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The In-House Advisor Published by Shepard Davidson & Renee Inomata

Category Archives: Compliance, Policies & Notices

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3 Practical Challenges for Employers Created by Legalized Marijuana

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discipline & Performance Management, Hiring, Supervisor Training

When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit… Continue Reading

December 1 Overtime Final Rule on Hold

Posted in Compliance, Policies & Notices, Wage & Hour, Worker Classifications

On November 22, the U.S. District Court for the Eastern District of Texas granted the request of 21 states to temporarily halt the effective date the U.S. Department of Labor’s Final Rule (“Final Rule”) raising the salary threshold to qualify for the white collar exemptions from minimum wage and overtime requirements from taking effect. Accordingly,… Continue Reading

Whistleblower Immunity Required Under Defend Trade Secrets Act

Posted in Compliance, Policies & Notices, Confidentiality, Contracts, Noncompetition & Other Restrictive Covenants

The new Defend Trade Secrets Act (“DTSA”) allows owners of trade secrets to now bring a civil action in federal court to protect their trade secrets and confidential information. Further, under the DTSA, a trade secret owner may be awarded actual damages, injunctive relief, restitution, the extraordinary relief of ex parte seizure orders and, if there is willful or… Continue Reading

4 Things You Need to Know About the Earned Sick Time Law

Posted in Compliance, Policies & Notices, Employee Benefits

Earlier this year, in Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know, I previewed some of the requirements of the Massachusetts Earned Sick Time Law. Final regulations were issued by the Attorney General’s office on June 22, 2015. Almost one month after the deadline for compliance, how are you doing… Continue Reading

Rare Decision Finds Workers Were Properly Classified as Independent Contractors

Posted in Compliance, Policies & Notices, Worker Classifications

Convincing a court that a company has properly classified a worker as an independent contractor has become increasingly difficult in Massachusetts. So, the Massachusetts Supreme Judicial Court’s decision just last week that taxicab drivers are, in fact, properly classified as independent contractors was somewhat unexpected.

Employers Beware: New Standard Issued for Accommodating Pregnancy

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discrimination

Earlier this week, the U.S. Supreme Court declared that a new test applies for pregnancy discrimination. In Young v. UPS, the Supremes decided that in pregnancy discrimination actions under the federal Pregnancy Discrimination Act (“PDA”), the long-standing McDonnell-Douglas burden shifting test does not apply. Employers should ensure their policies, especially any light duty policies, comply… Continue Reading

Hey Guys, You Get “Maternity” Leave, Too!

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discrimination, Employee Benefits

For years, the Massachusetts Maternity Leave Act (“MMLA”), M.G.L. c. 149, §105D, only applied to female employees by its literal terms. The Massachusetts Commission Against Discrimination (“MCAD”), the agency tasked with enforcing the MMLA, has taken the position that if the MMLA was applied literally, it would be unconstitutional, as it would give female employees… Continue Reading

Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know

Posted in Compliance, Policies & Notices, Employee Benefits

As indicated in a recent blog post in the Harvard Business Review, entitled “Who Has Paid Sick Leave, Who Doesn’t, and What’s Changing,” paid sick leave traditionally was a benefit that only some employers provided, and in some cases only to certain employees. In recent years, however, increasing numbers of cities and states have begun… Continue Reading

NFL Could Learn From New MA Domestic Violence Law

Posted in Compliance, Policies & Notices

Baltimore Ravens running back Ray Rice, Carolina Panthers Pro Bowl defensive end Greg Hardy, and San Francisco 49ers defensive end Ray MacDonald all have something in common (and it’s not just that they are incredibly talented professional football players):  They have all been indicted for engaging in conduct that constitutes domestic violence.  In Hardy’s case,… Continue Reading

Your Trade Secrets May Be Vulnerable to “Legal” Theft

Posted in Compliance, Policies & Notices, Noncompetition & Other Restrictive Covenants, Privacy & Data Security

As in-house counsel, how would you like to tell your CEO: “While our customer lists, pricing information, and business processes are trade secrets, we can’t sue the independent contractor who stole them because we did not do enough to protect those trade secrets.”  Sound contrived?  Well, that is exactly the ruling one Massachusetts Superior Court… Continue Reading

Hiring/On-boarding Checklist

Posted in Compliance, Policies & Notices, Hiring, Wage & Hour

For entrepreneurs starting a new business, the focus often is on developing the products or services being offered by the business and, maybe, financing for getting (and keeping) the business off the ground. Yet, regardless of whether the business offers products or services, no business can succeed without people. Therefore, setting up proper intake systems for… Continue Reading

New FTC Advertising Guidelines Are Worth a Review

Posted in Compliance, Policies & Notices

In a recent post, I discussed how a company could be liable for referencing a third-party’s unbiased endorsement if, unbeknownst to that company, the basis for the endorsement turned out to be unjustified.  In another advertising-related development last week, the Federal Trade Commission (FTC) issued new guidelines: How to Make Effective Disclosures in Digital Advertising. … Continue Reading

Be Aware of More Aggressive Enforcement of Equal Pay

Posted in Compliance, Policies & Notices

The Director of the Office of Federal Contract Compliance Programs (OFCCP), Patricia A. Shiu, just announced that prior voluntary guidelines and compliance standards for federal contractors and subcontractors to comply with equal pay obligations will be rescinded, effective February 28, 2013.  The OFCCP will be instituting new procedures which, in effect, would broaden the scope… Continue Reading

Employees Misclassified as Independent Contractors Pose Significant Risks

Posted in Compliance, Policies & Notices, Miscellaneous Employment, Worker Classifications

Many are familiar with Juliet’s tribute to Romeo: “What’s in a name? that which we call a rose By any other name would smell as sweet.”  In the context of employees and independent contractors, however, Juliet is quite wrong.  As I discussed in a prior post, it can be perilous to misclassify workers as independent… Continue Reading

Requiring Employee Confidentiality of Investigation is Unlawful, Says NLRB

Posted in Compliance, Policies & Notices, Labor Relations

In a prior post, I had discussed the importance of properly investigating allegations of sexual harassment.  Now, the National Labor Relations Board (NLRB) has added a related issue to consider: When can employers prohibit employees from discussing ongoing investigations?  In its July 31, 2012 decision in Banner Health Systems, d/b/a Banner Estrella Medical Center and… Continue Reading

Employers Still Required to Provide Unpaid and Work-Free Maternity Leaves

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discrimination, Employee Benefits

Yahoo!, Twitter, Facebook and every possible media outlet have been aflutter with praise and criticism since newly appointed Yahoo! CEO Marissa Mayer announced to Fortune magazine that she is pregnant and taking a “few weeks” of maternity leave and will be “working throughout it”.  Though this may be heartening for Yahoo! investors, the typical employer… Continue Reading

Prevent Employer Liability By Properly Investigating Sexual Harassment Claims

Posted in Compliance, Policies & Notices, Discrimination, Harassment, Supervisor Training

A recent decision by a full panel of the Massachusetts Commission Against Discrimination (MCAD) emphasizes the need for supervisors to understand their duty to act to ensure that unlawful harassment allegations are addressed and that any such conduct ceases. Since 1998, two cases decided by the U.S. Supreme Court, Faragher v. City of Boca Raton… Continue Reading

New Fee Disclosure Requirements Affecting Participant-Invested Retirement Plans

Posted in Compliance, Policies & Notices, Employee Benefits, Fiduciary Duties

As of August 30, 2012, administrators of retirement plans that allow participants to select investment of their accounts will be required to disclose specific information about the fees associated with such investments.  One of my talented partners in the Labor, Employment and Employee Benefits Group at Burns & Levinson, Evelyn Haralampu, provides some simple guidance about… Continue Reading

5 Steps for Employer Use of Criminal Records: Part 3

Posted in Compliance, Policies & Notices, Confidentiality and Non-Disparagement, Discrimination, Hiring, Miscellaneous Employment, Privacy & Data Security

In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records.  Here in Part 3 and the last part of this series, I address the process of the handling of the documents.  Step 5:  Handling Documents with CORI Criminal records information obtained from any source is confidential, and employers… Continue Reading

5 Steps for Employer Use of Criminal Records: Part 2

Posted in Compliance, Policies & Notices, Confidentiality and Non-Disparagement, Discrimination, Hiring, Miscellaneous Employment, Privacy & Data Security

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. … Continue Reading

5 Steps for Employer Use of Criminal Records: Part 1

Posted in Compliance, Policies & Notices, Discrimination, Hiring, Miscellaneous Employment

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… Continue Reading

Providing Temporary Accommodations for Employee Disability

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discipline & Performance Management, Discrimination

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… Continue Reading

April 30 Union Rights Notice Posting Deadline on Hold

Posted in Compliance, Policies & Notices, Injunctions and Attachments, Labor Relations

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… Continue Reading

Unpaid Interns: When Are They Permitted?

Posted in Compliance, Policies & Notices, Hiring, Wage & Hour, Worker Classifications

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… Continue Reading