Renee Inomata

Gender equality wages


Gender equality wagesThe 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and compliance standards for federal contractors and subcontractors to comply with equal pay obligations will be rescinded, effective February 28, 2013.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 of OFCCP’s investigations and allow OFCCP to “use every enforcement tool at its disposal to combat pay discrimination.”

In connection with its new efforts to remedy pay discrimination, the OFCCP issued Directive 307, setting forth the procedures for OFCCP contractors to review contractor compensation systems and practices.  The OFCCP also issued helpful “FAQs” to assist in navigating through the Directive and will be providing webinars to assist contractors with compliance.

We have a few of our own FAQs which may be helpful to employers and in-house counsel:

Q:  Does this apply to my company?

A:  If you are an employer with federal service or supply contracts or subcontracts that exceed $10,000 or that will (or can reasonably be expected to) accumulate to more than $10,000 in any 12-month period, you are required to comply with Executive Order 11246, Section 503 of the … Keep reading

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Just as in romance, employer-employee relationships often are at their best in the courting stage.  During the after-glow of an initial hire, many employers wish to make new employees feel welcome by sending confirmatory offer letters.  Yet, in that warm and fuzzy moment, employers also should keep in mind that they may be binding themselves to certain obligations to which they never intended to be bound. 

To minimize regret when the employer-employee relationship goes sour, here are my top six tips of things to avoid in offer letters:

  1. If you intend for the employee to actually stay on for a set period of time, the term may be included, but be sure to couch the term as “anticipated term” and allow yourself the ability to terminate the relationship before the end of the term.  If the employment is “at-will,” specifically state “your employment is at-will, which means that you or the company may terminate your employment at any time for any reason or no reason at all.”
  2. Avoid stating compensation as an annual salary.  For example, state that the compensation to be provided an employee is $X per week, which is the equivalent of $Y annualized.  A promise of
… Keep reading
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With the new year, taking the time to review the status of your independent contractors may create valuable savings.  Independent contractors, when properly classified, can often be a valuable and efficient means for both businesses and individuals to conduct business.  Many businesses engage workers on an independent contractor basis as means of avoiding rigorous requirements associated with an employment relationship, including payment of minimum wages and overtime; provision of benefits, workers’ compensation insurance and unemployment benefits; and protections under discrimination and safety laws – all of which may result in significant costs to the operation of a business.  If employees are misclassified as independent contractors, however, the company risks the potentially hefty damages resulting from a misclassification. 

The downturn in the economy has changed the face of independent contractor arrangements for a variety of reasons.  For workers, being classified as employees often means that they receive benefits, including paid vacation time, subsidized health insurance, workers compensation insurance benefits and unemployment benefits.  For many government agencies, classifying workers as employees often generates greater revenue from employment taxes that should have been paid, plus penalties and interest.  According to the National Employment Law Project’s Summary of Independent Contractor Reforms, New State … Keep reading

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One size most certainly does not fit all when it comes to noncompetition agreements.  Every state has its own requirements when it comes to the enforceability of employee noncompetition agreements.  In some, such as California, noncompetition agreements are unlawful by statute.  In other states, such as Colorado, noncompetition agreements may only be enforced in certain specific settings, such as the sale of a business.  In many states, however, noncompetition agreements will be enforced if they protect the company’s legitimate business interests and are reasonable in time, geographic scope and the scope of the limitations on the employee’s ability to perform his profession.  Where noncompetition agreements are not void as a matter of law, they are great fodder for litigators because there is no uniform definition of “legitimate business interest” and no consistent test to determine if the time, geographic scope and the scope of limitations on the employee’s ability to perform his profession are “reasonable.”  These criteria are very fact and case specific.

Although most litigation of noncompetes focuses on whether the business interests of the employer are “legitimate,” and/or if the geographic and temporal scopes of the limitations are “reasonable.” Equally important to the enforceability of a … Keep reading

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Employees Misclassified as Independent Contractors Pose Significant Risks


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 contractors, and, under the Massachusetts independent contractor law, workers are deemed employees unless all three of the following criteria, commonly known as the “ABC” Test, exist:

  1. the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
  2. the service is performed outside the usual course of the business of the employer; and
  3. the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Further, misclassifying an employee as an independent contractor could trigger violations of other laws, with the Massachusetts Weekly Payment of Wages Act (“Wage Act”) (and its mandatory treble damages and attorneys’ fees) being the most treacherous. 

… Keep reading

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Employees not at work


Although there are many occasions when an employer may lawfully terminate a non-performing or absent employee, if the reason for the non-performance or absence is based on a physical or mental condition – or a perceived physical or mental condition – employers are well-served to carefully scrutinize the facts before deciding to terminate an employee.  Here are a few examples of where further scrutiny is well worth the effort:

 Employees not at work1.  Where the basis for termination comes only from a single source.

Assume, for example, that a line manager recommends the termination of an employee because she is “unreliable.” In reality, and unbeknownst to the employer, the line manager actually wants the employee fired because he feels inconvenienced by having to cover her authorized, intermittent leave hours.  If the employer takes the line manager’s word that the employee is simply “unreliable” and terminates the employee taking intermittent leave, the employer will potentially be liable for disability discrimination or a violation of the Family and Medical Leave Act.  Thus, when the basis for making an employment termination decision comes only from one person, in-house counsel should advise the company to do whatever it can to verify the facts through one … Keep reading

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NLRB Employee Confidentiality


NLRB Employee ConfidentialityIn 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 James A. Navarro, the NLRB held that Banner Health’s ongoing policy to instruct employees not to discuss ongoing investigations of employee misconduct with other employees was unlawful.  This decision was grounded in the finding that Banner Health did not have business interests that outweighed the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected, concerted activity for mutual aid and protection.

In Banner, the employer’s human resources consultant routinely informed employees when they complained of employee conduct in violation of company policies or law that they should not discuss the matter with other employees while the investigation was ongoing.  Banner Health based its prohibition on its “generalized concern over protecting the integrity of its investigations;” however, the NLRB found Banner Health’s justification unpersuasive and insufficient to override employee rights under Section 7, which states:

Employees

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


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 is reminded that its employees are not Mayer and are not likely to follow in her footsteps.  Rather, employers must remember that there are federal and state laws that require employers to provide protected leave for many of their employees.  Here are five important reminders:

Reminder #1:  “Leaves” require a return to work.

The term “leave” is a bit misleading, as the key is “protected” leave, which is the right to take a leave of absence and  return to his or her job.  Protected leave also means that during the leave, no work is to be done or requested of the employee.

Reminder #2:  Leaves may be doubled or tripled for multiple births. 

In Massachusetts, a full-time, female employee who has worked at least three (3) consecutive months as a full-time employee or has completed the “initial probationary period set by … Keep reading

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Prevent Employer Liability By Properly Investigating Sexual Harassment Claims


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 and Burlington Industries v. Ellerth, enable employers to avoid liability for employee claims of sexual harassment based on a hostile work environment brought under Title VII of the Civil Rights of 1964 if: (1) the employer took reasonable care to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.  Employer policies, training for its supervisors and investigative processes are taken into consideration in determining whether there were sufficient preventive or corrective opportunities provided to employees.  If the conduct, however, results in a tangible employment action such as a demotion or termination, then the Faragher/Ellerth affirmative defense is unavailable to the employer.

Although many states have not adopted this defense, a few states have advanced the law at the state level, at least in theory, to permit employers … Keep reading

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New Fee Disclosure Requirements Affecting Participant-Invested Retirement Plans


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 these new disclosure requirements.  Click here to read her update.… Keep reading

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