Navigating Pay Transparency Laws: What Employers Need to Know

Over the last several years, in an effort to close the gender pay gap, several states and localities across the country have enacted pay transparency laws that, generally, require employers of certain sizes with employees in those locations to disclose salary and hourly wage ranges on job advertisements/postings and, in certain circumstances, to current employees seeking transfers or promotions.

How Prevalent Are Pay Transparency Laws?

As of this writing, pay transparency laws have been enacted in Colorado (the first state to do so), Maryland, Connecticut, Nevada, Rhode Island, Washington, California, and New York (effective September 17, 2023), as well as in several localities, including New York City. Notably, this legislative movement is not showing any signs of slowing down. Indeed, pay transparency laws are currently being considered in at least 15 states, including Massachusetts, Alaska, Georgia, Hawaii, Illinois, Kentucky, Missouri, Montana, New Jersey, Oregon, South Dakota, Vermont, Virginia, West Virginia, and Maryland, as well as Chicago and Washington, D.C.

In addition, two United States Representatives recently introduced a bill in the United States House of Representatives entitled the “Salary Transparency Act” that proposes to amend the Fair Labor Standards Act to require employers to disclose in any public or internal employment posting the wage or wage range for the employment opportunity. The Salary Transparency Act defines “wage range” as “the range of wages, or salaries and other forms of compensation, that the employer providing such employment opportunity anticipates in good faith relying on in setting the pay for such employment opportunity.”

What Should an Employer Do to Ensure Compliance?

Given that nearly half of the country has enacted or is considering enacting pay transparency laws, it is imperative that multi-state employers be aware of their pay transparency obligations. Although pay transparency laws typically require employers to disclose salary and hourly wage ranges on job advertisements/postings, the specific requirements often vary in scope and detail. As a result, before advertising for a position, multi-state employers are well-advised to review whether there is a state-specific pay transparency law in their jurisdiction(s) and, if necessary, tailor their job advertisements/postings and practices accordingly.

What Are Some Specific Examples of Pay Transparency Laws? 

In Colorado, employers with one or more employees in the state must include on a job posting: (1) the hourly rate of salary compensation (or range thereof) being offered for the position; (2) a general description of any bonuses, commissions or other forms of compensation; and (3) a general description of the benefits the company is offering for the position. Benefits that must be generally described include health care, retirement benefits, paid days off, and any tax-reportable benefits.

Significantly, if a business with even a single employee in Colorado advertises a job as a remote opportunity that can be performed outside of Colorado, the law still applies and employers must include the compensation and benefits in the job posting. The Colorado Department of Labor & Employment takes the position that if the job is “capable of being performed in Colorado, including remote work,” then employers are required to disclose the compensation and benefits. Moreover, an employer cannot avoid its disclosure obligations under the law by explicitly stating that it will not accept Colorado applicants. As a result, employers that have even one employee in Colorado may need to comply with Colorado’s pay transparency law.

In California, as of January 1, 2023, an employer with fifteen or more employees, at least one of whom is physically located in California, must include the “pay scale” for the position in the job posting. California defines pay scale to mean the salary or hourly wage range (including commissions or piece rate, if applicable) the employer reasonably expects to pay for a position. In addition, like Colorado, the pay scale must be included in the job posting if the position may ever be filled in California, either in-person or remotely. Unlike Colorado, however, employers in California are not required to post “any compensation or tangible benefits provided in addition to a salary or hourly wage” (although employers may include this information if they so choose).

In New York State, starting on September 17, 2023, employers with four or more employees must disclose the compensation or a range of compensation in an advertisement for a job, promotion, or transfer opportunity, as well as the job description for the job, promotion, or transfer opportunity (if such a description exists). A range of compensation means “the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.” If a position is to be paid solely on commission, then any advertisement shall indicate the compensation shall be based on commission.

Unlike Colorado and California, New York State’s law applies to advertisements for jobs that will be physically performed, at least in part, in New York, as well as jobs that will be physically performed outside of New York, but only if the position will report to a supervisor, office, or other work site in New York.

Employers in New York State that have employees in New York City must also ensure compliance with New York City’s Salary Transparency Law.

What About Massachusetts?

Here in the Commonwealth, two bills are currently pending in the Legislature – one in the Senate and the other in the House – that would require public and private employers employing fifteen or more employees in Massachusetts to “disclose the pay range for a particular employment position within the advertising or posting of the position.” Covered employers would also be required to provide the pay range to a current employee who is offered a promotion or transfer to a new position. The legislation currently pending in the House defines “pay range” as the “annual salary range or hourly wage range or other compensation that the employer reasonably and in good faith expects to pay for such position at that time.”

Given the strong legislative push across the country to enact pay transparency laws, it is reasonable to believe that Massachusetts – a state that generally sets the pace for new employment laws (e.g., paid sick time, paid family medical leave) – will soon adopt a pay transparency law of its own. Employers may wish to take this opportunity to review their compensation systems to ensure they can identify the pay range for each position.

We will continue to monitor any developments in the area of pay transparency and update you as they happen. Should you have any questions about pay transparency laws or require assistance tailoring job applications or postings to ensure compliance with applicable laws, please reach out to any member of the Labor & Employment Group here at Mirick O’Connell.  

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Private Employers Take Note: Overbroad Non-Disparagement & Confidentiality Restrictions in Severance Agreements Run Afoul of the National Labor Relations Act

As many employers well know, it is customary to include non-disparagement and confidentiality provisions in severance agreements that prohibit departing employees from (i) making disparaging, critical, or otherwise detrimental comments concerning the employer and (ii) disclosing information concerning the substance, terms, or existence of the severance agreement and/or the discussions or negotiations relating to the severance agreement. A recent decision from the National Labor Relations Board (“Board”), however, makes clear that overly broad non-disparagement and confidentiality provisions run afoul of private sector employees’ rights under the National Labor Relations Act (“NLRA”). In light of the Board’s recent decision, private sector employers are well-advised to review their existing non-disparagement and confidentiality restrictions in their severance agreements to ensure compliance with the NLRA. 

A Precedent-Altering Decision from the Board

In the case – McLaren Macomb, 372 NLRB No. 58 (2023) – the employer offered severance agreements to 11 permanently furloughed employees. In addition to releasing claims against the employer, the severance agreements contained broad non-disparagement and confidentiality provisions. The non-disparagement provision restricted employees from making statements to the employer’s employees or to the general public “which could disparage or harm the image of the [e]mployer….” The confidentiality restriction prohibited employees from disclosing the terms of the severance agreement to any third party, other than the employee’s spouse or professional advisor, or unless compelled to do so by law. In exchange for signing the severance agreement, employees were offered monetary consideration.

In its analysis, the Board considered whether these two provisions ran afoul of an employees’ rights under Section 7 of the NLRA, which protects employees’ rights to engage in “concerted activities for the purpose of… mutual aid or protection…,” including the right to discuss the terms and conditions of employment. Section 7 of the NLRA also protects current and former employees’ rights to “improve their lot as employees through channels outside the immediate employee-employer relationship” by communicating with third parties on a range of issues impacting the employment relationship. Against this backdrop, and analyzing the plain language of the non-disparagement and confidentiality provisions referenced above, the Board held that each provision had a reasonable tendency to interfere with, restrain, or coerce employees’ Section 7 rights and, therefore, was unlawful. 

The Board’s General Counsel Issues Guidance on McLaren Macomb

After receiving many inquiries to her office, the Board’s General Counsel recently issued a memorandum with guidance on the scope and effect of the McLaren Macomb decision, a copy of which can be found here. Although the memorandum does not carry the force of law, it does provide significant insight into how the Board might handle a case asserting Section 7 violations due to overbroad severance agreement provisions. Some of the more salient points from the General Counsel’s memorandum are as follows:

  • The decision does not outlaw severance agreements; rather, the decision restricts employers from utilizing overly broad provisions in severance agreements that have an adverse impact on employees’ rights to engage in concerted activity protected by Section 7 of the NLRA.
  • Even if an employee does not sign a severance agreement containing an overbroad restriction, an employer violates the NLRA merely by proffering a severance agreement containing overbroad non-disparagement and/or confidentiality provisions.  
  •  Except under limited circumstances, supervisory employees generally fall outside the scope of the Board’s decision.
  • If confronted with a severance agreement containing overbroad provisions, the Board is not likely to move to strike the entire severance agreement. Rather, the Board would likely seek to have the unlawful provisions severed.  
  • The decision has retroactive application and applies to overbroad provisions currently existing as part of severance agreements. Thus, if, for example, an employer entered into a severance agreement in June 2022, and tried to enforce an overbroad confidentiality clause in April 2023, such action would be unlawful. 

What Should Employers Do Now?

In light of McLaren Macomb, employers should review their non-disparagement and confidentiality provisions in severance agreements to ensure compliance with the Board’s decision. In addition, for situations in which an employer suspects a former employee of violating a non-disparagement or confidentiality provision in a severance agreement that pre-dates McLaren Macomb, we recommend that the employer seek advice of legal counsel prior to initiating any action to enforce the non-disparagement and/or confidentiality provisions.  

Should you have any questions concerning the McLaren Macomb decision or would like assistance reviewing and/or revising your current severance agreement model, please contact any member of the Labor & Employment Group.  

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Is Your Company in Compliance With Executive Order 13706?

In September 2015, Executive Order 13706 was signed, requiring employers that enter into covered contracts with the federal government to provide covered employees with up to seven days (56 hours) of paid sick leave annually, including paid leave allowing for family care.  The passage and requirements of the Executive Order did not receive widespread attention, but the Department of Labor has begun audits of covered employers to ensure compliance.

Covered Contracts:

Under the Executive Order, paid sick leave requirements apply to a new contract (beginning on or after Jan. 1, 2017) that is:

  1. a procurement contract for construction covered by the Davis-Bacon Act (DBA);
  2. service contracts covered by the Service Contract Act (SCA); or
  3. contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The Executive Order does not apply to contracts that are subject only to the Davis-Bacon Related Acts (81 FR 67613).

Covered Employees:

The Executive Order applies to employees that are: (1) working “on” or “in connection with” a covered contract; and (2) whose wages are governed by the DBA, SCA, or FLSA, including employees who qualify for an exemption from the FLSA’s minimum wage and overtime provisions.

An employee who works only “in connection with” covered contracts and spends less than 20% of their time in any workweek doing so does not accrue paid sick leave in that workweek. 29 CFR 13.4(e)

Accrual and Usage:

All employees, in the performance of the covered contract or any subcontract thereunder, must earn at least 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, up to a total of 56 hours. 

Paid sick leave earned under this order may be used by an employee for an absence resulting from:

  1. physical or mental illness, injury, or medical condition;
  2. obtaining diagnosis, care, or preventive care from a health care provider;
  3. caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in paragraphs (1) or (2) of this subsection or is otherwise in need of care; or
  4. domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in paragraphs (1) and (2) of this subsection, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described in paragraph (3) of this subsection in engaging in any of these activities.

The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed.

Paid sick leave accrued under the Executive Order carries over from year to year and shall be reinstated for employees rehired by the employer within 12 months after a job separation. Contractors may limit employees’ accrued amount of paid sick leave at any point in time to 56 hours.

The paid sick leave required by the Executive Order is in addition to an employer’s obligations under 41 U.S.C. chapter 67 (Service Contract Act) and 40 U.S.C. chapter 31, subchapter IV (Davis-Bacon Act), and employers may not receive credit toward their prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of the Executive Order.

Notice Requirements:

The Executive Order requires an employer to inform each employee, in writing, of the amount of paid sick leave that the employee has accrued but not used at least once each pay period or each month, whichever interval is shorter, as well as upon a separation from employment and upon reinstatement of paid sick leave.

An employer’s existing procedure for informing employees of their available paid time off, such as notification accompanying each paycheck, or an online system an employee can check at any time, can be used to satisfy or partially satisfy these requirements provided it is written (including electronically) and clearly indicates the amount of paid sick leave an employee has accrued separately from indicating amounts of other types of paid time off available.

In addition, employers must post a notice at the worksite informing employees of the Executive Order’s paid sick leave requirements.

Employers who have (or will) entered into covered contracts should also ensure that their paid sick leave policies are compliant with the Executive Order and the Massachusetts Earned Sick Time Law. 

Please contact a member of our Labor, Employment and Employee Benefits Group if you have any questions about Executive Order 13706.

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SJC Finds Public Meeting Comment Restrictions Unconstitutional

Government boards and committees should review their public comment policies following a decision this week by the Supreme Judicial Court holding that a “civility code” violated the Massachusetts Constitution’s Declaration of Rights and the Massachusetts Civil Rights Act.

In Barron v. Kolenda, resident Louise Barron attended the Southborough Select Board’s public meeting on December 4, 2018, which was led by acting chair Daniel Kolenda. Before allowing public comment, Kolenda reminded attendees of the Town’s civility code, which provided:

“All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal, or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.”

Following Kolenda’s reminder, Barron stood up holding a sign stating “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other. Barron critiqued proposed budget increases, opining that the town “ha[d] been spending like drunken sailors” and was “in trouble.” Barron further critiqued the board for Open Meeting Law violations and told Kolenda to “stop being a Hitler.” Kolenda told Barron to refrain from any further comments and recessed the meeting. During the recess, Kolenda told Barron she was “disgusting” and would have her “escorted out” of the meeting if she did not leave.

Article 19 of the Massachusetts Declaration of Rights provides:

“The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”

The SJC found that the text of Article 19 encompassed Barron’s statements and the civility code sought to, impermissibly, control the content of her public comments.

The Court explained that public bodies may impose reasonable restrictions on the “time, place, or manner of protected speech and assembly” provided the restrictions are content-neutral, “narrowly tailored to serve a significant governmental interest,” and that there are “ample alternative channels for communication of the information.”

In addition, the SJC found that the civility code violated Article 16 of the Massachusetts Declaration of Rights, which provides: “The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.” The SJC determined the civility code was undeniably directed at political speech because it regulated speech in a public comment session of a meeting of the board. It further decided the civility code was content based because it required that the SJC examine what was said.

In finding that the Town’s civility code violated Article 16, the SJC explained the code’s requirement that the speech directed at government officials “be respectful and courteous, [and] free of rude … remarks” constituted “viewpoint discrimination: allowing lavish praise but disallowing harsh criticism of government officials.” That is, it was not content-neutral.

Finally, the SJC concluded that Kolenda violated the Massachusetts Civil Rights Act by interfering with Barron’s constitutional rights under Articles 19 and 16 via “threats, intimidation or coercion” when he shouted “you’re disgusting,” and threatened to escort her out of the meeting.

The Barron decision follows other recent decisions (Mirick O’Connell Public Education e-Alert ( O’Connell e-Alert ( holding that policies prohibiting remarks during the public comment portion of meetings for being disrespectful, rude, improper, or abusive are unconstitutional infringements upon individuals’ First Amendment rights. Although this decision prohibits certain restrictions on public comment, the SJC emphasized that government bodies may still require public comment sessions be conducted in an “orderly and peaceable” manner, including designating when public comment is allowed, the time limits for each person speaking, and rules preventing speakers from disrupting others, and removing those speakers if they do.

Of note, the Barron decision did not squarely address whether a public body must allow public comment at meetings. Under the Open Meeting Law, the public must be allowed access to observe the work of public bodies at meetings, but public comment is only permitted at the discretion of the public body and its chair.

Any policies governing public comment at meetings must comply with the holding in Barron and may include reasonable time, place, and manner restrictions so long as they are content-neutral.

Please contact any member of our Public Education or Municipal Law Group if you have any questions about this legal update. 

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The FTC’s Proposed Ban On Noncompetes – Predictions

Following his election, President Biden issued “The Biden Plan for Strengthening Worker Organizing, Collective Bargaining and Unions,” in which he promised to work with Congress to “eliminate all non-compete agreements” with very limited exceptions. While a bipartisan bill, the Workforce Mobility Act of 2021, was introduced in Congress, it died in committee.

On a parallel track, President Biden issued his Executive Order on Promoting Competition in the American Economy, one point of which was to “encourage” the Federal Trade Commission (FTC) to “exercise the FTC’s statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” 

That “encouragement” has now resulted in action.  On January 5, 2023, the FTC published a proposed rule that would effectively ban the use of nearly all non-compete agreements. 

The FTC’s Proposed Rule.

The FTC’s proposed rule, if finally adopted, is far-reaching.  It bans the use or attempted use of non-compete agreements with only the limited exception for non-competes associated with the sale of a business.  Aside from banning non-competes prospectively, it also goes further, invalidating all existing non-competes.  The proposed rule accomplishes this goal by requiring employers to rescind any non-competes as of the effective date of the rule.  It must then notify its employees of this rescission within 45 days.  This rescission and notice requirement applies both to a company’s existing employees as well as any former employees who signed a non-compete.

One may recall that this issue was quite the political football in Massachusetts for over ten years before the Noncompetition Agreements Act passed in 2018.  Leading up to its passage, there was spirited legislative debate.  In its final form, the Act was a clear compromise between the two sides of this issue, preserving an employer’s right to seek a non-compete from its employees in narrow circumstances, but then attaching a number of conditions and restrictions to that use.  See Massachusetts Legislature Passes Long-Anticipated Act Limiting Noncompetition Agreements, Off-the-Clock Blog Post, August 2018.  This iterative process and subsequent enactment has resulted in a significant decline in the use of non-competes in Massachusetts without the necessity of an outright ban.  Indicative of this same policy tug-and-pull within the FTC, one member issued a strenuous written dissent to the proposed rule. 

The Rule Making Process Ahead.

Consistent with regulatory protocol, the proposed rule is currently in a short comment period.  Once the comment period closes on March 4, 2023, the FTC will assess the comments and make such modifications to the proposed rule as it deems appropriate.  Once the final rule is published, it will take effect 180 days later.  The anticipated effective date of the modified rule is therefore projected to be sometime in the fall of 2023.

Rather than elaborating on the pros and cons of this proposed rule, let me offer some predictions:

Anticipated Comments To The Rule.

Do Nothing.  No doubt, many comments are likely to join the dissent and encourage the FTC to withdraw the proposed rule as being unnecessary, unwarranted or harmful.  Assuming the FTC does not back down, I anticipate three other likely subjects for comments.

Senior Executives.  Citing overwrought fast food and camp counselor examples, proponents of a ban on noncompetes have justified it as necessary to address the unequal power dynamic between sophisticated, well-heeled corporations on one side and unsophisticated, exploited and mostly powerless non-union low wage workers on the other.  Arguing that this rationale is inapplicable to senior executives and other highly paid employees, the most prevalent comment is likely to be directed at adding an exemption for those for whom the bargaining playing field is seen as already level.

Severance Agreements.  As with senior executives, the power dynamic is very different if the employee is already departing.  The employer offers a financial parachute to the soon-to-be former employee in return for an agreement not to compete.  The analysis for the departing employee is much simpler than if it occurs at the start of or during continuing employment.  Should that employee bet on herself and her likely ability to find another job and reject the severance offer coupled with a non-compete?  Or should she make the decision to accept the golden parachute and non-compete as a hedge against her employability in the short term?  Either way, the disparate power dynamic is neutralized and comments urging adding this exception are also likely. 

State’s Rights.  The last several years have seen an explosion of efforts by legislators at the state level to address the real or perceived unfairness of non-competes.  Dozens of states have passed a potpourri of reform statutes, allowing that legislative process to distill constituent sentiment and arrive at a solution palatable to legislators and voters in a given state.  Preserving that local authority, there may be some comment presented to let unique state reforms to stand and apply the federal solution only in those states where there has been no legislative action. 

Prediction 1:  No Substantive Changes Will Be Made In The Final Rule.

I strongly doubt the FTC will back down entirely.  But will it be responsive to comments?  Of the possible modifications articulated above, I think that exempting agreements for senior executives and severance payments are the only two that have any chance of making their way into the final rule.  Even the prospects of those two changes, however, fly in the face of the FTC’s argument for why it has authority to issue the rule in the first place.  Specifically, the FTC focused on the rationale of “combatting unfair competition” and positing that banning non-competes “would increase American workers’ earnings between $250 billion and $296 billion per year.”  Given that its stated justification for the rule focused on the economic impact of non-competes rather than employer-employee power dynamics, comments designed to negate the power dynamic concern may not gain any traction.  Instead, I think it likely that the final rule will not vary much from its original iteration.    

Prediction 2:  The Rule Will Be Met With A Spirited Judicial Challenge … And Lose.

As indicated, once finalized, the rule will become effective 180 days after final publication.  If left unchallenged, the rule would then take effect in the fall of 2023.

“If left unchallenged,” however, appears highly unlikely.  The United States Chamber of Commerce has already made it known that it intends to mount a judicial challenge to the rule.  Given the uncertainty and potential upheaval that will result if the rule takes effect, such a challenge is likely to include a request for an injunction to prevent the rule from taking effect before its effective date. 

While there may be other legal arguments offered, it is likely that the primary point of emphasis will be the “major questions doctrine.”  In its 2022 decision in West Virginia v. EPA, the United States Supreme Court ruled that the EPA could not issue regulations relative to “major questions” without an express delegation of the authority to do so by Congress. In striking down the EPA’s greenhouse gas emission regulations, the Court held that Congress had not provided such authority and rejected the EPA’s argument that there was broad Congressional authority under the Clean Air Act. 

Without oversimplifying the issue, it seems likely that the same Supreme Court majority would follow its prior ruling and reject the FTC’s attempt to shoehorn this rulemaking into broad Congressional authority to combat unfair competition.  If so, the ball will bounce back to the halls of Congress to see if its two divided houses (and then the President) can agree on a solution … or even agree on whether there is a problem in need of a solution.  If that happens, stay tuned and I will look into my crystal ball again to handicap that race.

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Update Policies to Comply with the Massachusetts CROWN Act

At the end of October 2022, the Massachusetts Act Prohibiting Discrimination Based on Natural and Protective Hairstyles (the “CROWN Act”) went into effect. The CROWN Act expands the definition of “race” under Chapter 151B to include “traits historically associated with race, including, but not limited to, hair texture, hair type, hair length, and protective hairstyles.” The term “protective hairstyles” is further defined to “include, but not be limited to, braids, locks, twists, Bantu knots, hair coverings, and other formations.”

The MCAD is tasked with promulgating rules and regulations to implement the CROWN Act. In the meantime, however, the Act is presently in effect and employers should review and update their Equal Employment Opportunity and dress, grooming, and related policies to ensure compliance.

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2023 Changes in Massachusetts Employment Laws

            Beginning January 1, 2023, changes to the Massachusetts Minimum Wage Law, retail premium pay, and Massachusetts Paid Family and Medical Leave Law take effect.

Changes to Minimum Wage & Premium Pay

  • Minimum wage increased from $14.25 an hour to $15.00 an hour (applies to non-agricultural workers and workers that do not receive tips).
  • Minimum wage for tipped employees increased from $6.15 an hour to $6.75 an hour.
  • The Retail Premium Pay mandate for Sundays and holidays (Massachusetts Blue Laws) is eliminated.

Changes to Paid Family and Medical Leave (PFML)

  • The earnings requirement to be eligible for PFML increased to $6,000 during the last four completed calendar quarters.
  • The maximum weekly benefits under PFML increased from $1,084.31 to $1,129.82.
  • Employer contribution rates (i.e., the tax rate to fund paid leave benefits under PFML) are reduced as follows:
  • Employers with 25 or more covered individuals will now need to pay .63% of eligible employee wages.
  • Employers with fewer than 25 covered individuals will see their contribution rate fall to .318%.

Employer Reminders

While entering the new year, employers are encouraged to review all employee classifications to ensure that employees are classified correctly under the federal Fair Labor Standards Act and Massachusetts Wage and Hour law.

If you have any questions about your organization’s employee classifications, or questions regarding the 2023 changes, please contact a member of our Labor, Employment and Employee Benefits Group. 

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Employers Must Remember Their Obligations under the Massachusetts Pregnant Workers Fairness Act

The Massachusetts Pregnant Workers Fairness Act (the “Act”), which went into effect on April 1, 2018, amended Massachusetts General Law c. 151B to include “pregnancy or a condition related to pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child” as a protected classification. The Act also covers employers’ obligations to employees who are pregnant or lactating and the protections such employees are entitled to receive. Below are key elements of the Act that employers are well-advised to keep in mind to ensure compliance. Although the Act has been in effect for nearly five years, it is likely employers may have lost sight of their obligation to provide timely notice to new employees of the Act’s provisions, as well as to employees who become pregnant. 


  • Employers must provide written notice to employees of the right to be free from discrimination due to pregnancy or pregnancy-related conditions, including the right to reasonable accommodations for conditions related to pregnancy, in a handbook, pamphlet, or other means of notice. 
  • Employers must also provide written notice of employees’ rights under the Act: (1) to new employees at or prior to the start of employment; and (2) to an employee who notifies the employer of a pregnancy or a pregnancy-related condition, no more than 10 days after such notification.

Reasonable Accommodations

  • Employers must provide covered employees and prospective employees reasonable accommodations for their pregnancy or pregnancy-related condition, provided that the employee or prospective employee is otherwise capable of performing the essential functions of the job, and the accommodation does not impose an undue hardship.
  • When an employee requests an accommodation, the employer must engage in a timely interactive process with the employee to determine whether an effective, reasonable accommodation exists.
  • Reasonable accommodations may include: (1) more frequent or longer paid or unpaid breaks; (2) paid or unpaid time off to recover from childbirth; (3) acquisition or modification of equipment or additional seating; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty work; (7) providing a private, non-bathroom, space for expressing milk; (8) assistance with manual labor; and (9) modified work schedules. 
  • Employers may request medical documentation to support a request for accommodation, except that employers cannot require documentation from requesting employees to support accommodations for more frequent restroom breaks, food accommodations, additional water breaks, seating accommodations, and limits on lifting over 20 pounds.

Other Key Provisions of the Act

  • Employers with six (6) or more employees are covered by the Act.
  • The Act applies to both employees and prospective employees.
  • Employers cannot retaliate against an employee for requesting an accommodation.
  • Employers must reinstate employees to their original employment status or equivalent position with equivalent pay and accumulated seniority when the need for reasonable accommodations ceases.
  • Employers cannot require employees to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job.

Please contact a member of our Labor, Employment and Employee Benefits Group if you have any questions about your organization’s obligations under the Act, including the drafting and implementation of the necessary employee notice or policy.

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DOL Proposes to Revert the Independent Contractor Analysis to the Employee-Friendly Totality-Of-The-Circumstances Analysis 

On October 11, 2022, the Department of Labor (“DOL”) issued a new proposed rule, entitled “Independent Contractor Status Under the Fair Labor Standards Act,” for determining whether an individual is an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”).

The current Trump administration rule became effective in March 2021 and makes it easier for employers to classify workers as independent contractors rather than employees.  The current rule applies an economic reality test that primarily considers two “core factors:” the nature and degree of control over the work and the individual’s opportunity for profit or loss based on initiative and investment, to determine if an individual is an independent contractor or an employee.  

The Biden administration’s new proposed rule seeks to revert the current standard back to a totality-of-the-circumstances analysis of the multifactor economic reality test.  The totality-of-the-circumstances analysis weighs six economic reality test factors, which include:

  • The nature and degree of control exercised by the worker over the work they are performing;
  • The individual’s opportunity for profit or loss in connection with the work;
  • The permanency of the relationship between the parties;
  • The amount of skill required to perform the work;
  • The nature of individual’s investment in equipment or other resources as compared to the hiring entity’s investment; and
  • Whether the work is an integral part of the employer’s business.

Under the proposed rule, the economic reality factors do not have any predetermined weight and are considered by weighing all the factors in view of the economic reality of the whole activity and relationship. 

The current standard’s “core factors” makes it easier to classify individuals as independent contractors since it focuses on just two core factors and a narrow set of facts. The totality-of-the-circumstances analysis, on the other hand, makes it harder to classify individuals as independent contractors under the FLSA because of the multitude of facts that must be considered and can be weighed by the DOL.  

As such, employers must be cautious in evaluating whether an individual is an independent contractor or whether they are an employee subject to FLSA and state wage protections.  Misclassifying individuals can lead to substantial penalties for each violation.

Comments on the proposed rule are due on November 28, 2022 and the final rule is not expected to go into effect until mid-2023.  We will keep track of the status of the DOL’s proposed rule.  In the meantime, please do not hesitate to reach out to any member of the Labor and Employment Practice Group with any questions or concerns about classifying workers.

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EEOC Issues Updated Guidance Regarding COVID Screening by Employers

On July 12, 2022, the Equal Employment Opportunity Commission issued updated guidance for employers regarding COVID-19 testing and accommodations.

Perhaps most impactful, the EEOC altered its position regarding employers testing employees for COVID-19 as part of a mandatory screening prior to entering the workplace. Previously, the EEOC provided that employers could administer viral tests without conducting any prior analysis of the requirement.

Under the new guidance, employers can administer COVID-19 viral tests to employees as part of a screening protocol only if doing so is “job-related and consistent with business necessity.” Employers can generally satisfy the “business necessity” prong if/when: (a) the employees tested are or will be in the workplace; and (b) testing is consistent with guidance from the CDC, FDA, and/or public health authorities that is current at the time of the testing. In analyzing the former, employers should consider several factors including, but not limited to: the level of community transmission, the vaccination status of employees, the degree to which breakthrough infections are possible for employees who are “up to date” with vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant(s), the accuracy and speed of processing for different types of COVID-19 viral tests, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work, and the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC further stated that employers cannot require an employee to submit to COVID-19 antibody testing before being permitted to enter the workplace, as antibody testing does not show whether an employee has a current infection. However, employers may require an employee who was out with COVID-19 to submit a note from a qualified medical professional prior to their return to the workplace.

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