In a series of blog posts going back to last August, we reported on certain amendments to the Massachusetts Employer Medical Assistance Contribution (EMAC) rules. As we previously explained, the EMAC contributions are required of employers with more than five employees in Massachusetts. Last year’s amendments increased the basic EMAC annual fee to $77 per employee from $51 per employee and added a new, supplemental penalty of up to $750 for each non-disabled worker who receives health insurance coverage through MassHealth or who opts out of employer-provided coverage and instead receives subsidized coverage from the Massachusetts Health Connector (i.e., the Commonwealth’s Affordable Care Act marketplace). While the EMAC penalties seemed relatively innocuous when viewed in isolation, the actual amounts of the supplemental payments turned out in many cases to be substantial. Small employers are being particularly hard hit.

Continue Reading Massachusetts Legislature Proposes Limited Relief for Employer Medical Assistance Contribution (EMAC) Supplemental Payments

Written by Brandon Willenberg

Employers have recently enjoyed some victories in the U.S. Supreme Court and in the California Supreme Court regarding the use of class/collective action waivers in employment arbitration agreements (e.g. Italian Colors and Iskanian). Class/collective action waivers in arbitration agreements generally prohibit the employee from forming or joining a class or collective action litigation or arbitration addressing employment-related claims against an employer, including, for example, violation of the Fair Labor Standards Act. This is an effective tool for employers to limit exposure and liability in wage/hour class and collective action litigation. So, if an employer can utilize a class/collective action waiver in an employment arbitration agreement then it makes sense that the employer can include one in a severance agreement just the same, right? Wrong said the Sixth Circuit, in Killion v. KeHE Distributors, Inc.

Continue Reading Is a FLSA Collective Action Waiver by Itself in a Severance Agreement Enforceable? Sixth Circuit Says “No.”

By George Patterson

In a previous post we discussed Foster v. Mountain Coal Company LLC, the District of Colorado’s decision invalidating a waiver of an employee’s claims against his employer under the Age Discrimination in Employment Act (ADEA) after the employee was terminated in connection with a reduction in force (RIF). The court concluded that under the Older Workers’ Benefit Protection Act (OWBPA), the waiver the employee signed did not adequately “advise” him of his right to consult with an attorney prior to executing a severance agreement because the waiver merely contained passive language in the past tense stating that the employee had been given an “opportunity … for consultation with an attorney.” We now alert you to the Court’s reversal of that decision in response to the employer’s motion for reconsideration.

Continue Reading Colorado Federal Court Walks Back Rejection of ADEA Waiver in RIF Case

By George Patterson

A Federal court in Colorado recently permitted a former employee to advance an age discrimination claim despite his prior execution of a severance and release agreement after his employment ended in connection with a reduction in force. The Court in Foster v. Mountain Coal Company, LLC invalidated the release of the age discrimination claim because it did not fully satisfy the Older Workers’ Benefit Protection Act’s “knowing and voluntary” requirement; in particular, it did not properly “advise” the employee to consult with an attorney before executing the agreement.

Continue Reading Waivers of Age Discrimination Claims in Reduction in Force Cases Continue to Face Intense Scrutiny

Written by Brandon Willenberg

The enforceability of employment-related arbitration agreements has been a hot-button issue these past couple of years.  The latest fight, federal vs. California law, has just played out in the California Supreme Court’s very recent (and lengthy) decision in Sonic-Calabasas A, Inc. v. Moreno, (“Sonic II”) where the Court addressed the enforceability of arbitration agreements under California law in light of the U.S. Supreme Court’s recent decision in AT&T Mobility, LLC v. Concepcion (“Concepcion”).  So did the California Supreme Court give the U.S. Supreme Court the “thumbs-up”? – well, kind of.

Continue Reading The California Supreme Court Tackles The U.S. Supreme Court’s Decision in Concepcion – Still Finds Wiggle Room For California Courts, But Holds Administrative Wage Claims Are Arbitrable