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.

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.

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.

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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Massachusetts Provides Updated Poster Regarding Newly Extended and Expanded COVID-19 Paid Sick Leave

By Peter Moser, Catherine Reuben, Alicia Ward   October 17, 2021

In late September, the Massachusetts Legislature extended and expanded the Commonwealth’s COVID-19 Temporary Emergency Paid Sick Leave law.

The law, which was set to expire on September 30, 2021, and which required employers to provide up to one week of reimbursable paid leave to employees for certain COVID-19 related reasons, was extended through April 1, 2022 (or earlier if funding is exhausted) and was also expanded to cover several additional reasons for leave. The additional reasons for leave include an employee needing to take a family member to obtain a COVID-19 vaccination or needing to care for a family member recovering from a COVID-19 vaccination.

On October 5, 2021, the Commonwealth published a revised Notice to Employees reflecting these recent changes.

Employers should (a) post the updated Notice to Employees in a conspicuous location accessible to employees; and (b) provide a copy to their employees. For employers that do not maintain a physical workplace or for employers that have employees who work remotely, the notification obligations may be satisfied by sending the updated Notice to Employees via email or posting in a web-based platform.

Additional information concerning the Massachusetts COVID-19 Emergency Paid Sick Leave program can be found at Massachusetts’ Guidance on the program, as well as in previous client alerts from September 30, 2021, July 12, 2021, and June 8, 2021.

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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Recent Massachusetts Paid Family & Medical Leave Updates

By Kathleen Berney, Catherine Reuben, Alicia Ward   October 10, 2021

On October 1, 2021, the Department of Family and Medical Leave (DFML) announced important changes to the state average weekly wage, maximum weekly benefit amount, and contribution rates.

Key Changes

As of October 1, 2021, the average weekly wage for Massachusetts increased to $1,694.24 from $1,487.78.

By October 1 of each year, the DFML must adjust the maximum weekly paid family or medical leave (PFML) benefit to be 64% of the state average weekly wage, to take effect January 1 of the following year. With this year’s increase in the average weekly wage, a corresponding increase in the maximum weekly PFML leave benefit will also go into effect.

Beginning in January 2022, the maximum total amount that employees can receive in PFML benefits will be $1,084.31 per week, an increase from the current $850 per week maximum total amount.

Effective January 1, 2022, the contribution rate on eligible employee wages will decrease from 0.75% to 0.68%. For additional details about updates to the contribution rates for 2022, please visit the MA DFML website.

Impact on Employers

Employers remain responsible for remitting family and medical leave contributions to the DFML on behalf of their covered individuals. With the new rates for 2022, employers should prepare to make the appropriate payroll adjustments.

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, 2022, employers will be required to give notice to their employees within 30 days, or by January 31, 2022. We anticipate that the DFML will be creating a new model notice for employers to use.

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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