No matter the season, regulation of the workplace continues. We can help--contact us for our hot off the press Synopsis of Massachusetts and Federal Workplace Law. It is a new, streamlined resource to use as a handy reference. There are a few bright spots for employers, among the regulatory clouds:

DC Circuit court strikes down NLRB poster rule
The court found the rule mandating posters of an employee's right to organize violates an employer's First Amendment right not to be compelled to endorse a view with which s/he disagrees. The court stated that the NLRB did not have the authority to make the poster rule. This comes on the heels of the U.S. Court of Appeals for the D.C. circuit holding that the January 4, 2012, recess appointments of three members of the NLRB were invalid. This court is earning its reputation: where regulation goes to die. The NLRB intends to file a Petition for Certiorari with the U.S. Supreme Court for review of that decision.

2013 Massachusetts Employment Law Updates:

  • Fair share employer contribution for health insurance- The new rules raise the fair share contribution threshold, the point at which employers become subject to fair share assessments, from 11 to 21 full-time employees. In addition, the new measurement no longer counts employees who have health care coverage through a spouse, government program, or elsewhere. The new rule goes into effect July 1, 2013.
  • The 2012 Economic Development Bill takes some pressure off employers in 2013 that are found out of compliance with the fair share contribution requirements. The Commonwealth's Department of Unemployment Assistance (DUA) must allow an employer sixty days, rather than ten, to appeal a finding of noncompliance. The DUA cannot remove funds from an employer's bank account while an appeal is pending.
  • Tax incentive to employers for creating wellness programs- a provision that will provide employers an annual tax credit of up to $10,000.00 for instituting wellness programs for their employees. These tax incentives took effect on January 1, 2013. The Commonwealth's Department of Public Health is expected to issue regulations with details on how employers can insure that their wellness program qualifies for the tax credit.
  • Temporary Worker's Right to Know- Effective January 31, 2013, staffing agencies must provide to each employee for each new assignment a written job order containing particular information.
  • Background Checks for School Employees- On January 10, 2013, Governor Patrick signed a law that authorizes the Department of Early Education and Care and school districts to conduct finger print-supported national criminal history background checks on all teachers, school employees, and early education providers in Massachusetts.

2013 Federal Employment Law Updates:
  • Fair Credit Reporting Act (FCRA) Compliance - Effective January 1, 2013, the Consumer Financial Protection Bureau (CFPB) assumes responsibility for enforcing the FCRA. Employers that use and request consumer background checks from consumer reporting agencies are subject to FCRA regulations. Under those regulations, before an employer may seek to procure a consumer credit report, criminal background, or background check from a credit agency, applicants or employees subject to screen must be provided certain information, including information about the scope of the check being performed. Please remember that background information may not be obtained without the employer obtaining written consent from the employee or applicant. The CFPB has issued new regulations modifying the forms employers must use to notify employees and applicants of their rights. Employers were required to begin using the new forms on or before January 1, 2013.
  • FMLA- Administrator's Interpretation Number 2013-1- On January 14, 2013, the Department of Labor issued additional guidance regarding the definition of "son or daughter" for employees seeking leave under the Family and Medical Leave Act in order to care for adult children aged 18 and older. In order to take leave under the FMLA to care for a child under the age of 18, an employee must only show a need to care for the child due to a serious health condition; but if an employee needs to care for an adult child age 18 or older, the child must have a mental or physical disability and be incapable of self-care due to that disability.
  • Immigration- New I-9 form- On March 8, 2013, the U.S. Citizenship and Immigration Services released a newly revised employment eligibility verification form, form I-9. Employers are required to use the form I-9 to verify the identity and employment authorization for their employees. Employers could continue to use older versions of the form until May 7, 2013.
  • Employee Misclassification- Voluntary Classification Settlement Program- On February 17, 2013, the Internal Revenue Service announced an expansion of the agency's Voluntary Classification Settlement Program (VCSP). The VCSP provides an ,opportunity for employers to reclassify their workers as employees for employment tax purposes for future tax periods with partial relief from federal employment taxes. To be eligible for the VCSP, an employer must currently be treating the workers in question as non-employees; consistently have treated the workers in the past as non-employees; and not currently be under audit on payroll tax issues by the IRS. In addition, the employer cannot currently be under audit by the Department of Labor or a state agency concerning the classification of these workers interested. Employers can apply for the program at least sixty days before they want to begin treating the workers as employees. Employers accepted into the program will generally pay an amount equaling approximately 1% of the wages paid to the reclassified workers for the past year. No interest or penalties will be due and the employer will not be audited on payroll taxes related to these workers for prior years.

Affordable Care Act updates:
  • FAQs about part XI- See regarding the implementation of the Act, including compliance with the new notice requirements; compliance of health reimbursement arrangements; disclosure of information related to firearms; self-insured employer prescription drug coverage supplementing Medicare part D; fixed indemnity insurance; and payment of Patient-Centered Outcomes Research Institute fees.
  • Whistle Blower Protection (interim) - On February 22, 2013, the Occupational Safety and Health Administration published an interim final rule regarding Whistle Blower complaints filed under the Patient Protection and Affordability Care Act. This provision of the Federal Health Reform law offers protection to employees against retaliation by an employer for reporting alleged violations of the act or for receiving a tax credit or cost-sharing reduction as a result of participating in a health insurance exchange or market place.
  • Final Rule for Multiemployer Health Care Arrangements- On February 28, 2013, the U.S. Department of Labor Employee Benefits Security Administration announced final rules under the Affordable Care Act to protect workers and employers whose health benefits are provided through Multi Employer Welfare Arraignments (MEWAs). The final rules increased the department's enforcement authority to protect participants in MEWAs and call for such plans to adhere to enhanced filing requirements According the DOL, employers are often told that MEWAs are more affordable than traditional forms of coverage, but unscrupulous promoters, marketers, and operators of certain MEWAs have taken advantage of gaps in the law to avoid state insurance regulations, putting enrollees at risk. The Affordable Care Act includes provisions implemented by the final rules that are designed to remedy these gaps.
  • Proposed Rule on Waiting Periods- The Internal Revenue Service, the Department of Labor, and the Department of Health and Human Services have issued proposed rules on the Affordable Care Act requirements that prohibit group health plans and health insurance insurers offering group health insurance coverage from imposing any waiting period that exceeds ninety days.
  • Health Insurance Premium Tax Credit- On February 1, 2013, the Internal Revenue Service published a final rule providing guidance on when an employer-sponsored plan is considered "affordable" for an individual related to the employee for purposes of eligibility for a premium tax credit.

What is on the Horizon?

Legislative Activity we are tracking:
  • Efforts to mandate paid sick leave;
  • Bills that would curtail or negate entirely the protections of non-compete agreements;
  • Attempts to amend the current definition of "independent contractor" that has been problematic for employers;
  • Significant increases to the Commonwealth's minimum wage;
  • Clarifying amendments to the provision of the Commonwealth's Personnel Records law;
  • Legislation providing protection to victims of domestic violence and their immediate family members by guaranteeing up to 15 days of leave for their jobs in any 12-month period.

As always, you can contact us if you have any questions. We can help. Call 508-548-4888 or 857-284-7291 or email us at