Rhode Island Employees Will Have Paid Sick Leave Starting This Summer

Rhode Island Governor Gina Raimondo recently signed into law the Healthy and Safe Families and Workplaces Actwhich goes into effect on July 1, 2018 (the “Act”).  Rhode Island joins an increasing number of cities and states, including Massachusetts and Connecticut, that have enacted paid sick leave laws.

Under the Act, most employers with 18 or more employees in Rhode Island must allow employees to accrue and use paid time off for:

  • An employee’s own illness, injury, or health condition or preventive medical care;
  • Care of an employee’s family member with an illness, injury, or health condition or the family member’s preventive care;
  • Closure of an employee’s place of work or an employee’s child’s school or place of care by a public health official due to a public health emergency; or
  • Leave needed when the employee or employee’s family member is a victim of domestic violence, sexual assault, or stalking.

For purposes of the Act, “family member” is defined broadly to include an employee’s child, parent, spouse, mother-in-law, father-in-law, grandparents, grandchildren, domestic partner, sibling, member of the employee’s household, or care recipient (a person for whom the employee is responsible for providing health or safety related care).

Some employers (such as the state and certain employers in the construction industry) and employees (such as interns, outside sales employees, and licensed nurses employed by a health care facility on a per diem basis) are exempt from the Act.

Eligible employees can accrue and use paid leave under the Act at a rate of one hour of leave for every 35 hours worked, up to a maximum of 24 hours of time off in 2018.  The maximum annual accrual and use will increase to 32 hours in 2019 and 40 hours in 2020 and every year thereafter.  As an alternative to tracking accrual, employers may choose to comply with the Act by providing a lump sum of paid time off on a monthly or annual basis or an unlimited time off policy.  An eligible employee will begin to accrue time off under the Act on the employee’s first day of work or July 1, 2018, whichever is later.

Also, employers with less than 18 employees in Rhode Island are required to provide employees with unpaid leave in the same manner as is described above.

We encourage businesses with employees in Rhode Island to review time off policies to ensure compliance with the Act, as well as other state and federal leave laws.

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Shannon Lynch, the author of this alert, is an employment law partner at Beck Reed Riden LLP.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Considers Paid Family and Medical Leave

State houseThis week, the Massachusetts legislature’s Joint Committee on Labor and Workforce Development is conducting hearings on Paid Family and Medical Leave legislation (HB 2172 and SB 1048).

The goal of the legislation is to protect workers from losing their jobs if they take time off because of their own serious illness or injury, to care for a family member who is seriously ill or injured, or to care for a baby. According to a version of the legislation pending in the Massachusetts House, the maximum weekly benefit would be set at $650, and the Senate version would set a $1,000 weekly cap. Both versions of the bill require the payments to be financed at least in part by employer contributions. The legislation would require employers to offer employees up to 26 weeks for temporary disability leave and 16 weeks for family care.

Opponents of the legislation argue that it would be too expensive, overly bureaucratic, and that a funding mechanism may be unconstitutional.

In an Op-Ed appearing in the Fall River Herald News, the Bristol County Chamber of Commerce expresses concern that the Massachusetts legislation would rely on an untested, employer-funded model for this employee benefit:

While four other states, which include Rhode Island and New Jersey, have enacted medical and family leave provisions, their programs are strictly funded by employee payroll deductions. No state in the United States mandates that employers must pay for employee medical and family time off. Massachusetts would be the only state to place such an incredible financial burden on its own businesses.

The prospects for this legislation are uncertain. A similar paid family and medical leave bill passed the Massachusetts Senate last year, however, the bill failed to advance to the Governor’s desk. Senate President Stan Rosenberg has reportedly made passage of the legislation by both sides of the legislature a priority for the current legislative session.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

DOL Issues Revised Overtime Regulations

The moment employers have anxiously anticipated for months is here. This morning (May 18, 2016), President Obama and United States Department of Labor (DOL) Secretary Tom Perez announced the publication of the DOL’s long-awaited revised federal overtime regulations. The DOL has highlighted the following key aspects of the revised regulations:

  1. The standard salary level for the Executive, Administrative, and Professional exemptions will increase from $23,660 to $47,476 per year. While this new level is lower than the originally anticipated $50,440, the increase nonetheless effectively doubles the previous salary threshold and will have a significant impact on employers’ exempt workforces. Indeed, the DOL estimates that the new salary level will make 4.2 million employees newly eligible for overtime pay.
  1. Employers will be able to satisfy up to 10% of the standard salary level through nondiscretionary bonuses and incentive payments including commissions, as long as such payments are made in accordance with the new regulations. Many employers have commissioned workforces and this provision could help them to cushion, albeit minimally, the impact of the increased salary level.
  1. The total annual compensation required for an employee to be considered exempt as a Highly Compensated Employee, will increase from $100,000 to $134,004.
  1. The revised regulations also contain a mechanism by which these salary and compensation levels will automatically update every three years beginning on January 1, 2020.
  1. Although many sources had anticipated that employers would be provided with only a 60 or 90-day compliance period, the effective date is not until December 1, 2016. This effective date provides employers with significantly more time than originally expected to bring their pay practices into compliance.

Given these changes, employers have approximately six months to analyze their exempt workforces and determine how best to comply with the new revisions. Initial guidance for employers from the DOL is available here. This will undoubtedly be a labor-intensive process that will require significant changes for many employers. We at BRR look forward to working with you on these issues in the coming months.

Thanks to my colleagues Nicole Daly and Shannon Lynch for putting this post together!

DOL Proposes Revisions to White-Collar Overtime Exemptions

The U.S. Department of Labor (the “DOL”) has issued a “Notice of Proposed Rulemaking” (“NPRM”) aimed at increasing the number of white-collar employees eligible for minimum wage and overtime pay protections under the Fair Labor Standards Act (the “FLSA”).

The FLSA guarantees a minimum wage and overtime pay at a rate of not less than one and one-half times the employee’s regular rate for hours worked over 40 in a work week unless an employee falls under a statutory exemption. For an employee to be classified under one of the so-called “white-collar exemptions” (executive, administrative, or professional), the employee must meet certain minimum tests related to his or her primary job duties and be paid on a salary basis at not less than a specified minimum amount.

Under the NPRM, the salary threshold for a full-time, salaried employee to be classified as exempt from the overtime laws would be increased from $455 per week (or $23,660 annually) to $970 per week (or $50,440 annually). These proposed figures would set the standard salary level at the 40th percentile of weekly earnings for full-time, salaried employees. Additionally, the DOL proposes to increase the annual salary requirement for the highly compensated employee exemption (which applies to employees who customarily perform one or more of the exempt duties of an executive, administrative, or professional employee) from $100,000 annually to $122,148 annually. The DOL has updated the salary-threshold requirements seven times since 1938, most recently in 2004. The NPRM also creates a mechanism to automatically update the salary-threshold levels annually in the future.

The DOL predicts that, if finalized, the NPRM will extend overtime coverage to an additional five million Americans. The NPRM is subject to a 60-day public comment period. Subsequently, the DOL will issue a Final Rule, which will be reviewed, before publication. While a Final Rule is not expected before 2016, it is not too soon for businesses to start thinking about how to address these likely changes in their policies and practices.

A fact sheet describing the proposed rule may be found on the Department of Labor Website or here. http://www.dol.gov/whd/overtime/NPRM2015/factsheet.htm. A complete copy of the proposed rules is available here. http://www.dol.gov/whd/overtime/NPRM2015/OT-NPRM.pdf

Massachusetts AG Issues Long-Awaited Final Earned Sick Time Regulations

Last November, Massachusetts voters approved Ballot Question Four, which amends the Massachusetts Wage Act and creates new mandatory sick time for Massachusetts employees beginning July 1, 2015. Under the new law, private employers must allow their Massachusetts employees to earn and use up to 40 hours of sick time per calendar year. Whether the sick leave is paid or unpaid depends on the size of the employer. Employers with 11 or more employees must provide paid sick leave, while employers with ten or fewer employees must provide unpaid sick leave.

Final Earned Sick Time Regulations

On June 19, 2015, the Massachusetts Attorney General issued the long-awaited Final Earned Sick Time Regulations, 940 CMR 33.00 et seq., which can be accessed here.

The Final Regulations contain a number of revisions and clarifications of earlier proposed versions, including:

  • Employers may require employees to use earned paid sick time to receive pay when taking other authorized leave that would otherwise be unpaid, such as FMLA leave or Massachusetts Parental Leave.
  • Employees can use earned sick time for travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
  • Further clarification on breaks in service relative to the use of accrued sick time and vesting periods.
  • The circumstances under which an employer can require documentation in support of an employee’s use of earned sick time have been expanded. For example, an employer can require documentation if an employee takes earned sick time within 2 weeks of the employee’s last day of employment.
  • Employees must submit requested documentation related to the use of earned sick time within 7 days after the earned sick time is taken, unless they demonstrate good cause for not doing so. (The earlier proposed regulations had a 30-day timeframe for producing documentation.)
  • If an employee fails to provide the required documentation related to the use of earned sick time without reasonable justification, the employer may recoup the earned sick time paid to the employee from future pay, as an overpayment. However, employers must put employees on notice of this practice.

Safe Harbor for Employees with Existing Paid Time Off Policies

The Attorney General has created a “Safe Harbor” for qualifying employers to help them comply with the new law. Under the Safe Harbor provision, employers with a paid time-off or sick leave policy that has been in existence since at least May 1, 2015 do not have to implement a new sick time policy, provided the existing policy provides for sick time comparable to that required under the new law. Employers that qualify under the Safe Harbor have until January 1, 2016 to bring their PTO/sick time policies into full compliance with the earned sick time law. In addition to the Final Regulations, information about the Safe Harbor can be found here.

Notice Obligations

On or before July 1, employers are required to post the Attorney General’s notice regarding Earned Sick Time in a conspicuous place accessible to employees in every location where eligible employees work. The required notice can be accessed here. Employers are also required to provide a hard copy or electronic copy of this notice to all eligible employees or include the employer’s earned sick time policy in any employee handbook.

Next Steps

  1. No later than July 1, 2015, employers should determine whether they can rely on the Safe Harbor through December 31, 2015, or whether they need to update their paid time off policies. Employers that qualify for the Safe Harbor need to ensure that their paid time off policies are fully compliant with the Earned Sick Time Law by January 1, 2016.
  1. No later than July 1, 2015, employers should post the AG’s workplace notice and either distribute copies of the notice or include their relevant paid time off policies in their employee handbook.
  1. Employers need to ensure that their revised paid time off policies are consistent with their related policies including, but not limited to, attendance, tardiness, and call-in procedures.

The attorneys at Beck Reed Riden are available to assist businesses in complying with the new Earned Sick Time Law.

Authored by Shannon Lynch.

DOL Issues Updated FMLA Forms

The U.S. Department of Labor (the “DOL”) recently issued new forms for use when an employee requests or has need for leave under the Family and Medical Leave Act (the “FMLA”). Employers can access the forms on the DOL website or at the links below.

The most significant change to the FMLA forms is the inclusion of safe-harbor language in the requests for medical information to ensure compliance with the restrictions under the Genetic Information Nondiscrimination Act of 2008. The new safe-harbor language is as follows, “[d]o not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”

Employers are not required to use the DOL forms as long as they do not request more information than allowed under the FMLA regulations. However, many employers prefer the convenience of the DOL standard forms, and now those employers will not have the additional burden of adding GINA safe-harbor language to DOL forms and/or cover letters.

Massachusetts Attorney General Issues Advisory On New Domestic Violence Leave Law

On August 8, 2014, Massachusetts Governor Deval Patrick signed into law a statute requiring employers with 50 or more employees to allow employees to take up to 15 days of leave within a 12-month period when an employee or an employee’s family member is the victim of domestic abuse. (We described the new law in our earlier post New Massachusetts Law Mandates Employee Leave For Victims Of Domestic Abuse.) The Massachusetts Office of the Attorney General recently issued advisory materials to aid Massachusetts businesses in complying with the new law (the “Advisory”). Among other things, the Advisory clarifies two issues – the definition of employee and the employer’s notice requirement under the new law.

While the domestic violence leave law applies to businesses “who employ 50 or more employees,” the Advisory clarifies that only employees working in Massachusetts count towards the 50-employee threshold. Therefore, in determining whether an employer is subject to the new law, a company should count the total number of employees (including full-time, part-time, and seasonal) it has working in Massachusetts; employees working in other states don’t need to be counted.

The Advisory also makes clear that while an employer must notify its employees of their rights and responsibilities under the law, there is no specified manner for such notice. The Advisory suggests proper notice may include an employee handbook policy; a memorandum to employees; a letter or email to employees; or a physical posting of the notice or policy in a conspicuous place. Since an employer may decide whether the leave will be paid or unpaid and whether an employee must first exhaust other paid time-off before becoming eligible for the domestic violence leave, employers should address these issues in any policy or notification.

The end of the calendar year is the perfect time for businesses to think about updating their employee handbooks and policies, particularly given the recent developments in Massachusetts leave laws. The attorneys at Beck Reed Riden are available to assist businesses with updating their relevant policies to ensure compliance with federal and Massachusetts law in the new year.