Violation of Sick Time Payout Policy Not a Wage Act Violation

The Massachusetts Wage Act, G.L. c. 149, §148, is in the news again, the subject of another noteworthy decision by the Massachusetts Supreme Judicial Court. Like the decision declining to extend personal liability to Board members and investors for Wage Act violations reported in an earlier post this year, the Court in Mui v. Massachusetts Port Authority again opted for a narrow interpretation of that important statute.

The Wage Act protects an employee’s right to receive earned wages and salary. These rights are enforced through strict treble damages remedies if prompt payment is not made.  The Act also provides for personal liability of upper management of the employer.

The Wage Act also protects accrued, but unused vacation pay due an employee under an oral or written agreement. Once vacation pay has been earned, it must be paid upon termination.  Failure to do so calls forth the treble damages penalty and potential personal liability.

The Wage Act, however, is silent about accrued, but unused sick pay.  MassPort had a policy, common in the public sector but rare in the private sector, whereby an employee was entitled to be paid a percentage of his unused sick time upon termination.  The plaintiff argued that this benefit was the equivalent of earned vacation time.  Because that benefit had been earned through his labors, the plaintiff argued that the important public policy rationale underlying the Wage Act protections should apply.  Treble damages should therefore be imposed to deter employers from depriving an employee of this earned benefit.

The Court refused to read such language into the Wage Act.  Adopting a strict construction of the statute, the Court found “no reason to conclude that the Legislature intended to include sick pay as ‘wages’ under the Wage Act.”  Because the Wage Act did not apply, the Court held that the enhanced remedies of that statute similarly did not apply in this situation.

In my earlier post regarding the Segal v. Genitrix, LLC case, I asked the question as to whether a decision by a Court comprised of five (of seven) justices appointed by Governor Baker signaled a trend toward a narrower reading of employees’ rights.  While it is still too early to tell, this case is one more data point to consider in attempting to read those tea leaves.

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EEOC Releases 2017 Enforcement & Litigation Statistics

The Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with enforcing certain federal employment laws – recently released its fiscal year 2017 Enforcement and Litigation Statistics. In fiscal year 2017, the EEOC resolved 99,109 charges of discrimination.  In doing so, the EEOC made significant headway by reducing its current workload of charges to 61,621 – its lowest level in 10 years.[1]  The EEOC attributes this decrease to its deployment of “new strategies to more efficiently prioritize charges with merit, more quickly resolv[ing] investigations, and improv[ing] the agency’s digital systems.”

The EEOC further announced that employees filed 84,254 charges of workplace discrimination last year – a 7,249 decrease as compared to fiscal year 2016.  Retaliation charges were the most frequently filed, followed by race, disability, sex, and age.  The EEOC specifically noted that it received 6,696 sexual harassment charges, which claims are encompassed in the sex discrimination numbers detailed below.  A complete breakdown of the charges filed is as follows:[2]

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (.2 percent)

Fiscal year 2017 also saw a significant uptick in the amount of private lawsuits the EEOC has filed as compared to 2016. Specifically, in 2017, EEOC lawyers filed 184 discrimination lawsuits, as compared to the 86 lawsuits that were filed in fiscal year 2016.

[1]   By way of reference, in fiscal year 2016, the EEOC had 73,508 charges pending.

[2]   When added together, the percentages total more the 100% because some charges allege multiple claims.

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IRS Issues New Withholding Tables

On January 11, 2018, the Internal Revenue Service (“IRS”) issued Notice 1036, Early Release Copies of the 2018 Percentage Method Tables for Income Tax Withholding (“Notice 1036”) and published IRS Withholding Tables Frequently Asked Questions.

Notice 1036 sets forth the income tax withholding tables applicable for 2018 (the “2018 Withholding Tables”), which show employers how much federal income tax to withhold from employee paychecks, given each employee’s wages, marital status, and the number of withholding allowances claimed. The new 2018 Withholding Tables were made necessary by the 2017 Tax Act’s changes to tax rates and tax brackets, increase of the standard deduction, and repeal of personal exemptions.

Employers must begin using the 2018 Withholding Tables by February 15, 2018.

The 2018 Withholding Tables were designed to work with existing Form W-4, Employee’s Withholding Allowance Certificate.  Therefore, employers do not need to require employees to execute new Forms W-4 at this time.  However, the IRS is working to revise the Form W-4 and its withholding calculator and expects to issue both “soon.”

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Sexual Harassment Settlements as Tax Policy: Non-Deductibility of Payments and Legal Expenses

The Tax Cuts and Job Act passed by Congress on December 22, 2017, includes a surprising provision that may have a significant impact on settlements of sexual harassment and other claims. Under Section 13307 of that Act, the Internal Revenue Code provision relative to the deductibility of expenses in carrying on a trade or business was amended to read:

Payments Related to Sexual Harassment and Sexual Abuse – No deduction shall be allowed under this chapter for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.

The amendment (which becomes Section 162(q) in the tax code) takes effect immediately.

What this now means is that the standard practice of including a confidentiality provision in employment settlement agreements must be undertaken with caution or not at all. The impact of the tax code amendment can arise in two ways.

Settlement of Sexual Harassment Claims.  First, in a case that directly involves a sexual harassment (or sexual abuse) claim, the inclusion of a provision by which the claimant agrees to keep the existence and terms of the settlement private and confidential will mean that neither the settlement payment amount nor any attorney’s fees related to that settlement may be taken as deductible business expenses.  In such case, the employer should make the determination as to whether the confidentiality of the settlement is of sufficient importance to forego the deductions.

Blanket Releases of all Employment Related Claims.  Second, even in a case in which no sexual harassment (or sexual abuse) claim is made, the amendment can be a trap for the unwary.  If the settlement agreement contains a nondisclosure provision, but is otherwise not carefully drafted, it can potentially have the same ramification.

In virtually every settlement of a claim made by a present or former employee (and even in the documentation surrounding severance payments where no claims have been made), it has been common practice to include a broad release of any and all claims arising out of the employment relationship. In some iterations, the language contains not only a broad release, but also the specific delineation of every possible type of employment-related claim (e.g., release of claims arising under any federal, state, or local law relating to employment, discrimination, retaliation, harassment, breach of contract, fraud, identity theft, tortious interference, emotional distress, or any common law claim).  Certainly the latter and possibly even the former approach may also result in the loss of the deductions.

Express Disclaimer and Attendant Risk.  In such cases, one approach that should preserve the deductions would be to expressly disclaim that the release applies to claims of sexual harassment or sexual abuse.  As can often be the case, fixing one problem may create a different one.  While such a disclaimer would preserve the deductibility of the settlement payment and legal expenses, it could expose the employer to a subsequent claim of sexual harassment.

Exclusion by Omission and Attendant Risk.  Another possible approach would be to use only the broad form release or omit “sexual harassment,” “sexual abuse,” “harassment,” “abuse” or similar words from the litany of specific types of claims.  If the Internal Revenue Service takes an aggressive approach, however, either form of release (broad or specific) could potentially jeopardize the employer’s deductibility of the settlement payment amount and attorney’s fees.


Questions, Questions and More Questions. Will the IRS take an aggressive approach to this exclusion?  How will it interpret the phrase “any settlement or payment related to sexual harassment or sexual abuse?”  Will this provision apply to agreements required in return for the payment of severance?  Must a claim first be made by the employee?  If so, must that claim be for sexual harassment or sexual abuse?  How will the phrase “related to” be interpreted in practice?  Will “nondisclosure” be specific to the terms of the settlement?  Will a non-disparagement provision prohibiting the disclosure of negative statements about the employer also trigger the non-deductibility penalty?

Is Clarification Forthcoming?  By the enactment of the Tax Cuts and Job Act, Congress has dramatically increased the workload of the IRS.  Any clarification from that agency on how this relatively obscure provision will be interpreted is not likely to be coming soon.  Employers should therefore discuss the risks and potential ramifications with counsel in deciding the form of their concluding agreements.

The recent tax bill has certainly stirred considerable debate about its economic merits. It is probably safe to say, however, that not many of us anticipated that the current revelations about sexual harassment would also become part of that tax bill’s landscape.


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A Bridge Too Far – Individual Liability for Wage Act Violations

The Massachusetts Wage Act, G.L. c. 149, §148, has often been used as a particularly draconian weapon by employees who believed they have not been properly paid. In that arsenal, one of the most feared is the threat of personal liability against management personnel.  A recent decision by the Massachusetts Supreme Judicial Court, however, may allay some of those fears.

Historically, two major aspects of the Wage Act set it apart from other remedial employment statutes. First, treble damages are mandatory for any Wage Act violation regardless of an employer’s honest mistake or good faith.  Second, the Wage Act also provides for personal liability for certain officers of the employer, even if the employer is a corporation or limited liability company.  Specifically, the President and Treasurer of a corporation and any officers or agents having the management of such corporation can be held personally liable for Wage Act violations.

The reach of personal liability was addressed by the Court in Segal v. Genitrix, LLC, decided on December 28, 2017.  In that case, the plaintiff was employed by the defendant start-up biotech company, Genitrix.  In an unfortunately far too common story, Genitrix ran out of cash and ceased operations, leaving the plaintiff with two years of unpaid wages.

Recognizing that there was no blood left in the stone, the plaintiff sued two members of the company’s Board of Directors individually. The plaintiff’s theory was that the Directors voted to continue operations even though the plaintiff was not being paid.  The plaintiff also sued an investor in the company who had provided funds for the continued operations, but had conditioned his investment on those funds only being used for specific expenses, which did not include paying the plaintiff’s wages.

The case went to trial before a jury in Suffolk County. The jury found for the plaintiff and a judgment entered against the defendants individually, including punitive damages, totaling over $1.7 million.  Needless to say, the defendants were not pleased with this outcome and appealed.

In a somewhat surprising decision, the Supreme Judicial Court found on appeal that the Directors were not personally liable and reversed the jury’s finding. Critical to this reversal, the Court found that the Directors were neither corporate officers nor “agents having the management of the corporation.”  It wasn’t enough that the Directors held those positions nor even that they and the investor had actively participated in the decision-making that resulted in the non-payment of the wages to the plaintiff.

Despite that involvement, the Court found that they did not exercise the type of broader management powers that would permit individual liability. Specifically, those powers must be similar to those performed by a corporate president or treasurer, particularly in regard to the control of finances or the payment of wages.  Without that, the evidence was insufficient to find the Directors and the investor individually liable.

Does this decision signal a narrowing of employee’s rights? Or is it simply an isolated case based on its unique facts from which nothing more broadly can be read?

In this latter regard, the plaintiff was the company’s president and the one who had elected to keep the company operating. He also made the decision to forego taking his salary for that extended period, knowing full well that the company’s finances were declining precipitously.  Coupled with the similar financial bath that the individual defendants took on their respective investments, perhaps the Court did not feel it could add insult to injury by rewarding the plaintiff who had literally made his own bed.

Without rejecting those unique facts, it is hard not to view this decision as a significant one from a newly reconstituted Supreme Judicial Court. Since his election in 2014, Governor Baker has appointed five of the seven justices of the Court.  Could this decision portend an emerging direction in the employment arena?  Only time … and future cases walking the boundary between employee and employer rights … will provide us with an answer to this question.

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Employees May Now File Discrimination Complaints Online with the EEOC

On November 1st, the Equal Employment Opportunity Commission (“EEOC”) launched an online system that allows employees nationwide to inquire about potential discrimination and electronically sign and file discrimination charges against their employers.  Following initial filing, the online system will permit complainants to update information relating to their charge of discrimination, including uploading documents in support of the charge.

The EEOC’s launching of this system follows testing of the public portal in five cities over the past six months.  The EEOC hopes the new online system will allow for more efficient handling of charges.

This latest tool, coupled with the prevalence of news stories related to the Hollywood sexual harassment and sexual assault scandals, will undoubtedly result in an uptick in the filing of discrimination charges.  As a result, employers are well advised to conduct refresher sexual harassment and discrimination prevention training, particularly for supervisors and managers.  Such training has proven useful in uncovering and effectively remediating concerns well prior to an employee filing a charge of discrimination or harassment, thereby enabling the company to avoid extensive legal defense fees.

If you would like to schedule a training session, please contact any one of the attorneys or paralegals within Mirick O’Connell’s Labor, Employment & Employee Benefits Group.

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Employment Law Ballot Initiatives May Go To Massachusetts Voters

Massachusetts voters may soon get another chance to significantly impact employment relationships in Massachusetts through the ballot box, just as they did in 2015 with their approval of the Earned Sick Time law.  This past week, the Attorney General of Massachusetts certified ballot initiatives concerning minimum wage, paid family and medical leave, and nurse staffing levels, as meeting constitutional requirements for the ballot initiative process. The Attorney General’s certification clears the way for sponsors of the initiatives to proceed to the next step in the process in having the proposed laws placed on the ballot in November 2018.

Proponents of the proposed laws must now gather and file 64,750 signatures of registered voters by December 6, 2017 for each initiative. Once the signatures are filed, the proposals will be sent to the Legislature to enact by May 2, 2018.  If the Legislature does not enact the proposals, the proponents must gather an additional 10,792 signatures by July 2018 in order to have them placed on the November 2018 ballot.

The following is a brief summary of each of the certified proposals:

Minimum Wage Increase to $15

Raise Up Massachusetts, a group that describes itself as, “a grassroots coalition of community organizations, religious groups, and labor unions committed to building an economy that works for all of us,” filed the ballot question that would require raising the minimum wage to $15 per hour by 2022.  Under the proposal, the current $11.00 per hour minimum wage would be raised to $12.00 in 2019; $13.00 in 2020; $14.00 in 2021; and $15.00 in 2022.  The proposed law would also raise the minimum cash wage that must be paid to tipped employees, which is $3.75 per hour as of January 1, 2017, to $5.05 in 2019; $6.35 in 2020; $7.64 in 2021; and $9.00 in 2022.

Paid Family and Medical Leave

Raise Up Massachusetts is also the sponsor of the ballot question that would create a statewide paid family and medical leave insurance program.  Under the proposal, covered workers could take family leave to care for a child after the child’s birth, adoption, or placement in foster care; to care for a seriously ill family member; or to address needs arising from a family member’s active duty military service.  Workers could also take paid medical leave to address their own medical conditions.

Covered workers taking family or medical leave would receive 90% of their average weekly earnings, up to $1,000 per week, while on leave.  Beginning January 1, 2021, the weekly cap on benefits could be adjusted annually based on the Consumer Price Index published by the United States Department of Labor for the Boston metropolitan area.

The proposal would allow covered workers to take up to 16 weeks of paid family leave or 26 weeks of paid medical leave.  A covered worker could not take more than a total of 26 weeks of both types of leave in one year.  Paid leave could also be taken intermittently and would run concurrently with leave taken under the state Parental Leave Act or the federal Family and Medical Leave Act.

In order to pay for the leave benefits, the proposed law would create a trust fund into which employers would pay 0.63% of each employee’s annual wages, up to half of which could be deducted from employee wages.  Beginning October 1, 2021, the contribution rate would be reviewed and adjusted annually to ensure funding of at least 140% of the amounts paid out during the previous year.

The proposed law would cover both private and public employees, except that municipal employees would be covered only if the proposed law were accepted by vote of the city or town.

Nurse Staffing Levels

The Massachusetts Nurses Association sponsored the ballot initiative titled, “Petition for a Law Relative to Patient Safety and Hospital Transparency.”  The proposed law would limit how many patients could be assigned to each registered nurse in Massachusetts hospitals and other health care facilities based upon the schedule set forth in the law. For example, under the law in emergency departments, there could only be one critical or intensive care patient per nurse (or 2 if the nurse has assessed each patient’s condition as stable); 2 urgent non-stable patients per nurse; 3 urgent stable patients per nurse; or 5 non-urgent stable patients per nurse.  The proposal further dictates nurse-patient ratios for other departments within the healthcare facility.

If each of the above proposed laws were approved by the Legislature or at the ballot box, they would have a significant impact on Massachusetts employers.  As such, employers would be well advised to monitor the proposed laws progress through the ballot initiative process.

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