Articles Discussing General Topics In Massachusetts Labor & Employment Law.

Effective January 31, 2013, temporary staffing agencies in Massachusetts must provide temporary employees with written notice of certain information before the employees can go to a new assignment for work. The new law also prohibits staffing agencies from charging temporary employees for certain items and services related to employment.

Massachusetts has one of the most employee-friendly independent contractor laws in the country. The Massachusetts law creates a heavy presumption of employee status and makes it very difficult to establish independent contractor status. Many Massachusetts employers have struggled with its application, a task made more difficult by the state’s aggressive enforcement. Recently, the Massachusetts Joint Enforcement Task Force on the Underground Economy and Employee Misclassification announced “the commissioning of a research study to show the current depth and scope of employee misclassification and the underground economy in Massachusetts.” The study is expected to be completed in 2013 and may be a harbinger of more onerous enforcement yet to come.

In a disappointing development for Massachusetts employers, efforts by the Commonwealth Attorney General’s office to come up with a new bill negotiated with employer participation clarifying a vague and vexing provision of state law mandating that employees be notified promptly of adverse entries in their personnel records appear to have stalled as the current legislative session draws to a close.

On August 6, 2012, Massachusetts Governor Deval Patrick signed the “Temporary Worker Right to Know Act.” The Act, which takes effect on November 5, 2012, places several new legal burdens on staffing agencies in Massachusetts, as well as companies that utilize their services. Specifically, the Act requires staffing agencies to provide detailed information to temporary workers regarding, among other things, their anticipated work duties and compensation. In addition, the Act limits the fees that can be charged to temporary workers for certain work-related materials and services.

Since the Massachusetts Personnel Records statute was amended in 2010 to place an affirmative duty on employers to notify employees of certain additions to a “personnel record,” Massachusetts employers have been concerned that the amendment was too vague and broad to be workable. At the urging of management-side representatives, the Massachusetts Attorney General’s Office has sought assistance from management-side and employee-side representatives to draft clarifying legislation.

Massachusetts employers will be faced with a host of new obligations affecting their ability to obtain and use criminal background information from applicants and current employees beginning May 4, 2012. The state’s 2010 criminal offender record information (“CORI”) law created a new method and database for employers to access criminal records, allowing many employers access to the database for the first time.

Effective May 4, 2012, the Massachusetts Criminal Offender Record Information (CORI) Reform Act (the Act), which was enacted in August 2010 with the controversial “ban the box” legislation, will significantly change the way employers access, use, and maintain information obtained through the Commonwealth’s CORI system. The Act will allow all employers access to a new online records system, but also imposes obligations on employers that acquire criminal history information from private sources, such as consumer reporting agencies (background report vendors). Employers should review their hiring and background check policies now to determine whether any updates are necessary.

Thirty-nine percent of data breaches in the U.S. happened to businesses while the data was in the hands of third-party vendors, according to the 2010 Annual Study of the Ponemon Institute.

Massachusetts’ new law on criminal offender record information (“CORI”) bans the use of questions about criminal history on an “initial written application” for employment. This ban became effective November 4, 2010. The Massachusetts Commission Against Discrimination (MCAD), charged with enforcement, has issued a Fact Sheet on how it intends to enforce the law. While the Fact Sheet does not have the force of a regulation or law, it provides valuable guidance for employers.

The Massachusetts Attorney General’s Office has updated its earlier position communicated to Jackson Lewis and has informed Jackson Lewis that it will “probably” issue a guidance document about the amendment to the Massachusetts Personnel Records Statute. According to an official in the Attorney General’s Office familiar with the matter, “all options are on the table,” including a “clarification [or] advisory.” The Attorney General’s Office has no timeline for issuing its explanatory document, we were told.

Despite requests by several law firms, the Massachusetts Attorney General has decided not to issue an interpretive guidance or other interpretive aid for a broadly worded amendment to the Massachusetts Personnel Records statute that places an affirmative duty on employers to notify employees when adding new information to a “personnel record” that could negatively affect the employee’s employment or lead to disciplinary action.