Massachusetts News & Analysis

  • First PFML deadlines are approaching--are you ready?

    —For the past year, we've been helping Massachusetts employers prepare for the upcoming "Grand Bargain" legislation, which, among other things, mandates paid family and medical leave (PFML) for employees. Although employees will not be entitled to receive PFML benefits until January 1, 2021, covered employers must start making wage deductions on July 1, 2019, to fund contributions to the Massachusetts Department of Family and Medical Leave (DFML), which will be due with your October 2019 quarterly tax payments. You must also meet certain notice requirements under the PFML law and, if you haven't already, consider whether you want to opt out and institute a private plan. The DFML recently announced several important changes to upcoming deadlines and provided additional information about the PFML law, which goes into effect July 1.

    Deadline for employee notice extended to June 30

    In addition to collecting and making contributions to fund PFML, employers must provide notice of the law to employees by June 30, 2019. Two separate notice forms are required:

    1. The PFML mandatory workplace poster, which provides general notice of the benefits available under the law; and
    2. A written notice distributed to each employee.

    The mandatory workplace poster must be available in English and each language that is primarily spoken by at least five people in your workforce if the DFML has published a translation of the notice in that language.

    The written notice must include information on PFML benefits, contribution rates, and how to apply for benefits. It must also include your company's name and mailing address, your federal employer identification number, and the DFML's mailing address, e-mail address, and telephone number. If more than 50 percent of your workers are independent contractors, you must also provide notice of the law to them because they will generally be entitled to PFML benefits.

    Notice to individual employees is required within 30 days of their first day of employment (or by June 30 for employees hired before June 1, 2019) and must be written in the employee's primary language. So far, the DFML has published both the poster and the notice in 13 different languages. We recommend using the model notices, which are available for download on the DFML's website at https://www.mass.gov/orgs/department-of-family-and-medical-leave.

    Questions about tax treatment of contributions remain

    You must begin making contributions to the state to cover PFML on July 1, 2019, but uncertainty about the tax treatment of those contributions remains. As a result, the DFML asked the IRS for guidance. The department recently provided an update for employers.

    Although the DFML anticipates that employees' contributions should be withheld from after-tax wages, it's awaiting the IRS guidance before making a final determination. It's unclear when that guidance might be issued. If no guidance is issued by July 1, you should check with your tax adviser for a recommendation on the PFML law's tax-related implications. Regardless of the notice extensions and the lack of definitive guidance on tax issues, contributions to PFML begin on July 1.

    State extends private plan exemption deadline

    Employers with paid leave plans that offer benefits equal to or more generous than the benefits provided under the PFML law may obtain an exemption from the DFML. If you haven't given a lot of thought to private plan options, you will have more time to do so. The deadline for filing for a private plan exemption has been extended from June 30 to September 20 for the first quarter. After that, applications will continue to be accepted on a rolling basis and, if approved, will be applicable beginning the following quarter.

    Employers that apply for an exemption that isn't approved will be responsible for making contributions for the first quarter (July 1 through September 30) by October 31. More information about applying for an exemption can be found on the DFML's website.

    Bottom line

    Given the upcoming deadlines, now is the time to determine what your contribution rates will be (if you haven't done so already), consider applying for an exemption, and make sure you are prepared to provide notice to your employees by the June 30 deadline. If you have questions about the notice requirements or any of your other obligations under the PFML law, be sure to consult with experienced employment counsel.

    Marylou Fabbo is a partner at the firm of Skoler, Abbott & Presser, P.C. She can be reached at 413-737-4753 or mfabbo@skoler-abbott.com. Kimberly A. Klimczuk is a partner at the firm of Skoler, Abbott & Presser, P.C. She can be reached at 413-737-4753 or kklimczuk@skoler-abbott.com.

  • Supreme Court will decide whether LGBT discrimination is unlawful

    The U.S. Supreme Court has agreed to decide the long-unresolved question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. The issue has been percolating in the lower courts for quite a while. As it frequently does, the Court declined to consider the question until there was a conflict between several appellate courts. Let's take a look at the history of the Court's decisions, the arguments on both sides of the issue, and what we can expect next.

  • Attendance may not be an essential job function

    Most of you know that the Americans with Disabilities Act (ADA) and Massachusetts law require you to engage in an interactive dialogue to identify potential reasonable accommodations for an employee's disability and that you have to provide a reasonable accommodation unless doing so would pose an undue hardship for your business. It has long been acknowledged under the ADA and state law and by the courts that an employer isn't required to eliminate an essential function of an employee's job as an accommodation. One question employers often ask is whether full-time work is an essential function of the job. A federal court in Massachusetts recently determined that it wasn't in one case.

  • September 30 deadline looms for newly required EEO-1 data

    Employers required to submit EEO-1 reports to the Equal Employment Opportunity Commission (EEOC) are venturing into uncharted territory as they work to collect newly required information due by September 30. While they may be accustomed to submitting traditional EEO-1 information—data on employees' race/ethnicity and gender, or what's being called Component 1 data—this year they also must compile data on compensation and hours worked, or what's being called Component 2 data.

  • Are union fee payers still paying after Janus?

    Last June, the U.S. Supreme Court ruled in Janus v. AFSCME that forcing public-sector employees to pay union dues (also known as agency fees) violates their constitutional rights. The ruling reversed a decades-old practice of requiring union-represented public-sector employees to pay an agency fee even if they chose not to join the union.

  • Workplace Trends

    Research finds lack of mentorship and coaching. New data from media agency network Mindshare U.S. found that 42% of U.S. employees said their companies either don't offer mentorship programs or don't offer enough of them. Men were more likely than women to say they either got enough or more than enough mentorship programs at work, at 57% versus 42%. The research also found that 66% of U.S. employees rank ongoing feedback or coaching on their work as an important or very important benefit in the workplace. Yet 28% of people surveyed said that they either don't get enough ongoing coaching or feedback or that their companies don't even offer it. The data showed that women were more likely than men to feel that way, at 31% versus 25%.

  • Increasing importance of workplace investigations

    The rise of sexual harassment complaints in the #MeToo era has shined a light on the importance of conducting prompt, effective investigations when confronted with harassment allegations. Delaying or avoiding investigation responsibilities can lead to significant liability for employers if the complaints are later substantiated by a court or administrative agency such as the Massachusetts Commission Against Discrimination. On the other hand, conducting proper investigations can protect you from claims of unlawful behavior while demonstrating to a judge or jury that you take the complaints seriously.

  • DOL says FMLA leave mandatory for employees and employers

    After more than 25 years, you might think questions regarding proper interpretation of the Family and Medical Leave Act (FMLA) would be settled. It's a highly regulated law, and it provides employers far more detail and clarity than they get with most other labor and employment laws.

  • Crash landing for disability discrimination and retaliation claims

    There's no question that unless it would pose an undue hardship, employers must provide reasonable accommodations for disabled employees, and sometimes those accommodations include time off. But when an employee simply makes an employer aware of a disability that may require time away from work without specifically requesting time off for it, does the employer have an obligation to provide it? Not according to the 1st Circuit.

  • Tips to ensure you are prepared for a deposition

    For an HR professional, giving a deposition is a lot like visiting the dentist. You know it's necessary, but you probably aren't looking forward to it. You may be asked questions you don't want to answer (like how often you actually floss). And finally, consistently responsible practices should reduce your stress levels about the event, make it go a lot smoother, and prevent worse problems in the future.