Articles Discussing General Topics In Massachusetts Labor & Employment Law.

Massachusetts has issued emergency regulations allowing employers to verify an individual’s identity by teleconference to comply with the state Criminal Offender Record Information (CORI) law during the current state of emergency caused by the COVID-19 crisis.

On April 9, 2020, the Massachusetts’ Department of Criminal Justice Information Systems (DCJIS) passed an Emergency Regulation to address the social distancing limitations due to the COVID-19 pandemic. Any entity requesting criminal offender record information through DCJIS’s iCORI database (CORI) must first obtain the subject’s authorization. Previously, as part of this authorization process, the requesting party had to verify the subject’s identity in person by examining government-issued photo identification. If an in-person interaction was not possible, the CORI authorization must have been signed by the subject and certified by a notary public.

In Jinks v. Credico (USA) LLC (March 31, 2020), Judge Kenneth Salinger in the Business Litigation Session of the Massachusetts Superior Court provided guidance on two important wage and hour issues. First, the court concluded that the “right-to-control” test was the appropriate method for determining whether two companies were “joint employers” for purposes of the Massachusetts wage and hour laws.

On Thursday, April 9, 2020, Massachusetts Governor Charlie Baker’s administration announced the partial implementation of unemployment benefits in accordance with the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

The current circumstances surrounding the COVID-19 crisis have brought paid family and medical leave to the forefront of the national consciousness. While the federal government and other states have created new, immediately effective, paid family and medical leave laws, Massachusetts has remained committed to the existing timeframe for the Paid Family and Medical Leave Act (PFMLA), which will be effective January 1, 2021.

Recently, the Massachusetts Attorney General’s Fair Labor Division (“FLD”), which enforces the state’s wage and hour laws, published its answers to frequently asked questions (“FAQ”) that the FLD has been receiving from both employers and employees in the wake of COVID-19. The FAQ covers the following important issues:

On March 23, 2020, Massachusetts Governor Charlie Baker issued COVID-19 Order No. 13: “Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More Than 10 People” (the “Order”). Please click here for a copy of the Order.

On March 23, 2020, Massachusetts Governor Charlie Baker issued an Order requiring all nonessential businesses and organizations to close their physical workspaces and facilities to customers, workers and the public. This Order came days after the Massachusetts Department of Public Health reported the state’s first death from COVID-19. A copy of the Governor’s Order is here.

The Massachusetts Department of Unemployment Assistance (DUA) has issued emergency regulations (430 CMR 22.00 et seq) enabling employees who have been placed on “standby status” by their employer to be eligible for unemployment benefits. It is assumed that “standby status” includes both lay-offs and furloughs, so long as the employee has an “expected return to work date.”

Over the past few years, legislators and government agencies at both the state and federal levels have pushed reforms limiting the use of non-competes and other restrictive covenants by U.S. businesses. Some of those efforts have extended to covenants that restrict a party’s ability to solicit and/or hire employees who are not party to the agreements in question.

Restrictive covenant matters rarely make it through the appellate courts. This is true for a number of reasons, including the fact that the time-sensitive nature of restrictive covenant litigation often compels parties to achieve a resolution before their case can work its way through the court system. The dearth of appellate case law is even more pronounced for anti-raiding covenants, which appear to provoke fewer lawsuits than non-compete and customer non-solicitation covenants.

State and local governments have increasingly become targets of cybersecurity attacks. This year cybersecurity attacks on Baltimore and Lincoln County, North Carolina reportedly will cost those government entities $18.2 million and as much as $400,000, respectively to recover from the attacks. Last year, Atlanta spent more than $7 million to recover from a ransomware attack. A report by cybersecurity firm Coveware shows that governments paid almost 10 times as much money on average in ransom as their private-sector counterparts over the second quarter of 2019.

After an initial delay, payroll and wage withholdings to fund the Massachusetts paid family and medical leave program are set to begin on October 1. The Massachusetts Paid Family and Medical Leave Act (PFMLA) established a fund that will allow employees in the Commonwealth to begin taking paid leave in 2021 for their own serious health condition or to care for a family member with a serious health condition. Employers will contribute to the state created fund through a contribution of .75% of employee wages up to the social security cap, currently set at $132,900 per individual for 2019.

After announcing an agreement to delay the start of contributions under the Massachusetts Paid Family and Medical Leave Act (PFMLA), the legislature passed a bill amending the law that the Governor subsequently signed and enacted on June 13, 2019. As announced, PFMLA contributions will begin on October 1, 2019, rather than July 1, 2019.

On June 14, 2019, the Massachusetts Department of Family and Medical Leave (“DFML”) posted a new update confirming that the Massachusetts legislature and Governor Charlie Baker have enacted legislation to delay by three months (1) the date on which employers must notify their workforce of their rights and obligations under the Paid Family Medical Leave Act (“PFMLA”), and (2) the start date for employer and employee contributions to the PFML program. The workforce notification deadline is now September 30, 2019, and the contribution start date is now October 1, 2019.