Massachusetts Paid Family & Medical Leave (PFML) Updates for 2023

By Alicia Ward, Peter Moser, Kathleen Berney, Catherine Reuben   November 21, 2022

Increased Maximum Weekly Benefit; Changes to Contribution Rate

Beginning in January 2023, the maximum weekly benefit that employees are eligible to receive through the PFML will be $1,129.82, an increase of $45.51 from the current maximum weekly benefit of $1,084.31. The benefit amount changes each year, effective January 1, to remain at 64% of the state average weekly wage, which will increase from $1,694.24 to $1,765.34 in 2023.

In addition, effective January 1, 2023, the total contribution rate for employers with 25 or more covered individuals will decrease from 0.68% to 0.63%; for employers with fewer than 25 covered individuals, the total contribution rate will decrease from 0.344% to 0.318%.
For additional details about updates to the contribution rates for 2023, please visit the Massachusetts Department of Family and Medical Leave (DFML) website.

Notification & Rate Sheet

On November 15, 2022, the DFML published 2023 workforce notifications, posters, and rate sheets, reflecting among other things, the new rates and benefit amounts. Employers are required to provide written notice of PFML benefits, contribution rates, and other provisions as outlined in M.G.L. c. 175M § 4 to employees.

For current employees who have previously signed an acknowledgment form, employers must provide information about the new contribution rate 30 days in advance of the rate change (i.e., December 2, 2022). The notice may be provided electronically and does not require an updated signature.

For new hires, employers must provide notification within 30 days of hire. The notice must include the opportunity for an employee to accept or decline receipt of the information. Each employee should return a signed acknowledgment form, whether in paper or electronically, or the employer must be able to verify its effort to furnish the information to the employee.

Covered Individual

The 2023 mandatory workplace poster updates the earnings requirement for a worker to qualify as a covered individual eligible for PFML benefits. Namely, the worker must have earned 30 times the expected benefit and more than $6,000 (adjusted annually) in the last four completed quarters preceding the application for benefits (an increase from $5,700 in 2022).

Mandatory 2023 Poster

The 2023 mandatory workplace poster reflects the changes in weekly benefit amounts, contribution rates, and covered individual eligibility. All Massachusetts employers must display this poster in a location where it can be easily read. Employers may also consider making this poster digitally available to reach remote Massachusetts workers, if any.

Impact of Changes

Employers providing benefits through the Commonwealth’s plan remain responsible for remitting family and medical leave contributions to the DFML on behalf of their covered individuals. With the new rates for 2023, employers should prepare to make the appropriate payroll adjustments, adopt revised workforce notifications, and replace the 2022 mandatory workplace poster with the 2023 mandatory workplace poster at the start of the New Year. Further, employers who have leave policies that include reference to contribution rates and other details that are subject to the 2023 updates should revise the same accordingly.

Employers have a continuing obligation to provide written notice to their current workforce of PFML benefits, contribution rates, and other provisions as outlined in the PFML statute. With the new rate contributions going into effect on January 1, 2023, employers will be required to give notice to their employees by December 2, 2022. Failure to provide the required notifications may result in fines, including $50 per employee for the first violation and $300 per employee for subsequent violations.

For Questions/Compliance Assistance

If you have any questions about Massachusetts Paid Family and Medical Leave and its potential impact on your business, please contact:

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EEOC Releases Updated “Know Your Rights” Workplace Poster

By Alicia Ward, Peter Moser, Kathleen Berney, Catherine Reuben   October 26, 2022

The U.S. Equal Employment Opportunity Commission (EEOC) just announced its release of a new version of the “Know Your Rights: Workplace Discrimination is Illegal” workplace poster, which updates the “EEO is the Law” poster.

The updated version of the “Know Your Rights: Workplace Discrimination is Illegal” workplace poster is available here.

Covered employers must prominently display the poster which summarizes employment discrimination laws and explains how to file a complaint. Most employers with at least 15 employees are covered by the federal anti-discrimination laws enforced by the EEOC (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. Workplace posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post a notice digitally on their websites in a conspicuous location.

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The new “Know Your Rights” poster includes the following changes:

  • Uses straightforward language and formatting;
  • Notes that harassment is a prohibited form of discrimination;
  • Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity;
  • Adds a QR code for fast digital access to the how to file a charge webpage;
  • Provides information about equal pay discrimination for federal contractors.

Employers should not only update the “Know Your Rights” poster, but also take the opportunity to confirm that their state and local workplace posters are likewise up to date.

If you have any questions, please consult your HRW attorney, including:

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Creating a Respectful and Open World for Natural Hair (“CROWN”) Act

By Julia Russo, Catherine Reuben, Peter Moser   August 5, 2022

On July 26, 2022, Governor Charlie Baker signed into law the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act, which prohibits discrimination based on natural and protective hairstyles in workplaces, school districts, and certain school-related organizations. The Massachusetts CROWN Act makes it illegal to discriminate against a person for donning natural hair texture, hair type, and hairstyles, which include, but are not limited to, braids, locks, twists, Bantu knots, and other formations. It also blocks Massachusetts employees, students, and other individuals from being denied employment or educational opportunities due to their hairstyles and hair textures.

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By enacting the CROWN Act, Massachusetts follows 17 other states that have passed similar legislation banning discrimination on the basis of a person’s natural or protective hairstyle. Although a federal CROWN Act was introduced to Congress and passed by the House of Representatives in March of 2022, it has not yet passed the Senate to date.

Under the new law, employers and school districts in the Commonwealth of Massachusetts may not adopt or implement a policy or code that impairs or prohibits natural hairstyles. In response to the passage of the CROWN Act, Massachusetts employers should refrain from banning certain natural hairstyles outright. Employers should consider updating their equal employment opportunity and nondiscrimination policies and review their employee handbook and any grooming or appearance policies to ensure that they are not in violation of the anti-discrimination provisions of the law. Employers may also consider providing training opportunities to managers, supervisors, and hiring personnel so they are informed of these new protections.

The CROWN Act will take effect on October 24, 2022, and the Massachusetts Commission Against Discrimination will be responsible for enforcing these protections. The Massachusetts law may entitle an employee who proves their employer discriminated against them on the basis of their natural hairstyle to recover economic and compensatory damages, punitive damages, and reasonable attorneys’ fees.

For questions, please consult your HRW attorney, including:

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Payment of Final Wages Upon Separation: New SJC Decision Increases Employer Exposure

By Peter Moser, Catherine Reuben, Kathleen Berney, Richard Loftus   April 11, 2022

Last week, the Massachusetts Supreme Judicial Court (“SJC”) issued an opinion that all Massachusetts employers should be aware of when discharging an employee. The SJC ruled that even in the case of a minor miscalculation or delay in payment of final wages, the employee is entitled to triple damages and attorneys fees. This decision increases the stakes and the risk of litigation over seemingly minor discrepancies or delays in final wage payment.

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Under the express language of the Wage Act¹:

(i) “any employee discharged from such employment shall be paid in full on the day of his discharge”, with “wages” being defined to include all earned vacation time,
(ii) an aggrieved employee may file a lawsuit “for injunctive relief, for any damages incurred, and for any lost wages and other benefits”; and
(iii) an employee who wins their lawsuit “shall be rewarded trebled damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the cost of the litigation and reasonable attorneys’ fees.”²

In the past, relying on previous Massachusetts court decisions, employers who failed to pay final wages owed on the day of involuntary discharge could remedy the situation by belatedly paying the employee the amount owed plus interest from the termination date to the date of payment, so long as payment was made before the employee filed a lawsuit.³

In the recent case of Reuter v. City of Methuen, No. SJC-1312 (Mass. Apr. 4, 2022) (slip op.), however, the SJC ruled that this common pre-litigation remedial approach was “incorrect”.⁴ The Court held that employers must pay treble (triple) the amount of the late wages as damages any time an employer’s payment is late. The SJC further emphasized that even an inadvertent “miscalculation” rendering payment late would make an employer liable for treble damages.

In Reuter, the plaintiff (“Employee”) was terminated from her job as a janitor at the Methuen city’s school department (“Employer”) when the Employer learned that she had been convicted of a felony. As of the date the Employee was terminated, she had accrued nearly $9,000 in vacation time, which the Employer paid her in full three weeks later. The Employee challenged her termination in court, and one year later, after she had lost her case, the Employer sent her a check for $185.42, which represented a trebling of the annual interest on her three-week late payment.⁵ The Employee then filed Wage Act claims against the Employer seeking damages for failure to pay her vacation pay on the day of termination.⁶ The case proceeded to a trial before a Superior Court judge who ruled that the Employee was only entitled to treble the interest owed for the three-week delay in receiving her vacation pay, which the Employer had already paid her, plus attorneys’ fees. When the Employee appealed the ruling, the SJC, Massachusetts’ highest court, accepted the case on its own motion.

The SJC rejected prior lower court decisions, reasoning that the plain language of the Wage Act provides employers no defense to pay late wages pre-complaint,⁷ nor does it include language that the payment of interest-only is a remedy for late payments. The SJC opined that this approach would “authorize” and “even encourage” nonpayment as well as late payment of final wages by employers.⁸ Together, the purpose and the language of the Wage Act, the SJC noted, “leaves no wiggle room” for the late payment of wages, and that “any delay” in payment “may have severe consequences for the employee.”⁹ In short, the SJC in Reuter, overturned lower court precedent by holding that when an employer has violated the Wage Act through late payment of wages, the employer will be required to pay the employee triple the amount of wages owed, plus attorney’s fees and costs; any interest owed for back pay is in addition to these awards to the claimant.

Employer Takeaways from Reuter:

    • A discharged worker must be paid all wages owed on the date of discharge, including any vacation payments due, or else the employer risks being held liable to pay triple the amount of late wages, plus attorney’s fees and costs, plus interest.
    • Employers should be cautious about making final wage payments by direct deposit, as the payment does not always hit the discharged employee’s bank account on the date of termination; even a one-day delay in payment places the employer at risk of a lawsuit and treble damages.
    • The SJC emphasized that the Wage Act imposes strict liability on employers providing no excuse for late payments even due to a miscalculation. Consequently, employers should very carefully calculate the amount owed to a discharged employee; when in doubt, consider erring on the side of payment given the risks of a Wage Act claim.
    • Even in the case of employee misconduct, including illegal or harmful acts (an illegal act was the basis for Reuter’s termination), the Reuter decision suggests that employers who are unable to pay the employee all wages owed should opt to place the employee on a brief suspension until final payment can be calculated and arranged. It appears that no matter how egregious the employee conduct, and how clear-cut the need for immediate termination may be, an employer must pay the employee all wages owed on the day of separation without exception.
    • This case does not impact payment of final wages to an employee who voluntarily quits or resigns. In that instance, the employer must pay the employee in full on either the “following regular pay day, or in the absence of a regular pay day, on the following Saturday.”¹º The SJC emphasized that when an employee quits, the employee controls when they leave and has often obtained another job, as opposed to involuntarily termination, where an employee has no opportunity to plan ahead.
    • Employers should consider reviewing their payroll practices to avoid late payment of wages, particularly employers that pay their employees on a bi-monthly or monthly basis. Although the SJC was not addressing the regular payment of wages in Reuter, the Court did reference the Wage Act requirement that employers must pay their employees “weekly or bi-weekly within either six or seven days of the termination of the pay period during which the wages were earned,”¹¹ suggesting that a failure to comply would be a late payment subjecting an employer to similar damages.

For questions, please consult your HRW attorney including:

 

¹ M.G.L. c. 149, §§ 148,150.
² Prior lower court decisions concluded that wages were not actually “lost” if interest was paid for the period of the unpaid amount prior to the filing of a complaint by the employee.
³ In particular, see Dobin vs. CIOview Corp., Mass. Sup. Ct., No. 2001-00108 (Middlesex County Oct. 29, 2003); Reuter, p. 15.
Id. at p. 15.
⁵ The defendant calculated the interest at an annual rate of 12%.
⁶ Reuter also alleged a class claim on behalf of all city employees who were “involuntarily dismissed” or “voluntarily left employment”
within the last 3 years. A judge denied class certification and Reuter did not appeal this ruling.
⁷ See Reuter at pp. 15-16, providing that “no defen[s]e for failure to pay as required… shall be valid” except “the attachment of such
wages by trustee process or a valid assignment thereof or a valid set–off against the same, or the absence of the employee from his
regular place of labor at the time of payment, or an actual tender to such employee at the time of payment of the wages so earned by
him” (citing M.G.L. c. 149, §150) (emphases added by SJC).
Id. at p. 17.
⁹ See id. at pp. 10, 11.
¹º See Reuter, pp. 12-13, citing M.G.L. c. 149, § 148.
¹¹ See Reuter, pp. 5-6, citing M.G.L. c. 149, § 148.


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Webinar and Information on OSHA’s Emergency Temporary Standard Mandating Vaccination for Employers with 100+ Employees

By Janette Ekanem, Peter Moser, Catherine Reuben, David Wilson   November 8, 2021

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace.

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Pursuant to the ETS, employers with at least 100 employees must either (1) adopt a mandatory COVID-19 vaccination policy or (2) adopt a policy that requires employees to either choose to get vaccinated or undergo weekly testing and wear a face covering at work. The ETS further requires employers to provide paid time off for vaccination and recovery, and to provide written materials to educate their workforce about the requirements of the law and their rights. Employers must be in compliance with most provisions of the ETS by December 5, 2021.

On Wednesday, November 10, 2021, at 12 pm, Hirsch Roberts Weinstein LLP will conduct a webinar for employers. We will review the provisions of the ETS, and steps larger employers need to take now to get into compliance. Please use the link to register for the webinar in advance.

Please join us for this timely and important presentation. See below for more information about the ETS.

OSHA Resources for Employers

OSHA has created a website devoted to the ETS. The website is chock full of useful information and documentation, including sample policies, fact sheets for employees that can be used to satisfy the notice requirements, and answers to Frequently Asked Questions.

Summary of Employer Requirements

Policy: Employers with at least 100 employees – and all employees company-wide count – have a choice. They can either adopt a mandatory COVID-19 vaccination policy OR adopt a policy that requires employees to either choose to get vaccinated or undergo weekly testing and wear a face covering at work. The only exceptions are for persons for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or employees legally entitled to a reasonable accommodation on the basis of religion or disability.

Paid Time Off: Employers must provide employees with time off to receive the COVID-19 vaccine, up to four hours of which must be paid. This paid time off is in addition to any sick or vacation time already provided by the employer. The employer must also provide a “reasonable” amount of paid sick leave to employees to recover from any side effects experienced following vaccination. Employers can require employees to use their existing paid time off for this purpose, but if the employee has none left, must still provide the benefit and cannot require the employee to borrow against future accruals or go into a negative balance.

Records of Vaccination Status: Employers must obtain and preserve a record of every employee’s vaccination status. Employers must require employees to present proof of vaccination, and the ETS goes into great detail as to what types of proof are acceptable, and what to do if an employee claims they are unable to obtain that proof. These records are considered confidential employee medical records. Employees and unions have the right to information regarding the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at the workplace, but are not permitted to know the vaccination status of individuals (other than their own status).

Weekly Testing: Employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly. Employers must keep records of the results of the test. The ETS itself does not require that employers pay for the test, but payment may be required in some circumstances under collective bargaining agreements and state law. The ETS goes into detail about what types of tests are considered acceptable. Over the counter tests are permitted, provided that the employer or a telehealth proctor observes the employee taking it.

Reporting of Positive Test Results: Employers must require employees to provide prompt notice when they test positive for COVID-19 and to remove employees from the workplace when they test positive for the virus, regardless of their vaccination status. The ETS does not require that employees be given paid time off when they are so removed, but paid time off may be required under other laws (like the Massachusetts Earned Sick Time law) and Company policy.

Face Coverings: Employers must ensure that employees who are not fully vaccinated wear face coverings when indoors or occupying a vehicle with another person while working. The ETS goes into detail about which types of coverings are and are not permissible, and how they must be worn. Employees may of course also elect to voluntarily wear face coverings regardless of vaccination status.

Remote Workers: Remote workers count for purposes of calculating an employer’s workforce, but do not have to be vaccinated or tested if they are 100% remote.

Notice and Education: Employers must provide information to every employee about the requirements of the ETS in a language and at a literacy level that they can understand. Specifically, employers must provide information about the requirements of the ETS, the employer’s policies and procedures, a document called “Key Things to Know About COVID-19 Vaccines”,  information about workers’ rights under the ETS, including the right to be free from retaliation, and criminal penalties associated with knowingly supplying false statements or documentation.

Compliance

The ETS is effective immediately and employers must comply with most provisions of the ETS by December 5, 2021, and the standard’s testing requirement by January 4, 2022. As is the case with any OSHA requirement, employers that fail to comply with the requirements of the ETS could face significant penalties and liability.

For Questions/Compliance Assistance 

If you have any questions about Massachusetts’ Paid Family and Medical Leave and its potential impact on your business or organization, please contact:

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