labor lawAdivision of labor law center

 Massachusetts recently increased the penalties for employers who misclassify employees as independent contractors.

Many states are imposing stricter penalties for employers who illegally avoid paying unemployment insurance and workers’ comp by misclassifying workers as independent contractors.

In Somers v. Converged Access, the Massachusetts Supreme Judicial Court ruled that the independent contractor law is a strict liability  statute. This means that the employer’s intent in misclassifying a worker is irrelevant. Therefore, the worker was entitled to compensation for wages, overtime and benefits that he would have received, if he had been correctly classified as an employee. In addition, the employee was permitted to keep the $65 per hour that the company paid him as an independent contractor – an amount far in excess of an employee’s wage in the same job.

The Massachusetts company was required to pay the employee for benefits including vacation and holiday pay. In addition, the company was ordered to pay the employee overtime at a rate of $97.50 per hour – 1.5 times the worker’s $65-per-hour wage.  

The Massachusetts definition of independent contractor is even more strict than federal independent contractor regulations. A worker is an employee unless he or she is: (more…)

On January 1, 2008, the state of Massachusetts increased its state minimum wage by 50 cents, going from $7.50 to $8.00 per hour.

This put Massachusetts in the rank of second, tied with California, for the highest state minimum wage. Washington comes in first with a state minimum wage rate of $8.07 per hour.

In all, fourteen states increased the minimum wage with the new year.

This new state minimum wage does not apply to all employees. As long as the worker averages $5.37 per hour in tips, employees who earn tips can be paid as little as $2.63 per hour. Employees in the agricultural industry can receive as little as $1.60 per hour.

The Massachusetts state minimum wage law includes some other exceptions. Employers in this state are not required to pay a premium for weekend, holiday or night time work. The “Blue Laws” are an exception, which require that some retailers pay a premium rate to employees who work on holidays and Sundays.

A premium rate of pay, or overtime, is normally paid to any worker who puts in more than 40 hours during one week. This rate is paid at 1.5 times the normal hourly rate. Several types of employees, however, are excluded from overtime pay by the state minimum wage law. These employees include fishermen, golf caddies, newsboys, apprentices, outside salespersons, and switchboard operators for the phone company, among others.

Seasonal businesses that operate fewer than 120 days per year are also exempt from paying overtime.

Massachusetts excludes a number of industries from paying overtime, too. Hotel, restaurant, hospital, gas station, nursing home and amusement park workers do not qualify for overtime pay. Non-profit summer camp employees and workers are non-profit schools and colleges are exempt from overtime pay.

Many changes will occur in 2008 regarding minimum wage laws. The changes in both federal and state laws will require all Massachusetts companies to update their labor law posters. Companies that need updated information can check out the labor law website at www.laborlawcenter.com.

January 1, 2008 saw an increase in state minimum wage for fourteen states, including Montana, Arizona, Iowa and Delaware and ten others. These raises, however, are just the first of many increases slated for 2008.

The first of these increases will occur on July 1, 2008. Three states will enjoy a substantial raise at this time. Kentucky will add 70 cents to its minimum resulting in a new rate of $6.55. West Virginia will also see a 70 cent bump, from $6.55 to $7.25 per hour. Employees in Pennsylvania, however, will see the biggest boost, a 90 cent jump from $6.25 to $7.15

Five other states will enact less dramatic increases to their minimum wage rates. For example, both Michigan’s and Illinois’s rates will receive a 25 cent bump. The minimum wage in Illinois will increase from $7.50 to $7.75. Michigan’s minimum will be raised from $7.15 to $7.40 per hour.

The July 24, 2008 increase in the federal minimum wage is a result of the Fair Minimum Act of 2007, which President George W. Bush signed into law on May 24, 2006. The Act set up a three step system of increases. The July 24, 2008 bump will be the second step of that system.

Several states, including Texas, Maryland and Oklahoma, tie their state minimum wage increases to when federal minimum wage goes up. When the federal minimum wage goes up on July 24, 2008, the minimum wages in these states will go up, too. Ohio’s minimum wage will increase to $6.55 per hour for workers of companies with gross annual revenue of less than $255,000.

In addition to the states mentioned above, the District of Columbia also ties its minimum wage to the federal minimum. In D. C., however, the law requires the minimum wage rate to be at least $1.00 more per hour than the federal rate. On July 24, 2008, D.C.’s minimum wage will increase to $7.55 per hour.

The state minimum wage in Massachusetts will increase by 50 cents from $7.50 to $8.00 on January 1, 2008. This change puts the state’s minimum wage on a par with California, tied at second highest in the nation, after the Washington state minimum wage.

Under significant exceptions to the minimum wage, however, tipped employees can be paid just 2.63 per hour, as long as they earn an average of $5.37 per hour in tips over the shift. Workers in the agricultural industry can be paid just $1.60 per hour.

The Massachusetts minimum wage statue does not require employers to pay a premium for weekends, holidays or night work. However, the state Blue Laws do require that some retailers pay a premium for Sundays and holidays.

Massachusetts is one of a handful of states that requires employers to compensate employees for any accrued vacation time upon termination. However, the state does not mandate any paid sick days or severance pay.

Most workers are entitled to overtime at 1.5 times the usual rate of pay after 40 hours in one week under Massachusetts minimum wage law. However, a number of employees are excluded from the state’s overtime provision, including:

• Residential Janitors who are furnished with living quarters
• Golf Caddies
• Newsboys
• Child Actors
• Outside Salespeople
• Apprentice
• Handicapped person under special license
• Fishermen
• Switchboard Operator for the Phone Company
• Truck Driver or Helper covered by ICC
• Seamen

The state also exempts employees of a seasonal business from overtime payments, provided that business operates less than 120 days per year.

Employees in several industries are also exempt from the state overtime provisions, such as those who work in hotels, restaurants, hospitals, gas stations, nursing homes, and amusement parks. Employees in non-profit schools or colleges are also exempt from overtime, as are workers at non-profit summer camps.

Some of the workers named above may be entitled to overtime under federal regulations.

When labor laws change, employers are required to post the updated information with new labor law posters. In 2008, several changes will occur so that employers will need to update their information. Complete listings are available at www.laborlawcenter.com.

Most of the states in the country have enacted state minimum wage laws. Over a dozen of these states will introduce increases in these minimums on January 1, 2008. 

In Arizona, Florida and Montana, the minimum will see a small raise of just a few cents per hour. Arizona’s minimum will go from $6.75 to $6.90. Florida will add 14 cents to its current rate of $6.65 to get $6.79. Only nine cents will be added to Montana’s minimum wage to go from $6.15 to $6.26 per hour.

Conversely, Iowa will add over a dollar to raise their minimum from $6.20 to $7.25 per hour. New Mexico, too will add more than a $1 per hour, from $5.15 to $6.50 per hour.

Later in the year several more states will up their minimum wages, too. July 1, 2008, Kentucky will go up almost a dollar per hour from $5.58 to $6.55. Ninety cents will be added to the minimum wage in Pennsylvania of $6.25 to reach $7.15 per hour.

The federal minimum wage will go into effect on July 24, 2008 at $6.55 per hour. Many states have legislation that connects their minimum wages to the federal minimum, including Virginia, Indiana and Nebraska. On July 24, 2008, then, these states will increase their minimum wages, too. Washington D. C. has tied its minimum to the federal at exactly one dollar more, so when the new federal minimum debuts on July 24, D.C.’s minimum will go up to $7.55 per hour.

If, as an employer, the changes are not clear, or more information is needed regarding how and what to update, businesses can get information on all 50 states online at www.laborlawcenter.com.

With demand for healthcare workers and especially nurses reaching an all-time high, the issue of violence in the workplace is surfacing. Surprisingly, nurses are assaulted on the job as often as prison guards and police officers. Yet, many hospitals fail to protect employees, according to the Massachusetts Nursing Association. Many nurses are told to ignore attacks by patients, even when they result in potentially life-threatening situations. Others are discouraged from reporting attacks, and told that dealing with enraged, combative patients is simply part of the job.

A bill currently before the Massachusetts House of Representatives would change that. The bill, sponsored by Senator Jarrett Barrios would require health care providers to implement a comprehensive program to prevent workplace violence, including attacks against nurses. The bill would require that employees develop annual risk assessments and develop violence protection plans. It would also require workplaces to provide counseling for victims of violence.

An Associate Professor at the University of Massachusetts, Craig Slatin, said nurses that are often subject to physical violence, racial slurs and threats from patients and the relatives of patients. “Managers don’t understand the seriousness of these issues and how they relate to the care of their workers,” he said.

Among those testifying at the hearing were several nurses who are recent victims of workplace violence. These include an emergency department nurse at St. Elizabeth’s Medical Center who was exposed to HIV and Hepatitis C when an intoxicated patient tried to punch her, dislodging an IV line. The nurse had to undergo a debilitating round of medication to prevent infection, which has left her sick, weak and depressed.

 ”I still have anxiety. It’s been a life-changing event,” said the nurse. She pressed charges against the patient and now works at a different unit of the same hospital. “I would like to see some sort of legislation that will protect me and my co-workers. People don’t go into nursing to make money . . . I just want to be safe while I’m doing my job.”

In another incident a nurse from Taunton State Hospital was accosted by patients who had fashioned makeshift knives from everyday items. In several cases, the patients threatened to kill the nurse.  She also testified about other nurses who have been assaulted in hospitals operated by the state, suffering serious injuries. The nurse said that a patient once threw a heavy chest of drawers at her while “destroying” her hospital room.

One nurse in Cambridge says the son of a patient swore at her, grabbed her and then threatened to kill her. He pushed her onto a stretcher and said that he would be waiting for her when her shift ended. Hospital managers of the hospital described her concerns as an “overreaction” and tried to prevent her from notifying the police. The nurse ignored them.  When the police escorted her to her car after work, the man was waiting to assault her in the parking lot. 

“My managers were furious at me, and I was reprimanded,” said Duggan. “Anyway, that’s how things are set up for nurses.”

An estimated 1.7 million U. S. employees are victims of workplace violence each year. Nurses and other personal care workers face the highest risk. As a group, healthcare workers including doctors, nurses and aides suffer violent assaults at a rate four to five times higher than other occupations.

Nurses are 12 times more likely to be attacked than workers in other industries.

The results of a 2004 survey are shocking:

• 50% of nurses had been punched at work at least once in the past two years
• 44% of nurses reported frequent threats of abuse
• 25% of nurses were regularly pinched, scratched, spit on or had their hand or wrist twisted

Not surprisingly, most of the attacks occur in hospital Emergency Rooms or Psychiatric wards… although a number of attacks have occurred on other wards. Yet, according to the Massachusetts Nursing Association, most healthcare employers in the state provide little or no support to employees who are attacked on the job.

Hearings held during late June were attended by a group of nurses wearing T-shirts from the Massachusetts Nurses Association (MNA) . They described to committee members how they were physically and verbally attacked by patients and patients’ relatives and how poor workplace policies failed to protect them.

Meanwhile, the Massachusetts Hospital Association (MHA) opposes the bill. While the MHA pays lip-service to worker safety, it claims that the bill would be too expensive and time-consuming to implement.  The MHA says that the precautions that they are currently required to take under OSHA regulations are more than sufficient.

One of the major initiatives of the current administration has been utilizing faith-based and community organizations to ease social problems.

The most recent effort in this area was announced last week, when the U.S. Department of Labor awarded $3.8 million to 73 different faith-based and community organizations. All of the organizations are involved in helping unemployed people make career connections. Some of the organizations serve ex-convicts, while others aid those with educational or financial challenges.

The 73 different organizations help workers who are “hard to serve” in 28 states plus the District of Columbia. Of the 73 grantees, 59 are new organizations. The grants awarded under this program were based on competitions.

The 59 organizations with new grants will receive up to $60,000 each. In addition, a competition between a number of previous grantees resulted in 14 of them receiving additional grants of $30,000 to increase their successful programs.

Programs offer a laundry list of services, from career coaching for ex-offenders to English literacy lessons for immigrants from Ethiopia and the Slavic states.

“Faith-based and community organizations play vital roles in helping those in greatest need to find jobs and build better lives for themselves and their families,” said Secretary of Labor Elaine L. Chao. “The $3.8 million in grants will go to 73 faith-based and community organizations to provide supportive services as individuals seek to reintegrate into the workforce.”

The projects are aimed at helping “hard to serve” clients from a wide range of backgrounds. These include high school dropouts, ex-offenders, welfare recipients and others who have been unemployed long-term. These clients will be offered support services including career counseling, life coaching, mentoring and other services designed to prepare them to enter the work force.

“Faith-based and community organizations have proven their ability to reach into communities and connect individuals facing barriers to employment to local career resources,” said Assistant Secretary of Employment and Training Emily Stover DeRocco. “These groups are one of the primary links between individuals struggling to gain employment and needed assistance.”

The grants are part of the Labor Department’s ongoing effort to partner existing federal programs with effective faith-based and community organizations to better serve the needy. These recent awards will allow recipients to expand their services to more neighborhoods than ever before.

“Working with every willing partner allows us to better serve those in need,” said Rhett Butler, director of the Department of Labor’s Center for Faith-Based and Community Initiatives. “The organizations receiving funding today are skilled at making connections with those in need, at providing services with a personal touch, and at helping individuals break their cycle of recurring struggles that have kept them from better economic opportunities.”

Two grants went to Arizona, including one to benefit refugees in Tucson. A total of six grants went to programs in the state of California. One will benefit the East African community of Orange County, while another went to a Spanish-language group in Oakland. Grants also went to a Slavic community group and a Vietnamese group, both in Sacramento.

A number of community organizations under the program serve ethnic groups. These include an Ethiopian community center in Cambridge, Massachusetts and a Latin American organization in Camden, New Jersey.

Several awards went to groups that work with ex-offenders. These include a rehabilitation group in St. Petersburg, Florida, Pinellas Ex-Offender Re-entry Coalition in Clearwater, Florida, and Texas Re-Entry Services of Fort Worth.

Among the faith-based organizations, Loaves & Fishes Ministries of Hartford Connecticut received $50,000. Eaglevision Ministries, Inc. in Baltimore also received an award. Also among the winners was the St. Vincent de Paul Society in Salem, Oregon.

The Hard Hatted Women, Inc. of Cleveland, Ohio  and the Pharr Literacy Project of Pharr, Texas also received awards.