News & Analysis

Wait, I can't do that? Top 5 obscure legal protections for employees

Technically, Massachusetts is an "at-will" state, which means employers are free to terminate employees for any reason or no reason, with or without cause or advance notice. But there's a critical exception to the employment-at-will rule: An employee may not be terminated for any reason that's forbidden by law.

He who hesitates is not always lost

Unpaid commissions continue to be a fertile source of litigation. The Massachusetts Wage Act includes in its definition of "wages" unpaid commissions under certain conditions. Whether those conditions are met can be a high-stakes determination now that the Act requires triple damages for successful claims. A recent case reveals a familiar narrative of unpaid commissions, a promise to pay, and a patient worker, up to a point.

A treatment plan for negative online employee reviews

The Wall Street Journal recently reported on its discovery that, after analyzing millions of online reviews of various companies by their current and former employees, it appeared that more than 400 employers might be gaming the system. Each of the companies experienced unusually large single-month increases in the number of reviews posted by their employees to the jobs website Glassdoor. The surges tended to be disproportionately positive not only for the months in which they occurred but also by comparison to the surrounding months. The clear implication was that someone in a position of authority at the companies had spearheaded a campaign to get employees to post positive reviews to the site in an effort to counteract the overwhelmingly negative ones already posted.

OSHA reverses course on electronic reporting requirements

In what has become a familiar refrain for anyone paying attention, the Trump administration has once again pulled back employment-related regulations that had been established or expanded during the Obama administration. This time, the regulations at issue required establishments that are subject to the Occupational Safety and Health Administration's (OSHA) record-keeping requirements to submit information about work-related injuries and illnesses to OSHA electronically. To understand the significance of the change, a quick review of the nature and history of the agency's reporting requirements may be helpful.

Employer-provided housing counts as employees' wages

Massachusetts employers are well aware of the dangers of running afoul of Massachusetts' Wage Act, which carries a mandatory triple damages provision. But even that employee-friendly statute has its limits, as a recent case demonstrates.

Workplace Trends

Report notes big rise in diversity of Fortune 500 boards. A multiyear study of Fortune 500 companies has found big gains in diversity on company boards. The study, titled "Missing Pieces Report: The 2018 Board Diversity Census of Women and Minorities on Fortune 500 Boards," from the Alliance for Board Diversity, in collaboration with Deloitte, says that the number of Fortune 500 companies with better than 40% diversity has more than doubled from 69 to 145 since 2012. Representation of women and minorities on Fortune 500 boards reached an all-time high at 34%, compared to 30.8% in 2016. Total minority representation increased to 16.1% from 12.8% in 2010, the first year Fortune 500 data was captured. The report's findings point to the increase being driven by Fortune 100 companies, which have 25% women and 38.6% women and minorities. Fortune 500 companies lag behind, with 22.5% women and 34% women and minorities.

Agency Action

NLRB chair responds to lawmakers on joint-employer rule. National Labor Relations Board (NLRB) Chair John F. Ring in January responded to a letter from members of Congress urging the Board to withdraw its notice of proposed rulemaking aimed at setting a standard for what constitutes a joint-employer relationship. Representative Bobby Scott (D-Virginia), chair of the House Committee on Education and Labor, and Representative Rosa DeLauro (D-Connecticut), chair of one of the committee's subcommittees, had urged the NLRB to abide by the joint-employer standard set out in the Browning-Ferris decision, a more employee-friendly standard than the one in the proposed rule. But Ring countered that the Browning-Ferris decision "leaves much unresolved." He also cited the "lack of clarity" as a reason the NLRB initiated rulemaking to set a joint-employment standard. He noted in his January 17 letter to Scott and DeLauro the "significant interest" in a joint-employment standard as well as a "wide range of views," as evidenced by the more than 26,000 individual

Independent contractor or employee? A not-so-meaningless distinction

It's no secret that the misclassification of employees as independent contractors is a hot topic that's being closely watched by the U.S. Department of Labor (DOL). As a result, courts have found themselves increasingly addressing the classification issue. Although it isn't binding on Mississippi employers, a recent federal case out of Texas offers persuasive guidance and a reminder of the factors that will be analyzed to determine whether a worker is properly classified as an independent contractor.

A treatment plan for negative online employee reviews

The Wall Street Journal recently reported on its discovery that, after analyzing millions of online reviews of various companies by their current and former employees, it appeared that more than 400 employers might be gaming the system. Each of the companies experienced unusually large single-month increases in the number of reviews posted by their employees to the jobs website Glassdoor. The surges tended to be disproportionately positive not only for the months in which they occurred but also by comparison to the surrounding months. The clear implication was that someone in a position of authority at the companies had spearheaded a campaign to get employees to post positive reviews to the site in an effort to counteract the overwhelmingly negative ones already posted.

There's nothing regular about calculating an employee's 'regular rate of pay'

In October, the Trump administration unveiled its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. The agenda emphasizes regulatory restraint and underscores the administration's commitment to a more business-friendly regulatory framework, noting that "in general, the [U.S. Department of Labor (DOL)] will work to assist employees and employers to meet their needs in a helpful manner, with a minimum of rulemaking." In line with that commitment is a Notice of Proposed Rulemaking (NPRM) indicating a forthcoming change to how employers should determine employees' "regular rate of pay" in order to calculate overtime.