Employment

Earlier this year, we highlighted that the Massachusetts Wage Act (the “Wage Act”), while providing powerful protections to Massachusetts workers, does not apply to a profit-sharing arrangement tied to an employer’s overall profits.  Now, another Massachusetts court—this time the District Court’s Appellate Division—has imposed an additional limitation in holding that the Wage Act does not apply to contingent retention bonuses.

It’s that time of year again—California employers need to prepare for a raft of new laws that become effective in the new year.  Below is a brief overview of some of those laws and how employers should prepare for them.  All of the laws discussed below become effective on January 1, 2025. 

The United States and Canada are each other’s largest trade partners with nearly C$3.6 billion/US$2.7 billion worth of goods and services crossing the border each day in 2023.  The United States is the single greatest investor in Canada and Canada was the largest source of foreign direct investment in the United States at the end of 2022.[1]  As commerce in general and employee mobility in particular increases, employers with operations in the United States and Canada may consider a “one-size-fits all” approach to employment, benefits and compensation arrangements. However, despite many similarities, employers should take heed of possible discrepancies across the two countries’ employment landscapes. In this Part II of our series on cross-border hiring, we discuss health benefits and retirement benefits.

The Equal Employment Opportunity Commission (EEOC) has initiated enforcement of the Pregnant Workers Fairness Act (PWFA) following the release of its final rule and interpretative guidance in April 2024

The Sixth Circuit Court of Appeals recently declined to comment on the National Labor Relations Board’s (the “Board”) McLaren Macomb decision which took aim at overbroad non-disparagement and non-disclosure agreements.  

In their webinar, “DEI & Affirmative Action – A Challenge with Consequences,” Member and ESG Co-chair Jen Rubin and Associate Nikki Rivers offered practical solutions for navigating these rulings, which are specifically geared toward in-house counsel and HR professionals.

Effective November 1, 2023, the Massachusetts Department of Family and Medical Leave (the “Department”) required employers to permit an employee, in the employee’s sole discretion, to supplement or “top off” their Massachusetts Paid Family and Medical Leave (“MA PFML”) benefit with any accrued paid leave (e.g., vacation, sick time, or other available paid time off) (together, “PTO”) so the employee could receive 100% of their regular wages during the MA PFML leave. This required employers whose Private Plans under MA PFML did not permit “topping off” to revise their plans accordingly.  We wrote about it here.

On September 13, 2024, the Massachusetts Supreme Judicial Court (the “SJC”) ruled that the Massachusetts Paid Family and Medical Leave Act (the “Act”) does not guarantee the accrual of benefits such as sick leave, vacation leave and length-of-service credit during a period of paid family or medical leave (“PFML”). Instead, the Act mandates only that employees return from leave to the same or equivalent position that they held at the commencement of leave.

As the workplace continues to take a new shape, the distinction between “workplace conduct” and “off duty” conduct continues to fade for many.  After a recent Ninth Circuit ruling, employers must be more vigilant than ever in monitoring and responding to employee social media postings, even when they are personal and “off duty.”

Political conflicts in the workplace will only grow as we near election day, and this means human resources professionals and in house counsel need to hone their conflict resolution skills.  Resolving political conflict in the workplace is a bit more nuanced than resolving ordinary workplace slights, requiring legally compliant de-escalation. We thought a few guidelines – tested against some real-life scenarios – would be a useful campaign stop for those charged with managing these issues.  Here’s a teaser: you learn a company supervisor has just invited the supervisor’s entire team to a weekend rally for [insert any candidate’s name here].  What if anything do you do that doesn’t place you (and the company) squarely within the bullseye of our sharply divided political environment?  

This article provides a checklist of action items for foreign companies making an initial expansion into the US, covering essential topics like choosing a business structure, navigating laws and regulations concerning immigration, employment, and taxes, and securing funding.

A judge in the Northern District of Texas issued an order setting aside the Federal Trade Commission’s rule banning non-compete agreements and ordered that the rule shall not be enforced or otherwise take effect on September 4, 2024.  This much-awaited decision comes after the judge already issued a limited preliminary injunction in the same case in early July as to the named plaintiffs there (discussed here).  Although multiple other courts have recently weighed in on the issue to mixed results, including federal courts in Pennsylvania and Florida (see here), the Texas judge’s ruling has resulted in the first nationwide prohibition on the FTC’s enforcement of the rule.  Accordingly, barring any intervening appellate activity, the FTC’s rule will no longer go into effect on September 4, 2024 (the original effective date), employers will not be required to void employees’ existing non-competes covered by the rule, and employers are no longer required to send employees notices regarding the status of any non-competes. 

On August 14th, a second federal judge, this time out of the Middle District of Florida, temporarily blocked the FTC’s rule banning non-compete agreements, but only as to the named plaintiff in that case.  

Massachusetts has passed into law An Act Relative to Salary Range Transparency (the “Act”), which means that pay transparency and pay data reporting requirements will soon become official.  In advance of the effective dates in 2025, covered businesses must understand and prepare for  new compliance obligations. 

We previously wrote about this Act in its legislation phase here.  In addition, information regarding other jurisdictions requiring wage transparency, such as California, New York, and Washington, are available in our previous articles here and here.

On July 3, 2024, the Federal District Court in the Northern District of Texas in Ryan LLC v. Federal Trade Commission granted a preliminary injunction staying the effective date of the FTC’s non-compete rule and enjoining the FTC from enforcing it against the specific plaintiffs who challenged it (Ryan, LLC, the US Chamber of Commerce, and a few other business groups which were previously permitted to intervene in the lawsuit).  The Court declined to enter a nationwide injunction, and, absent additional legal developments or a voluntary nationwide stay by the FTC, the non-compete rule is still set to go into effect on September 4, 2024 for all other covered employers.  In its decision, the Court indicated that it intends to rule on the merits of the case by August 30, 2024, in advance of the rule’s September 4, 2024 effective date. 

Major changes to PAGA are now official. Most importantly:

• Employees must have experienced each of the alleged violations to have standing to sue;
• Employers can correct inaccuracies on paystubs without penalty; and 
• Employers who take specific steps to prevent Labor Code violations will be able to substantially reduce liability. 

Maryland was one of the first states to implement a pay transparency law in 2020, and now it joins several states in broadening that law to require employers to disclose a wage range for open positions (Washington, D.C.’s pay transparency law, for example, which we wrote about here will become effective on June 30, 2024).  Since 2020, employers in Maryland have been required to provide, when requested by an applicant, the wage range for the position to which the applicant applied. Maryland will now require employers to proactively disclose in their public and internal job postings the wage range for the position. Maryland’s new law will go into effect on October 1, 2024.

On June 18, 2024, Governor Newsom, in collaboration with legislative leaders, unveiled a landmark agreement to reform the Private Attorneys General Act (PAGA). 

Mintz’s Employment Practice will continue to monitor any future developments and legal challenges and remains ready to assist employers with compliance with the PWFA and the EEOC’s final rule.