CLIENT ALERT - MA and Federal Law Review

September 2017

The following information is provided to enable Massachusetts employers to comply with those Massachusetts and Federal laws that are described below. Some of these laws will be in force in the near future, others are of long standing but are often misunderstood. 

FEDERAL IMMIGRATION FORM I-9

A recent change in Form I-9 and the regulations regarding Form I-9 has been published by USCIS. Employers must utilize the newly published Form and abide by the revised regulations by September 18, 2017.

Employers must receive a completed Section 1 of the Form I-9 on the employee's first workday. Good practice would be to require the completion of this form prior to the employee's beginning to work on that first day. The presentation of documents and completion of the remainder of the form must be accomplished by the end of the employee's third workday. If the new employee will be working for 3 days or less, the employee and employer must complete the entire I-9 on day one. Please click here to access the new form.

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MASSACHUSETTS PREGNANT WORKERS FAIRNESS ACT

Massachusetts Pregnant Workers Fairness Act is effective as of April 1, 2018.

This Act prohibits an employer from:
* Discriminating against pregnant employees or applicants for employment.
* Taking adverse action against an employee who is requesting or using a reasonable accommodation because of a pregnancy related condition.
* Requiring a pregnant employee to accept an accommodation she does not want, if the accommodation is not necessary for her to perform essential functions of her job.

Of course, the prohibition against failing to hire an employee because of her pregnancy or a pregnancy-related condition remains in effect. Generally, the Americans with Disabilities Act regulations should be applied, i.e., engage in an interactive discussion of capabilities and accommodations, and attempt to reasonably accommodate the employee up to the point that the accommodation results in an undue hardship for the employer.
As with the ADA, employers may require documentation of the disability from a health care provider. Excepted from that requirement are those accommodations that regularly apply to pregnancy, e. g., need for more frequent breaks, opportunity to sit, limits on lifting over 20 pounds and private space (not in a bathroom) for expressing breast milk.

Employers must provide written notice to pregnant employees of their rights. This may be accomplished through the Employee Handbook, posting on bulletin boards, or the publishing of a special bulletin or pamphlet which is distributed to employees.

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MASSACHUSETTS PAY EQUITY LAW

Massachusetts Pay Equity Law will go into effect on July 1, 2018. The Act provides that employers:

1. May not inquire about an applicants' salary or benefits history before extending an offer of employment to the applicant which offer contains the terms of both wage and benefit compensation.
2. May not prohibit hourly employees from talking to co-workers about their wages or benefits. The National Labor Relations Act has had such a prohibition for many years.
3. Offer equal pay to men and women for "comparable work." Comparable work is work requiring a substantially similar skill set, effort, and responsibility performed in similar working conditions.
The Act's purpose is to insure that women are paid based on market rates not salary history. Pay differences, however, may exist if they are based on matters such as shift differentials, bona fide seniority systems (not impacted by pregnancy, medical or parental leave), bona fide merit systems, productivity, geography, responsibilities, hazards, education, experience, or travel.
There is an Affirmative Defense for employers who (prior to the institution of legal action against the employer) 1) have completed a good faith evaluation of their pay practices which is reasonable in detail and scope and 2) can demonstrate reasonable progress in eliminating gender based compensation bias. Violations may result in liability including double damages and fines. Employers who have undertaken good faith evaluations and have shown some progress but whose evaluations are not reasonable in detail and scope would be liable only for unpaid wages.

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FEDERAL EEO-1

In 2016 the Department of Labor published new regulations requiring private employers with 100 or more employees to include data on employee pay and hours on the EEO-1 Report due on March 31, 2018. The Office of Management and Budget has "paused" such reporting stating that the collection of this material is "unnecessarily burdensome."

The regulation specifically requires that employers aggregate W-2 income broken down by sex, race, ethnicity and job group to include it with the EEO-1 Report. The wage data is meant to enable the EEOC to ascertain pay disparities indicative of unlawful discrimination.

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OLDER LAWS REQUIRING REVIEW:

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MASSACHUSETTS PARENTAL LEAVE ACT

Massachusetts Parental Leave Act requires that employers with 20 or more employees provide 8 weeks of leave to eligible men and women for the purpose of giving birth or adopting a child. The leave may be paid or unpaid. To be eligible, an employee must have worked for the employer through the employer's probationary period of not more than 3 months (or, if no probationary period, 3 months) and must have notified the employer of an intent to take the leave and return following the leave. The leave is for the "purpose of giving birth". This is not the same as an Americans with Disabilities Act leave. An employee who is disabled as the result of a pregnancy who will not be giving birth during the requested leave should, instead, be considered for leave under the Americans with Disabilities Act and/or FMLA. Employees on Massachusetts Parental Leave Act leave may also be eligible for FMLA leave. Please click here to access the text of Section 105D.

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FAIR CREDIT REPORTING ACT

Fair Credit Reporting Act addresses requirements related to the use of consumer reports/background checks. Significant penalties may be imposed by federal courts on an employer that includes a liability waiver in a FCRA Authorization. The FCRA requires the following of employers:

Prior to seeking a consumer or background report on an individual applicant or employee-
* Request that the individual complete and sign an Authorization form that is separate from other employment paperwork as well as separate from the Employment Application. The Authorization must deal only with the FCRA. Do not include a liability waiver in the Authorization document. Please click here to access a sample Authorization Form.
* Provide notice to the individual that no adverse actions will be taken resulting from information received pursuant to the background check until the individual has been provided with a copy of the consumer report and the individual has received a written description of his/her rights under the FCRA.
* Do not take any adverse action based on the consumer report until the individual has received a copy of the report and has had the opportunity to respond.

If you have any questions on any of the above, please do not hesitate to contact us.

Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
617-542-6789 phone
617-556-8989 fax

This client alert, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Stoneman, Chandler & Miller LLP and its attorneys. This client alert is intended for general information purposes only and you should consult a Stoneman, Chandler & Miller LLP attorney concerning any specific legal questions you may have.

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