Post on 03-Jan-2016
September 28, 2015
Meghan B. Sullivan, Esq.Meghan.Sullivan@sullivanandhayes.com
(413) 736-4538
HRMA of Western New EnglandLegal Updates
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This Evening’s Topics
EST ACA (what to expect in 2016) FLSA overtime rules (expected in 2016) NLRB – Browning-Ferris (how does this affect employers?) Medical marijuana Changes to FMLA (??? – the only change I could find was
the final rule revising the definition of “spouse”)
Pending Massachusetts HR Issues
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Massachusetts Earned Sick Time
http://ballotpedia.org/Massachusetts_Paid_Sick_Days_Initiative,_Question_4_(2014)#Supporters A group of 77 economists signed a letter in support of Question 4. The group's statement was as follows:
“One important role of economic policy is to improve the well-being of individuals, families and our communities. Balancing work with family responsibilities, such as caring for a sick child, creates difficult challenges for many parents, and everyone is sometimes too sick to work. Yet, in Massachusetts, as in most of the country, many workers miss a day’s pay and can be fired for staying home when too sick to work or for taking time off to care for a sick child. That’s why we, as economists that live and work in Massachusetts, say yes to Ballot Question 4, which would create a law to entitle employees of firms with 11 or more employees to earn and use up to 40 hours of paid sick time per calendar year while prohibiting employers from punishing workers who exercise that right …”
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Massachusetts Earned Sick TimeSupporters
Gov. Deval Patrick
U.S. Senator Ed Markey
U.S. Senator Elizabeth Warren
A.G. Martha Coakley
Massachusetts Paid Leave Coalition
Roman Catholic Bishops of Massachusetts
Boston Children's Hospital
Partners HealthCare
Boston Medical Center
Steward Health Care
Alliance for Business Leadership
Individuals
Boston Cardinal Sean O'Malley
Worcester Bishop Robert McManus
Springfield Bishop Mitchell Rozanski
Fall River Bishop Edgar da Cunha
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TAKE A “BIG E” DAY! www.thebige.com
The Big E is here for 17 days. Pick one – you deserve it!You work hard, week in, week out. So it’s time to take a break.
Why not?•You deserve a Mardi Gras parade.•You deserve a trip to the circus.•You deserve to hear great music, eat tempting treats and feel the wind in your hair as you fly over the midway.
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Sampling of Big E Sponsors www.thebige.com
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Take the Day! Why not?
You have Earned Sick Time!
USE ALL FIVE DAYS!
You DESERVE it!
They can’t ask you about it or demand a note!
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Massachusetts Earned Sick Time
Final Regulations June 19th Effective July 1st
Safe Harbor (partial delay) “Transition Period”
January 1, 2016
Remember – elected officials refused to formally legislate a delay.
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Massachusetts Earned Sick Time
Applies to Private Sector (not employees of the legislators)
Full-time, part-time, temporary, seasonal
“Primary place of work” in MA *
Perform service for an employer for wage, remuneration or other compensation
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Massachusetts Earned Sick Time
Covered Employers – all of them
Huh?
Issue is whether the protected time off is paid or unpaid
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EST – Covered Employers
11 or more employees: paid time
10 or fewer employees: unpaid time
How much time?
Up to 40 hours in a 12-month period.
When?
In the “benefit year”.
Employer defines the 12-month benefit year period.
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EST – Amount, Accrual Rate, Caps
Up to 40 hours in a benefit year.
Statutory: 1 hour for every 30 hours worked.
***Worked. Not “paid”
Cap = 40 hours.
Stop accruing until next benefit year.
Employers are allowed to have a bank program and refill to 40 – not required.
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EST – Amount, Accrual Rate, Capscontinued …
Already providing 40 hours for the reasons under the EST law?
According to the MA Attorney General:
EST does not require employers to provide any more time! Must Provide Statutory ProtectionsBut according to the Teamsters, the MA Attorney General is wrong.
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EST – Amount, Accrual Rate, Capscontinued …
Starts: The first day of work in MA for the employer.
Use: 90th calendar day
Applies to existing employees transferring into MA.
Accrual stops when transferred out but can still use time in the next state …
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EST – Amount, Accrual Rate, Capscontinued …
Salaried Exempt – assume 40 or reg. schedule
Fee-for-service or piece work – “reasonable measure” including work plus billing
Hourly – hourly
See regs. for faculty, child care …
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EST – Other Paid Time
PTO is A-okay if it provides:
at least the same amount of time to use for the same purposes under the same conditions, and with the same job protections as the law.
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EST – Other Paid Timecontinued …
More than 40 PTO?
May limit statutory sick time use to 40.
Separate Use PoliciesFor PTO in excess of 40 hoursMust allow employees to designate earned sick time
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EST – Other Paid Timecontinued …
Lump Sum Allowed:
May lump sum 40 hours at the start of each benefit year and, if so, employers do not need to track accrual or allow rollover.
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EST – Other Paid Timecontinued …
40 Hours of Vacation? No additional paid time required if uses and legal protections are available. No need to provide more sick time as long as the time can be used for the same purposes as the law.
If utilizing this option, need to provide notice that additional time will not be provided.
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EST – Other Allowable Calculations: No Tracking Required
For employees working an average of:
37.5 – 40 hours per week, provide 8 hours per month for 5 months.
30 hours per week, provide 5 hours per month for 8 months. 24 hours per week, provide 4 hours per month for 10 months. 20 hours per week, provide 4 hours per month for 9 months. 16 hours per week, provide 3 hour per month for 10 months. 10 hours per week, provide 2 hours per month for 10 months. 5 hours per week, provide 1 hour per month for 10 months.
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EST – Other Allowable Calculations: No Tracking Required continued …
Rules Regarding Other Allowable Calculation
No tracking requiredRollover required (not to exceed 40)Compliance even if variable hour employeesEmployers may accelerate the rate or increase hours
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EST and Big E Uses
For one hour or less, must use a full hour.
After the first hour, use portions of the hour.
Not for Tardiness: Employees may not use EST as an excuse to be late for work “without an authorized purpose under [the statute].”
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EST and Big E Uses continued …
No Accepting Shifts to Use EST:
Employees may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.
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EST and Big E Usescontinued …
Replacement Workers
Employer hiring replacement or calling in coverage can require the employee to use an equal number of hours as the replacement or call-in employee, up to a full shift.
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EST Intended Uses
Care of the employee’s child (i.e., biological, adopted, foster, stepchild, legal ward or a child of a person who has assumed the responsibility of parenthood), spouse (including same sex), parent or parent of a spouse, who is suffering from a physical or mental illness, injury or medical condition that requires home care, professional medical diagnosis or care or preventative medical care.
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EST and Big E and Termination?
Fraud and Abuse Is Not Protected
Clear Patterns – Not Protected
Clear pattern of taking leave on days just before or after a weekend, vacation or holiday. An employer may discipline the employee, unless the employee provides verification of authorized use under [the statute].
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EST – Healthcare Providers and State of Emergency
Employer can require written documentation from a medical provider to substantiate the need for the use.
Employer may discipline if policies are not followed, as well as for misuse of sick leave.
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EST and Documentation
Affirmation Following Any Use is Allowed
Employees personally verify in writing that EST was used for allowable purposes (no disclosure of nature of illness or DV).
Employer may require affirmation on designated form.
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How Many Big-E Call-Outs Before I’ll Need a Note?
24-Hours Scheduled: After missing 24 consecutively scheduled hours;
Three Days Scheduled: After missing 3 consecutive scheduled days;
Last two weeks: Within 2 weeks before employee’s final scheduled day of work before termination of employment, except in the case of temporary employees;
Excessive: After 4 unforeseeable and undocumented absences within a 3-month period; or
Under Age 17: For employee aged 17 and under, occurs after 3 unforeseeable and undocumented absences within a 3-month period.
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Illegal Employer Action
Interfering with or denying the exercise of a Sick Leave Law right;Using the use of sick time as a negative factor in an employment action; andTaking adverse action against an employee who opposes practices in violation of the law. Employer may be sued for violations and be liable for lost wages, benefits, attorneys’ fees and triple damages for lost wages.
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Transition Year – Safe Harbor
Do you have another six (6) months?Policy on or before May 1, 2015Provides paid time off of at least 30 hours to full-time employees? Allows same uses as the EST laws?
http://www.mass.gov/ago/docs/workplace/earned-sick-time/est-safe-harbor.pdf
Before January 1, 2016, adjust Policy to conform to EST
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Other Topics Regarding Sickness
ACA: What is new for 2016?
Recap:
If you don’t know that the ACA is NOT the same as previous MA law, you have a lot of work to do … and this discussion does not recap what we’ve been discussing for the last five years.
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ACA: What is New for 2016?
Employee Subsidy Notices
Penalty phase is triggered when an employee receives a “premium tax credit.”
Exchanges required to provide the Employer notice of employee credit (subsidy).
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ACA: What is New for 2016? continued …
What does the Exchange need to tell an employer? Name of employee;S/he determined eligible for advance payments of the premium tax credit;Potential penalty by IRS against Employer; andEmployer’s right to appeal.
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ACA: What is New for 2016?continued …
Employer received Subsidy Notice and Appeal Rights in the mail – now what?
Each state may establish its own appeal process. CT has. MA has not.
If the state does not create an appeal process, then appeal to Federal Department of HHS.
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ACA: What is New for 2016? continued …
September 18, 2015 – contrary to the statutory language on the previous slide …
Employers cannot appeal 2015 subsidy certifications before “IRS assessment inquires”https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/Employer-Notice-FAQ-9-18-15.pdf
It is not what the law says.
It is not what the regulations said.
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ACA: What is New for 2016? continued …
9/18/15 “We take that back memo” (continued)
Healthcare.gov – 2016 notices to employers if employee received tax credit in 2016 AND IF the employee gave the Employer’s complete address. Wrong address? Maybe 2017.
Want to register your address? Nope.
Healthcare.gov will use only employer names and addresses as provided by applicants.
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ACA: What is New for 2016? continued …
2016 notifications should start 1/31/2016
On notice – 90 days to appeal ***
Mail or fax completed form
We are still awaiting IRS procedures. The regs were published in February of 2014
*** 30 days to challenge tax assessments
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ACA Appeals – What Happened to 2015?
Rather than the 90-day appeal process
Learn of tax assessment from the IRS
When will the IRS tell us about those?
After employer files the new forms
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ACA – Are You Ready to Report?
Two New Tax Forms for ALEs!
Information to employees (Form 1095-C)
Information about employees (Form 1094-C)
New IRS Forms issued September 16, 2015!
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Information to Employees 1095-C
Employer Provided Health Insurance Offer and Coverage (Form 1095-C)
Deadline: January 31 (starting in 2016)
Employer must provide
Every full-time employee in previous year
Completed Form 1095-CDifferent sections for fully insured vs. self-insured
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Information to Employees 1095-Ccontinued …
Form 1095-C requires the following for fully-insured plans:
1.In which month was the employee offered minimum essential coverage;
2.Did the offered coverage provide minimum value;
3.The employee’s share of the lowest cost premium for self-only coverage; and
4.Which, if any, affordability safe harbors applies to the employee?
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Information about Employees (Form 1094-C)
Transmittal of Employer-Provided Health Insurance Offer and Coverage Information
Returns
Deadlines to file with IRS:
February 29, 2016 if by mail
March 31st if filing electronically** Issue 250 + 1095-C’s – Electronic filing required!!
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Information about Employees (Form 1094-C) continued …
A copy of every 1095-C gets filed with the 1094-C
1.How many full-time employees during each month;
2.How many total employees during each month;
3.Certification by month as to whether you offered full-time employees and their dependents minimum essential health coverage; and
4.Whether you qualified for special rules (safe harbors/transitional relief) that impact reporting obligations under the ACA.
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IRS Forms 1094-C and 1095-C
Instructions (issued in September of 2015)
http://www.irs.gov/pub/irs-pdf/i109495c.pdf
Questions and Answershttp://www.irs.gov/Affordable-Care-Act/Employers/Questions-and-Answers-about-Information-Reporting-by-Employers-on-Form-1094-C-and-Form-1095-C
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Do We Expect More About Reporting?
Of course we do.
The IRS intends to publish regulations.
See Notice 2015-68
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Because the Forms Take So Long to Complete … and We Called Out Sick for the Big E …
We had to work more than 40 hours.
NEW FAIR LABOR STANDARDS ACT (FLSA)
What to expect in 2016?
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FLSA in 2016
March 2014 President Obama to DOL: create “new rules” regarding who is eligible for overtime pay.
Directive to a branch of the federal government: “modernize and streamline overtime regulations and make more workers eligible for overtime.”
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FLSA – Exempt from Overtime
Things you cannot make up …
BNA quote regarding “modernizing and streamlining” directive …
“From HR’s standpoint, this could create a tremendous level of chaos.”
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2016 FLSA Streamlined Chaos
Where will the modern chaos be focused?
“Simplify the white-collar exemption” and “update” it “to address the changing nature of the American workplace”
Executive, administrative and professional employee categories “have not kept up with our modern economy” and “are outdated.”
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2016 FLSA Streamlined Chaos
Duties tests are not expected to change
New salary test: $921.00 per week
$47,892 annually
Highly compensated exemption: $122,148
Automatic increases to salary basis tests
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NLRB – They Keep Going, and Going, and Going …
Browning-Ferris/Leadpoint Business Services
Pay attention if you:
sub-contract
franchisor/franchisee
don’t like defending legal actions
wonder how far we can go to force unionization on workers who don’t want it
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NLRB: Joint Employer
August of 2015 – NLRB tosses its old rule
Implements a pro-union standard
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Browning-Ferris/Leadpoint
Browning-Ferris (BFI) – recycling plant
Leadpoint Business Services (LBS)– provides people to work sorting waster from conveyor belts and to do cleaning in the Browning-Ferris facility
Written agreement – LBS is the employer
BFI supervisors – don’t even direct
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Browning-Ferris/Leadpointcontinued …
BFI had a unionBFI union said it should represent LBS employees who work in the BFI plant
New: if you possess ability to exercise control, it doesn’t matter if you actually do exercise control. The “possess ability” will make a joint employer situation.
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That Leads Us to Marijuana …
Medical Marijuana and the Massachusetts Commission Against Discrimination
Applicant disclosed medical useHired. Worked one day. Fired by HR due to positive drug testHR said – “We follow federal law, not state law.”
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Marijuana and the MCADcontinued …
Plaintiff’s theory: “As long as it is not affecting that person’s ability to perform their job, then it should be protected.”
Massachusetts’ medical marijuana law is silent on the issue of firing people who test positive.
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MA Medical Marijuana
Remember – there is no right to use it “at work”
and,
Nothing [in the regulation] shall be construed to limit the applicability of other law as it pertains to the right of employers.
105 CMR 725.650(A)
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Data from an Audience Member Report Shows Marijuana Commercialization Failing in Colorado
“The Legalization of Marijuana in Colorado the Impact, Volume 3”32% increase in marijuana-related traffic deaths in just one year from 2013 Colorado youth usage (ages 12-17) ranks 56% higher than the national average 29% increase in the number of marijuana-related emergency room visits 38% increase in the number of marijuana-related hospitalizations Seizures of illegal Colorado marijuana increased another 34%
But they don’t need a card like in MA!
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Family and Medical Leave Act
“Spouses” and “GINA”
Spouse: No DOMA.
Final Rule effective 3/27/15
New GINA instructions on FMLA forms. Essentially, tells the healthcare provider not to mention it.
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In the MA Pipeline. Don’t Patronize Me.
Get off the state house steps. Walk up the court house steps, and enforce the existing laws.
Yes, that’s right! We already have these protections.
Pay Equity.
Pregnant Workers Fairness Act.
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In the MA Pipeline
Bullying and harassment not linked to protected class status
“The economic well-being of the Commonwealth is dependent on healthy and productive employees.”
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Bullying and Harassment Not Linked to Protected Class Status
We are doing this for employers because it will increase productivity and morale, reduce turn-over and ABSENTEEISM RATES (but since they have those 5 days, they can go to the Big E …) … and then they can sue you and it won’t be covered by Workers’ Compensation
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Bullying and Harassment Not Linked to Protected Class Statuscontinued …
Many proposed definitions which elicit a strong reaction from me but the best just might be …
“Vicarious Liability” for a violation committed by
“an employee”
Nope, not a supervisor. Just “an employee.”
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Proposed Changes to EST
New bill introduced to deal with problems under the EST law.
Teamsters Letter Submitted to Elected Officials
Construction Industry section 301 legal action under appeal (“no claim or controversy”)
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Reference Materials
Meghan Sullivan’s blog article regarding Massachusetts pay equity
AIM testimony regarding pending MA bills
AIM proposed modifications to EST statute
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THANK YOU
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