The Massachusetts Department of Family and Medical Leave (“Department”) recently published its 2023 workforce notifications. These notifications, required under the Paid Family and Medical Leave Act (“PFML”) include a poster, notices, and rate sheets that employers are to post or distribute. Massachusetts employers (excluding individual and public employers who have not adopted the PFML) are required to distribute the notices to employees and display the poster by December 2, 2022, which is 30 days before the new PFML rates take effect. Downloadable versions of the 2023 workplace poster, rate sheets, and notices are available on the Department’s website, here.

Massachusetts employers with a workforce eligible for PFML benefits must display the 2023 workplace poster, which explains PFML benefits, in a workplace location where it can be easily read. The poster must be available in English and each language which is the primary language of 5 or more individuals in an employer’s workforce if that language is one of the 12 translations available from the Department’s website. Employers should continue to display the 2022 poster until the end of the year, while also displaying the 2023 poster to notify employees of the upcoming rate changes. It also a best practice to distribute an electronic version of the poster so that employees may still access it in the event that they work remotely or otherwise do not enter the physical work location.

Additionally, employers must distribute the applicable 2023 PFML notice to all employees and covered contract workers. There are three versions of the notice: (1)  for employers with 25 or more covered individuals; (2) for employers with fewer than 25 covered individuals; and (3) for employers to provide self-employed individuals working on a Form 1099-MISC. As with the poster, the notice must be in English and any other language that is the primary language of 5 or more individuals.

Finally, employers must distribute the new rate sheets, which include the 2023 contribution rates for PFML benefits. These rate sheets also vary by employer size. For employers with 25 or more covered individuals, the family leave contribution rate for 2023 is 0.11%, and the Medical Leave contribution is 0.52%, for a total of 0.63%. Employers may withhold from a covered employee’s wages the entire 0.11% contribution rate for family leave contribution and up to 0.208% for an employee’s medical leave contribution. Employers are responsible for directly paying the remaining 0.312% of medical leave contribution. For employers with fewer than 25 employees, the family leave contribution for 2023 is 0.11% and the medical leave contribution is 0.208% for a total of 0.318%. Employers with fewer than 25 covered individuals may also withhold 0.11% of eligible wages for the family leave contribution and 0.208% of eligible wages for the medical leave contribution.

If you have any questions about the content of this update, please contact us. We are pleased to assist employers with all matters related to PFML.

This update is provided for informational purposes only and should not be considered legal advice.

On November 2, 2022, the Supreme Judicial Court will hear oral argument in Barron, et al. v. Southborough Board of Selectmen, et al., No. SJC-13284. The case is an appeal from a Superior Court decision that rejected a challenge to a local select board’s enforcement of its policy against speech during the public comment session of its open meetings that disrupts the meeting. The plaintiffs claim that the policy violates their speech rights under Article 16 of the Massachusetts Declaration of Rights.

VDH attorney John Foskett has filed an amicus brief on behalf of the Massachusetts Association of School Committees. The brief urges the court to affirm the lower court’s decision; to hold that the public comment sessions during school committee open meetings are a “limited public forum”; and to decide that under analogous cases addressing the right of speech in the First Amendment of the U.S. Constitution, the challenged policy is lawful. The brief argues that so long as a policy is reasonable and viewpoint neutral and is targeted at disruption, the policy may bar speech that involves ad hominem attacks, vituperation, shouting, interrupting other speakers, and similar conduct. The brief argues that this result is consistent with the Open Meeting Law, G.L. c. 30A, §20(g), which authorizes the chairs of local boards and committees to control disruption of open meetings by speakers.

A decision by the court can be expected by December or thereafter.

The Massachusetts Department of Family and Medical Leave recently announced changes to the employer contribution rates and benefit amounts under the Paid Family Medical Leave Act (PFMLA). Effective January 1, 2023, the contribution rate for employers with 25 or more covered individuals will be reduced to 0.63% of covered employees’ eligible wages from the current rate of 0.68%. Employers with fewer than 25 covered individuals will have a contribution rate of 0.318% of eligible wages, a reduction from the current rate of 0.344%.

For employers with 25 or more covered individuals, the 0.63% contribution rate is apportioned between family leave and medical leave, with 0.52% to medical leave and 0.11% to family leave. Employers may withhold from a covered employee’s wages the entire 0.11% contribution rate for family leave contribution and up to 0.208% for an employee’s medical leave contribution. Employers are responsible for directly paying the remaining 0.312% of medical leave contribution.

Employers with fewer than 25 covered individuals may also withhold 0.11% of eligible wages for the family leave contribution and 0.208% of eligible wages for the medical leave contribution.

Although contribution rates will decrease from 2022 to 2023, the maximum weekly wage a covered employee can receive while on paid family medical leave will increase to $1,129.82 per week in 2023 from $1,084.31 per week in 2022.

If you have any questions about the content of this update, please contact us. We are pleased to assist employers with all matters related to paid family medical leave.

This update is provided for informational purposes only and should not be considered legal advice.

On August 29, 2022, the Supreme Judicial Court issued a decision in Abner v. Massachusetts Interscholastic Athletic Association, No. 13224 (2022). The court upheld a determination by the Massachusetts Interscholastic Athletic Association (“MIAA”) that a high school senior who had repeated his junior year and had played four prior years of high school athletics was ineligible for a fifth year. The SJC decided that courts should only overturn MIAA eligibility decisions that are “arbitrary and capricious”. Applying that standard, the SJC concluded that the MIAA’s denial of the request for an extra year of athletic eligibility was a valid application of its rules.

The student attended a public high school for three years and participated in football and basketball each year. During the football seasons the coach allegedly bullied the student, causing him to develop anxiety and depression. As a result, the student transferred to a private school. Based in part on struggles the student had with learning, the student repeated his junior year at the new private school and played football and basketball. Both the public and private schools attended by the student were members of the MIAA. Since the MIAA has a rule restricting student-athlete eligibility to four years, the student was ineligible to play for his senior season unless he received an eligibility waiver. The student requested a waiver and attached a letter from his therapist describing the role sports played in relieving the student’s anxiety and depression, but the MIAA denied the application. After the student obtained a preliminary injunction in the Superior Court, the MIAA appealed and the SJC exercised direct review.

Because the student had played both football and basketball during his senior year while the appeal was pending and had then graduated, he urged the court to dismiss the appeal because the case had become “moot”. The SJC disagreed because retroactive penalties could still be imposed on the school, meaning that it retained a “stake” in the outcome, and because similar challenges to MIAA eligibility determinations are “virtually certain” to be brought in the future. Moving to the merits of the appeal, the court held that, because the MIAA is treated as a state actor for legal purposes and enjoys administrative discretion to determine student-athlete eligibility, a reviewing court should examine a challenged eligibility decision only to determine whether the decision is arbitrary and capricious. Since this is a lenient standard, the SJC determined that the MIAA’s decision was not arbitrary and capricious because it addressed every factor in its eligibility rule and it was supported by evidence.

The Abner decision is important because it sets the standard of review for MIAA eligibility decisions. So long as school districts follow the eligibility rules of the MIAA for sports that are subject to MIAA jurisdiction or use rules that they are authorized to promulgate by the MIAA, it appears that application of those rules will be subject to the generous standard laid out in Abner.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with all legal issues related to athletics, including eligibility determinations, student records, and participation waivers.

This update is provided for informational purposes only and should not be considered legal advice.

On August 11, 2022, the Supreme Judicial Court issued a decision in Joseph O’Leary v. Contributory Retirement Appeal Board, No. 13229 (2022), holding that payments made in lieu of unused, accrued vacation time are not “regular compensation” for the purpose of calculating a public employee’s retirement allowance under the Contributory Retirement Law, G.L. chapter 32. The SJC invalidated prior guidance from the Public Employee Retirement Administration Commission (PERAC), which many employees had relied on to argue that payment for unused vacation time should, under certain circumstances, be considered as regular compensation.

The employee was a police officer who, pursuant to a collective bargaining agreement, was eligible to convert up to ten days of vacation time every year into compensation.  He made this election every December and the compensation was paid biweekly in the next fiscal year. When the retirement board rejected his argument that these payments constituted “regular compensation” for purposes of calculating his retirement allowance, he filed an administrative law appeal which eventually made its way to the SJC.

The SJC applied the definition of “regular compensation” in G.L. c. 32, §1, i.e., “compensation received exclusively as wages [i.e., the base salary or other base compensation of an employee,] by an employee for services performed in the course of employment for his employer.” The court concluded that these payments are excluded from “regular compensation” because they are not “recurrent or repeated” but repeat only upon specific election by the employee during the election period, even if the employee has consistently made the election. The court also held that these payments are derived from salary enhancements or salary augmentation plans which will recur for a limited or definite term and are therefore explicitly excluded from the definition of “wages” in section 1 of the Law.

This decision effectively overrules an advisory memorandum that PERAC issued in 2012 to local retirement boards. PERAC had advised that payments for unused vacation time could be included in pension calculations if they met certain threshold requirements.

The O’Leary decision is important for employers because it defines which payments are included in calculating an employee’s retirement allowance. Employers should be aware that where employees have the option to elect to receive certain payments, those payments will not be used in determining the amount of the retirement allowance if the payments are “elective rather than naturally recurring”.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers who may be confronted with questions regarding the Law, including involuntary retirement applications, employers’ rights in the retirement process, and collective bargaining issues that may implicate the Law.

This update is provided for informational purposes only and should not be considered legal advice.