Women in Labor

On August 6, 2010, Governor Patrick signed into law new legislation that made significant changes to the Criminal Offender Record Information (CORI) law. On May 4, 2012, new CORI provisions go into effect. Employers should be aware of some of the key provisions:

Access for More Employers, but Access to Less Information

All employers may obtain criminal record information to evaluate applicants, current employees (full- and part-time), interns, and volunteers via a new, secure, web-based service called iCORI, which requires annual registration. All employers will have “standard access,” which will allow employers to obtain criminal record information about pending criminal charges, misdemeanor convictions from the past five yers (previously ten years), felony convictions from the past ten years (previously fifteen years), and convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses.

Acknowledgment Forms

Prior to submitting a CORI request, employers must obtain a signed Acknowledgment Form from the applicant or employee.

Data Storage, Retention, and Destruction

Employers must store hard copies of CORI data in locked and secured locations. Electronically stored CORI data must be password protected and encrypted. Employers cannot retain a terminated employee’s CORI information for more than seven years from the last day of employment. Similarly, employers cannot retain an applicant’s information for more than seven years from the date of the decision not to hire. Employers must destroy hard and electronic copies after seven years.

Dissemination Requirements and Restrictions

Employers must provide applicants or employees with a copy of their criminal record information before questioning them about their criminal history. Employers may share CORI information only with people in the organization that have a need to know and the authorization to review the contents of the CORI for the purpose of evaluating an individual’s application for employment.

Written Policy Requirements

Employers that submit five or more CORI requests annually must maintain a written CORI policy.

Use in Employment Decisions

Before making an adverse employment decision based on an applicant’s CORI, employers must (1) provide the applicant a copy of their criminal record information; (2) provide the applicant a copy of the employer’s CORI policy, if applicable; (3) identify the information in the CORI that is the basis for the adverse action; (4) provide the applicant the opportunity to dispute the accuracy of the information contained in the CORI; and (5) provide the applicant information regarding the process for correcting criminal record information. Employers must document all steps taken to comply with these requirements.

In light of these new regulations, employers must carefully review their existing practices and procedures to ensure compliance with these new regulations.

Implementation of the National Labor Relations Board (NLRB) rule requiring all employers subject to the National Labor Relations Act to display a poster informing employees of their unionization rights has yet again been postponed. Yesterday, the U.S. Appeals Court for the District of Columbia issued a temporary injunction, putting the implementation date, which was scheduled for April 30, 2012, on hold until legal challenges are resolved. Specifically, the issue is whether the NLRB has the authority to issue this rule.

Please consult our previous post on August 25, 2011 for more information on the rule. And keep reading this blog for further updates.

Massachusetts lawmakers are considering a bill that would require all employers to provide mandatory sick time to full and part-time (but not seasonal) employees. Under the bill, employees would be entitled to 40 or 56 hours of paid or unpaid sick time per year, depending on the size of their employer. This time would accrue at the rate of 1 hour for every 30 hours worked. The maximum amounts of time, and whether this time must be paid or not, would be dictated by the size of the employer as outlined below:

Employers with less than 6 employees: 40 hours unpaid sick time
Employers with 6-10 employees: 40 hours paid sick time
Employers with more than 10 employees: 56 hours paid sick time

The bill is currently before the Joint Committee on Labor and Workforce Development and, if approved, would go to several other committees before facing a final vote.

While the language of the bill has changed several times and is likely to change again, the latest bill allows employees to utilize their sick time in hourly increments, or the smallest increment that the employer’s payroll system utilizes for absences. Also, an employer would be allowed to request documentation for illnesses lasting longer than 24 hours. The rule would be enforced by the Attorney General, and employers would be prohibited from discriminating against employees who utilized their accrued sick time. Finally, employers who offer 20 or more days of paid time off would, under most circumstances, not have to assume any obligations under the new law.

As written, the bill is substantially broader than Connecticut’s recent paid sick time law (see our post here). Connecticut’s law only requires employers with 50 or more employees to offer up to 40 paid sick leave to “service workers.” As noted above, the proposed Massachusetts bill would apply to all employers and all employees, regardless of whether or not they are service workers.

Several employers and industry associations, including the Associated Industries of Massachusetts, have opposed the bill, predicting that it will have a negative effect on employers’ flexibility in designing and offering vacation policies.

If enacted, this bill could have significant effect on Massachusetts employers. Stay tuned to this blog for further developments.

For most people across the United States, residents of Massachusetts included, daylight savings time begins this Sunday, March 11, 2012, and we set the clocks ahead one hour at 2:00 a.m. Arizona and Hawaii are the only states that do not observe daylight savings time. When daylight savings time begins, employees working the “graveyard shift” work one less hour. For example, if an employee works a shift from 11:00 p.m. to 7:00 a.m., the employee in effect does not work the hour from 2:00 a.m. to 3:00 a.m. Although his or her schedule reflects eight hours, the employee actually worked only seven hours and under the Fair Labor Standard Act (FLSA), a non-exempt employee only has to be paid for seven hours of work (absent a collective bargaining agreement providing otherwise). Employers may choose to generously pay their employees for a full eight-hour shift, but they do not have to include this extra hour of pay in their calculation of whether employees have worked in excess of 40 hours and are thus entitled to overtime pay.

Gaining an extra hour of sunlight also means we lose an hour of sleep. Employers should also be aware that there is an increase of workplace injuries that occur on the Monday following the beginning of daylight savings time.

Employers and employees alike need to remember to turn the clocks ahead one hour before going to bed (or work) on March 11. Employers must also remember that when we “spring forward” there are FLSA implications and safety concerns to consider.

Connecticut lawmakers debated several bills this Tuesday that could have a significant impact on Connecticut employers. The two most important ones would: (1) prohibit discrimination against currently unemployment applicants; (2) increase the penalties for wage and overtime violations; and (3) provide for a periodic increase in the minimum wage over the next few years.

Senate Committee Bill 1 is a variation on a federal bill introduced several months ago (see our post here) that would make it a discriminatory practice for employers or employment agencies “to refuse to consider [an applicant] for employment . . . on the basis that such individual is unemployed.” There would be an exception when one’s “employment in a similar or related job . . . is a bona fide occupational qualification reasonably necessary to successful performance of the job.” It is unclear when an employment-related requirement would be considered “reasonably necessary” for a position, and this issue would presumably have to be resolved on a case-by-case basis.

Bill No. 5291 would increase the penalties for failing to pay employees minimum wage and/or overtime from two to three times the amount of the violation. Additionally, the bill provides for periodic increases of the minimum wage over the next few years: the current amount of $8.25 would rise to $9.00 on July 1, 2012 and to $9.75 on July 1, 2013 (“or one-half of one per cent rounded to the nearest whole cent more than the highest federal minimum wage, whichever is greater . . .”).

Stay tuned to this blog for further developments on these proposals.