century British Prime Minister Benjamin Disraeli defined a statesman as “essentially a practical character” who works “to ascertain the needful, and the beneficial, and the most feasible manner in which affairs are to be carried on. 

DeLeo2016.jpgMassachusetts House Speaker Robert DeLeo displayed admirable statesmanship and determination in forging a consensus wage-equity bill under which workers will be fairly compensated regardless of gender while employers retain the ability to design competitive pay plans to attract and retain skilled employees. The bill won unanimous approval Saturday and is now on Governor Charlie Baker's desk.

Now, the speaker is putting his statesman’s hat back on in an effort to pass a compromise bill governing the use of non-compete agreements in Massachusetts. His efforts deserve the full-throated support of the employer community.

You know the non-compete issue by now. AIM has fought relentlessly for several years on behalf the vast majority of Massachusetts employers who wish to preserve the use of non-compete agreements to protect intellectual property. Efforts to ban the use of non-competes have been driven by a small group of well-heeled venture capitalists who cannot seem to master the idea that if you don’t like non-competes, just don’t use them.

Speaker DeLeo, as he did with wage equity, reached out to AIM and other business organizations to understand the concerns that employers had with a possible ban on non-competes. He wanted to limit the use of non-competes with low-income workers, teen-agers, interns and other categories of workers without harming companies seeking to prevent the loss of trade secrets worth millions of dollars.

The result was a compromise bill endorsed by the employer community 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. The bill passed 149-0.

But the state Senate ignored the speaker’s carefully crafted compromise and passed its own bill with Draconian restrictions that would effectively end of the use of the documents in the Bay State. The Senate measure would limit non-compete agreements to three months and require employers to pay the full salary of the former employee during the restricted period. The bill would exempt anyone earning $130,000 or less from non-competes.

The issue now rests with a conference committee that will attempt to hammer out the differences between the two versions.

But the compromise and statesmanship on non-competes has already taken place. We urge the Senate to recognize the balanced compromise woven by Speaker DeLeo and to adopt the House version of the non-compete bill.

And we're not alone. Baker on Saturday announced that he supports the House bill "because he believes it better balances workers' abilities to seek new employment while ensuring cutting edge businesses can protect essential intellectual property."

AIM urges all its members to contact the conference committee and urge them to adopt the House version.

 Contact the Conference Commiittee

Topics: Employment Law, Non-Compete Agreements, Intellectual Property

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