Massachusetts Policies and Procedures “Checkup”: The Top 10 Areas for Review
Author: Diane M. Saunders (Boston)
Published Date: September 23, 2015
Now that the lazy days of summer are over and fall is here, it’s a good time for Massachusetts employers to perform a “checkup” on their policies and procedures to make sure they are compliant with Massachusetts law before the start of the new year. There have been many changes to the laws governing the employer-employee relationship in Massachusetts recently, particularly in the area of employee leaves of absence. In addition, Massachusetts has a host of other quirky state law requirements that trip up both local and national employers on a frequent basis.
In order to comply with the myriad Massachusetts employment laws, employers must have certain policies and procedures in place. Yet, we frequently discover deficiencies in these areas when we review employee handbooks and conduct policy-and-procedure audits. Employers may be subject to litigation as a result of their failure to have the right policies and procedures in place to ensure they are complying with Massachusetts law. Below are the top 10 areas employers should include in their policies and procedures checkup to ensure they are compliant with Massachusetts law.
1. Parental Leave
As of April 7, 2015, Massachusetts employers are required to provide eight weeks of unpaid parental leave to both men and women, where previously, the law required only that maternity leave be provided. Employers with maternity leave policies need to modify those policies to comply with the new parental leave law. The new law also contains posting requirements.
Effective July 1, 2015, employers in Massachusetts are required to offer sick leave to their employees. Depending on the size of the employer, this leave could be paid leave. The new law requires that employers notify their employees about their rights to sick leave, and contains a posting requirement as well.
4. Pay Practices and Policies
In January of 2015, the Massachusetts Department of Labor Standards issued new minimum wage regulations that contain some significant changes to the prior regulations in the areas of employer notice and recordkeeping requirements, employee uniforms, and deductions for lodging and meals. They also include new language on the topics of working time, on-call time, travel time, and indirect deductions.
5. Tipping and No-Tipping Policies and Procedures
One of the areas that continues to trip up Massachusetts employers is the handling of tips and tip pools, including the proper distribution of tips. A company’s tipping practices and policies are also fertile ground for class action lawsuits.
The Massachusetts Supreme Judicial Court recently established a new customer communication requirement for employers that do not have tipping policies. According to a recent decision, while employers may prohibit tipping in their establishments, they are required to take steps to notify customers of those no-tipping policies in order to prevent change left over by the customers from being treated as tips under the Massachusetts Tips Act. These steps can include signage and staff training.
6. Criminal Background Checks
Like many states, Massachusetts has its own law pertaining to criminal background checks. Among other things, Massachusetts law prohibits employers from asking questions about applicants’ criminal histories on written employment applications. The law also requires certain employers to create written policies that describe their practices in requesting criminal history records. If an employer conducts at least five criminal background investigations each year, it must create and maintain a “written criminal offender record information policy” that, among other things, notifies applicants of potential adverse decisions based on criminal records.
7. Written Information Security Plan (WISP)
Massachusetts was one of the first states to require every business that licenses or owns the personal information of Massachusetts residents to establish a written information security program (WISP) to protect the privacy of that personal information. Massachusetts law defines “personal information” as a Massachusetts resident’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to the resident: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account. With this broad definition, most Massachusetts employers come within the purview of the law and therefore must have a WISP.
8. “Blue Laws”
The Commonwealth of Massachusetts has numerous restrictions on business openings on Sundays and holidays that have been in existence for centuries. Known as “blue laws,” these requirements frequently trip up unknowing Massachusetts employers, especially national employers that only recognize federal holidays. Retail employers especially should make sure they are complying with the quirky Massachusetts blue laws and holiday pay requirements.
9. Sexual Harassment and Equal Employment Opportunity Policies
Massachusetts law requires employers with six or more employees to adopt a written policy against sexual harassment. Among other provisions, these policies must include a notice to employees that sexual harassment in the workplace is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment. The policy should also assert the employer’s commitment to investigate any complaint of sexual harassment.
Massachusetts also has its own specific protected classes that expand the coverage of Massachusetts’s antidiscrimination laws far beyond that of the federal laws. These protected classes have changed over the years as well, e.g., with the addition of gender identity in 2012. Therefore, employers that haven’t reviewed their equal employment opportunity policies in several years would be well advised to ensure that their policies cover all the latest protected classes.
10. Inclement Weather Policies
A properly conceived inclement weather policy can provide some shelter to employers and enable them to stay ahead of the wage and hour and safety issues that arise during a weather crisis or natural disaster. This is particularly important to Massachusetts employers that regularly experience shutdowns in the winter due to severe weather and that are subject to reporting pay requirements under state law.
For more detailed information about many of these and other new Massachusetts developments, please join us for our upcoming Employment Law Briefing on September 24, 2015, from 8:30 a.m. to 10:00 a.m. at the Sheraton Needham Hotel, 100 Cabot Street, Needham, MA, 02494. Ogletree Deakins attorneys will discuss recent key Massachusetts employment law decisions and offer best practices for complying with the Massachusetts Earned Sick Time law.
Diane Saunders is a Shareholder in the Boston office. Ms. Saunders is the Co-Chair of the firm’s Retail Practice Group, and a member of the firm’s Steering Committees for the Class Action Practice Group and Professional Development. Ms. Saunders has been helping employers with their labor and employment issues and business disputes for over 20 years. Her clients include businesses of all sizes and in a variety of industries, as well as non-profit organizations. Ms. Saunders is a...