Compliance, Policies & Notices


In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012.  This post addresses the next two steps in this process.

These blog posts also address when an employer conducts its own CORI checks.  However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks.  If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.

Step 3:  Notifying Employee/Applicant of CORI

Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.

If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:

  • notify the individual in writing of the potential adverse employment action;
  • provide a copy of the CORI, identifying
… Keep reading
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5 Steps for Employer Use of Criminal Records: Part 1


Massachusetts enacted broad reforms to its Criminal Offender Record Information (“CORI”) laws in August 2010.  These reforms emphasize existing non-discrimination requirements and provide new requirements for accessing records through the on-line system (“iCORI”), as well as using and maintaining criminal records. 

The first part of the CORI reform laws became effective in November 2010, requiring employers to refrain from asking employees and job applicants to provide their criminal record history.  The second part became effective May 4, 2012, requiring employers to follow certain procedures for obtaining and handling criminal records information when screening existing employees and applicants, and providing employees/applicants with certain due process rights before an employer can make an adverse employment decision based on such records. 

The CORI system is complicated, and employers can easily and unknowingly run afoul of its mandates and prohibitions.  To help you avoid exposure to these risks, I have broken down the CORI process into five steps.  The first two steps are detailed in this post and the remaining steps will be explored in separate posts in the coming weeks.

Step 1: Registering and Preparing for CORI Access

Employers must register with the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) to … Keep reading

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Providing Temporary Accommodations for Employee Disability


It’s never easy to navigate the legal requirements when an employee has a medical condition or  disability.  One of the many complications is providing a “reasonable accommodation,” a process that often requires significant time and careful consideration of how and what medical information can be obtained and scrutinized. 

In providing accommodations, some employers hesitate to relieve employees from certain “essential job functions” temporarily while the employee is recovering from a medical condition, or while it’s unclear how long a condition will last.  Based on the First Circuit’s decision in Jones v. Walgreens, Inc., et al., however, relieving an employee temporarily from certain “essential job functions” does not require the employer to permanently eliminate those essential job functions from the employee’s job.

In Jones, plaintiff-employee Jones, a Walgreens store manager, had been on several leaves of absence from January 2004 to October 2005 after suffering a knee injury when she slipped on ice outside Walgreens’ office.  In her second leave of absence, Jones indicated that she hoped to return to work with “reasonable accommodations.”  Walgreens welcomed her back to work with some physical lifting, bending, squatting and twisting limitations.  Twenty-two months later, in October 2005, Walgreens offered her … Keep reading

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In a prior post, we had reminded you that certain changes to the National Labor Relations Act (NLRA) regulations would become effective on April 30. 

However, as of Friday, April 13, in a case brought by the U.S. Chamber of Commerce, the U.S. District Court of South Carolina decided to strike down the requirement to post notices informing employees of their rights to unionize under the NLRA.  The South Carolina federal court decided that the posting requirements exceeded the authority of the National Labor Relations Board (NLRB), the entity charged with enforcing the NLRA.  The D.C. Circuit Court of Appeals promptly followed, issuing an injunction putting the notice posting requirement on hold, pending the resolution of whether or not the NLRB had the authority to issue the notice posting requirement. 

As a result, yesterday afternoon, the NLRB announced that its regional offices would not implement the rule requiring posting of notices of NLRA rights while the appeal of the D.C. Circuit’s decision is pending. … Keep reading

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As summer internship season approaches, employers should carefully institute internship programs which comply with the requirements of the Fair Labor Standards Act (FLSA). 

The Test.

In the case of “for-profit” companies, unpaid internships must meet the strict criteria of the FLSA.  Specifically, as stated in U.S. Department of Labor’s (DOL) FLSA Fact Sheet #71 unpaid interns must:

  1. Receive training similar to that provided in an educational environment
  2. Be for the benefit of the intern, and not the employer
  3. Not displace regular paid employees
  4. Be closely supervised by existing staff
  5. Not be used for the immediate advantage of the employer (and in some cases, may impede the employer’s operations)
  6. Not necessarily be entitled to a job after the end of the internship
  7. Understand that the intern is not entitled to wages for time spent in the internship

… Keep reading

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Even the most sophisticated employer in the most intellectually demanding industry may misclassify its workers as “exempt” when they are, in fact “non-exempt.”  The increasing number of misclassification litigation is a sure sign that no one is completely immune from inadvertently misclassifying workers. 

What exactly are the workers “exempt” from anyway?  The federal Fair Labor Standards Act (FLSA) requires that workers be paid a minimum wage for every hour they work and an overtime premium for any hours in excess of 40 hours worked in a week, but it permits employers from excluding certain types of employees from each of these requirements; hence, they are “exempt” employees.  The most common areas of exemption are known as the “white collar” exemptions.  These exempt employees are:

Of course, these “white collar” classifications may appear straightforward, but like the roads in the Tuscan hillside, they can become quite foggy and have twists and turns from time to time.  Don’t fall for the typical myths about exempt classifications.

Myth No. 1:  If the employee is paid a “salary” rather than “hourly,” the employee must be “exempt.”

Although any employee who is paid on an “hourly” basis … Keep reading

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NOTE:  Some changes have occurred since this entry was originally posted.  Please see new post from April 18, 2012 for an update.

On April 30, 2012, a number of major changes to the National Labor Relations Act (NLRA) regulations will take effect and businesses, especially those that are not unionized, should take heed.  While many employers view the NLRA as a “traditional” labor law that is  not applicable to private, non-union entities,  almost all employers engaged in interstate commerce are subject to the NLRA. 

Two of these changes (effective April 30) are of particular note:

  1. Posting of Notices:  As of April 30, 2012, all employers must post the Notice of Employee Rights under the National Labor Relations Act (English).  For now, failure to comply with the posting requirement does not automatically result in an unfair labor practice, as the regulation was originally drafted, but it is likely that the National Labor Relations Board (NLRB)will draw an adverse inference from an employer’s failure to post.  The posters must be 11 x 17 inches in size and posted in English and any other language which at least 20% of the workforce speaks, if they are not proficient in
… Keep reading
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With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation.   What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law. 

The Massachusetts transgender rights law defines “gender identity” as:

[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

This law allows employees to establish a workplace gender identity by providing their employer with evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or “any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity.”

Notwithstanding this new law, the Massachusetts Commission Against Discrimination has already found that transgender employees are protected under the Commonwealth’s existing sex and disability discrimination laws.  Thus, we have long counseled Massachusetts employers to treat transgendered employees as a protected class, and we do not anticipate that this legislation will change that fundamental advice. … Keep reading

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Most employment claims can be avoided by simply being aware of what the law requires.  Here are three recurring issues which plaintiffs’ class action attorneys and government agencies are targeting across the country and which can be easily avoided by taking action now.

1.  Misclassification of Workers as Independent Contractors

The Internal Revenue Service (IRS) and US Department of Labor (US DOL) have been increasingly cracking down on independent contractor misclassification.  Last year, Massachusetts, along with several other states, signed a Memorandum of Understanding (MOU) with the IRS and  DOL, formally agreeing to cooperate in investigating independent contractor misclassifications.  If a violation occurs, the government agency investigating the matter is obligated to report it to the other state and federal agencies which may be affected by the misclassification, potentially opening up the company to an audit by the IRS or the US DOL.

Massachusetts has one of the toughest tests to be met in order to classify someone as an independent contractor, and the penalties for misclassifying vary with the legal requirement which was not met as a result of the misclassification.  For example, if a worker was not paid accrued wages or vacation time upon termination, the … Keep reading

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