In an effort to make up for a funding shortfall in the Commonwealth of Massachusetts’ Medicaid program, state policymakers have proposed solutions that include a “play-or-pay” option under which employers who fail to offer major medical coverage, or who offer coverage but have low take-up rates, would be required to pay an additional “employer contribution” to the Commonwealth based on multiple factors and complex computations. Another option would make up the shortfall with an across-the-board increase, similar to a payroll tax increase, in the Employer Medical Assistance Contribution (or “EMAC”), which helps defray Medicaid financing.

This post argues in favor of the latter option. We are of the view that an across-the-board increase in EMAC payments, would be vastly preferable because of its simplicity and ease of administration. The “play-or-pay” option would not only be extremely complicated to comply with and enforce, but, as we explain below, it may be preempted by federal law, i.e., the Employee Retirement Income Security Act of 1974 (ERISA).

Continue Reading Efforts to Shore up MassHealth Should Favor Simplicity and Avoid Potential Conflict with Federal Law

In a previous post we discussed the significant new obligations New York City’s “Freelance Isn’t Free Act” imposes on employers that retain the services of freelance independent contractors. On May 15, these requirements became effective for all freelance contracts executed on or after that date. Some of the law’s key provisions include the requirements that freelance services in excess of $800 be detailed in written contracts and that employers provide payment for freelance services within 30 days, and a prohibition on retaliation against freelancers who exercise their rights under the law.

The New York City Department of Consumer Affairs, Office of Labor Policy Standards has issued some limited initial guidance on the law but, as we discussed in our earlier post, numerous questions remain concerning the law’s practical implications. Please stay tuned to Employment Matters for updates as we continue to monitor this law’s impact on companies that rely on freelance workers.

As expected, the New York State Department of Labor (DOL) recently appealed the decision of the New York Industrial Board of Appeals invalidating the DOL regulations concerning employers who use direct deposit or payroll debit cards to pay employees.  The regulations, which were scheduled to take effect on March 7, 2017, were invalidated in February 2016.  We reported on that decision here.  We will continue to provide updates here as this case moves forward; but for now, the law on this issue remains in flux. Stay tuned!

Join us on Tuesday, May 16 for the final installment of our Entrepreneur Series in partnership with the University of San Diego. In the third session, “Employment & Litigation Avoidance,” panelists, including speakers from The Honor Foundation, Fairway Technologies, Patriot List and Mintz Levin, will discuss the nuts and bolts of workforce management and provide advice for structuring your business to avoid making mistakes that may result in litigation.

For more information and to register, please click here.

As we recently blogged about here, efforts to ban inquiries related to applicants’ salary history have gained momentum across the country. Last Friday, New York City Mayor Bill de Blasio joined this trend by signing into law a bill prohibiting New York City employers from inquiring about prospective employees’ salary history. When it takes effect on October 31, 2017, the law will prohibit employers from communicating “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” “Salary history” includes the applicant’s current or prior wage, benefits or other compensation.

Continue Reading Update on New York City Legislation Limiting Salary History Inquiries

A few months ago, a three-member Third Circuit appellate panel in Acclaim Systems, Inc. v. Infosys, upheld a district court decision, which dismissed tortious interference claims against an employer for engaging with four individuals subject to non-compete agreements, because the employer had no knowledge of the non-competes at issue when it on-boarded them. While the Third Circuit designated this opinion as persuasive and therefore not binding precedent, the decision applies a commonsense approach to a legal claim very familiar to employment law practitioners—tortious interference with contractual relations.

Continue Reading See No Evil, Hear No Evil: Third Circuit finds Employer Not Liable for Tortious Interference Claim Where Employer had No Knowledge of New Hires’ Non-Competes

Earlier this month, in In re Investors Bancorp, Inc. Stockholders Litigation, the Delaware Court of Chancery reiterated its view that placing a meaningful limit on director equity awards to be granted under a stockholder approved equity plan allows the court to determine whether director equity awards are excessive under the more lenient business judgment rule.

Continue Reading Another Reminder that Director Limits set forth in Equity Plans Allow Director Compensation to be Reviewed under the more Lenient Business Judgment Rule

In today’s global economy, the landscape surrounding immigration issues is becoming increasingly complex. Penalties for violations of federal and state immigration rules extend beyond civil fines to more serious consequences, including but not limited to, criminal liability. Now more than ever companies must stay ahead of the latest in immigration law and compliance. In a three-part webinar series, Mintz Levin’s Immigration Practice aims to arm employers with best practices and tools regarding compliance in key areas of immigration law.

Part I: I-9 Compliance and Best Practices — Monday, May 8, 2017
Part II: E-Verify Compliance and Best Practices — Tuesday, May 30, 2017
Part III: Wages, Recordkeeping, and Job Changes – Compliance in Employment-Based Immigration — Thursday, June 22, 2017

Don’t wait, register for all or any combination of webinars in the Immigration Webinar Series starting May 8, 2017!

The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism.  As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.

Continue Reading Second Circuit Holds Termination of Employee Who Attacked Supervisor in Obscene Facebook Post Violates NLRA

Earlier this month, the Supreme Court confirmed that federal appeals courts should apply a deferential standard of review to federal district court determinations regarding the legal sufficiency of EEOC subpoenas.

Continue Reading Supreme Court Confirms Deferential Standard of Review for EEOC Subpoenas