On April 4, 2022, the Massachusetts Supreme Judicial Court issued a decision in Reuter v, City of Methuen, No. 13121 (2022), holding that an employer who failed to pay a discharged employee for accrued vacation time on the day of her termination, as required by the Wage Act, G.L. c. 149, §148, is strictly liable for treble the amount of the late wages, and not merely trebled interest. In doing so, the SJC rejected the reasoning of a trial court decision, Dobin v. CIOview Corp., Mass. Sup. Ct., No. 2001-00108 (Middlesex County Oct. 29, 2003), which many employers have relied on to argue that wage payments paid after the date they were due under the statute can be properly made if they include trebled interest.

Reuter involved a school custodian who was terminated for just cause. At the time of termination, she had accrued nearly $9,000 in unused vacation time. Even though the Wage Act expressly requires that this accrued, unused vacation is “wages” and must be paid on the date of termination, the City did not make this payment until three weeks after this date. Subsequently, after receiving a demand letter for treble the amount of the late vacation pay plus attorney’s fees, the City paid an amount which represented a trebling of 12% annual interest on the tardily-paid wages. Following a superior court judgment for the City, an appeal was filed and the SJC took the case on direct appeal.

In its decision, the SJC reviewed the express language of the Wage Act, its legislative history, and its purpose to protect employees who often rely on prompt payment of wages to cover basic necessities. The SJC noted that the liquidated damages provision of the Wage Act makes employers strictly liable for treble damages, meaning that the provision applies regardless of the employer’s intent. The SJC reasoned that the Legislature therefore intended that employers, and not employees, bear the consequences of late payments, whether intentional or not. Reasoning that “the statute does not tolerate or in any way condone delay,” the SJC concluded that all late payments must be trebled as damages under the Wage Act.

The consequences of this decision for employers are notable. Employers must pay an employee for all wages, including accrued, unused vacation time, on the day of termination. The alternative is liability for treble that amount. As the SJC noted, this may mean that an employee who has engaged in illegal activity or other misconduct may have to be suspended with pay for a short period of time before termination to allow the employer time to calculate wages and benefits. Obviously, that option is not available for an employee whose employment is terminated for other reasons or who resigns. Frequently, municipalities and school districts encounter practical obstacles of various kinds in dealing with payroll departments regarding prompt compliance with the statute. The consequences should be clearly explained.

If you have questions about the application of this update or related questions, such as the legality of vacation carryover/“use it or lose it” policies, please contact us. We are pleased to assist employers with Wage Act compliance.

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

On March 18, 2022, the Massachusetts Supreme Judicial Court issued a decision, Lexington Public Schools v. K.S., holding that pursuant to G.L. c. 119, § 39E, the Child Requiring Assistance (CRA) statute, non-attorney school personnel are authorized to file Juvenile Court petitions concerning students. The issue before the court was whether an assistant principal committed unauthorized practice of law when he filed, on behalf of a school district, a petition under the CRA asserting that a twelve-year-old child needed assistance because of his excessive and willful absences.

In April of 2021, a middle school assistant principal and attendance supervisor filed a CRA petition in the Juvenile Court after a twelve-year (12) old child failed to attend school for forty-eight (48) days that school year, and his family had not participated in a truancy prevention program. After the Juvenile Court judge accepted the petition, counsel for the child moved to dismiss the petition on the ground that the assistant principal, as a non-attorney, was engaging in the unauthorized practice of law. The Juvenile Court judge denied the motion to dismiss, reasoning that the Legislature has authorized school officials to file CRA petitions.

Generally, non-lawyers are prohibited from practicing law to protect the public welfare, and courts enjoy broad discretion in defining the practice of law. Nevertheless, courts have traditionally given substantial deference to the views of the legislature on issues of unauthorized practice of law. Under the express language of the CRA, “a school district may initiate an application in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school…” M.G.L. c. 119 § 39E. Similarly, c. 76 § 20 says “Supervisors of attendance… may apply for petitions under the provisions of section thirty-nine E of chapter one hundred and nineteen.” In Lexington Public Schools, the court found that, in passing these laws, the Legislature intended to allow non-lawyers to apply for CRA petitions and that the Juvenile Court should provide materials to help them during their appearance. Further, CRA proceedings are intended to be relatively informal because, in 2012, the Legislature replaced the children in need of services statute with the CRA with the express goal of making the proceedings “less adversarial.” Accordingly, the Court held that school personnel – as well as parents, custodians, and legal guardians – do not engage in the unauthorized practice of law when they file a CRA petition.

However, the Court declined to go any further than the issue presented and did not provide a precise definition of the practice of law, recognizing the difficulty in doing so. Instead, the court reaffirmed previous holdings that a determination whether an individual’s actions constitute “practicing law” is a fact-specific inquiry.

If you have any questions regarding the filing of CRA petitions, please contact us.  We are pleased to assist school administrators in addressing truancy concerns and navigating the CRA petitions process.

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

Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.” The Act requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues.

The program under the Act is scheduled to end on April 1, 2022, or earlier if the Commonwealth determines that the allocated budget is nearing exhaustion. If the program will be terminated before April 1st, the Commonwealth will provide fifteen (15) days’ notice to employers, and establish a run-out period to allow employers to finish their reimbursement submissions. Employers with unionized workforces should review all applicable agreements with unions as those agreements may provide benefits that go beyond April 1, 2022.

The Act operates as follows:

Qualifying Reasons for Leave

Employers are required to provide emergency paid sick leave to employees who are unable to work for one or more of the following reasons:

1. An employee’s need to:
a. self-isolate and care for themself because they have been diagnosed with COVID-19;
b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
c. get or recover from a COVID-19 immunization;

2. An employee’s need to care for a family member who:
a. must self-isolate due to a COVID-19 diagnosis; or
b. needs medical diagnosis, care, or treatment for COVID-19 symptoms;

3. A quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;

4. An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or

5. An employee’s inability to telework due to COVID-19 symptoms.

A “family member” under the Act is defined as an employee’s spouse/domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse, or a person who stood in loco parentis to the employee when such employee was a minor child.

Employers may not require employees to use other types of available paid leave in lieu of this emergency paid sick leave, and may not require an employee to search for or find a replacement worker to cover the time that the employee will miss while on leave provided by the Act.

Increment of Leave

1. For employees who work 40 or more hours per week, the employer must provide 40 hours of emergency paid sick leave.

2. For employees who regularly work less than 40 hours per week, employers must provide leave in the amount equal to the average number of hours that such employee works per week.

3. For employees with varying weekly hours employers must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.

4. For an employee who has not been employed for at least 6 months and has a schedule where weekly hours vary, the employer must provide leave equal to the number of hours per week that the employee reasonably expected to work when hired.

5. The maximum an employer is required to pay an employee per week and seek in reimbursement is $850.00, including costs of benefits.

Employee Requests for Leave

Employers who seek reimbursement from the Commonwealth must require their employees to submit requests for emergency paid sick leave in writing. The state created a form for employers to use in obtaining that information, which is available at: https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program. The form must contain the following information:

1. The employee’s name;

2. The date(s) for which leave is requested and taken;

3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and

4. A statement that because of the COVID-19 related reason the employee is unable to work or telework.

For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

1. The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and

2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

All employee health information gathered is to be treated as confidential, subject to applicable state and federal law. No health information should be disclosed to any third parties without express permission from the employee.

Reimbursement Protocol

In anticipation of applying for reimbursement, the state has advised that employers should collect and retain the following information:

1. The employee’s social security or tax identification number;

2. The employer’s identification number associated with the position from which the employee took leave;

3. The length of the leave (in hours) and wages paid during that leave that are not eligible for federal tax credits, and are not otherwise paid under any other government program or law;

4. Benefits applicable to the employee taking leave; and

5. The number of hours in the employee’s regular schedule, or: (A) if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which such employee takes the emergency paid sick leave, including hours for which such employee took leave of any type; or (B) if the employee did not work over such 6-month period, the number of hours the employee reasonably expected to work at the time that the employee was hired or the average number of hours per week that the employee would normally be  scheduled to work.

Retaliation Prohibition

Employers may not interfere with an employee’s ability to use the emergency paid leave under the Act or retaliate against an employee for exercising the rights described above. This includes considering the use of the emergency sick leave as a negative factor in any employment action or taking an adverse action against an employee because the employee supports the exercise right of another employee.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

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

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation time for individuals exposed to COVID-19. Guidelines now recommend that individuals who are unvaccinated or have not received the vaccine booster quarantine for five (5) days, followed by strict mask use for an additional five (5) days. Individuals who have received their vaccine booster do not need to quarantine following an exposure but should wear a fitted mask for the ten (10) days following the exposure. For all individuals who have been exposed, the CDC advises that best practice is to receive a test five (5) days after the initial exposure.

As part of its update, the CDC also reduced the quarantine period for individuals who have tested positive for COVID-19 but are asymptomatic from ten (10) days to five (5) days. If individuals remain asymptomatic following the five (5) day isolation period, they may leave quarantine if they continue to mask for five (5) days. Massachusetts has adopted CDC guidelines as follows:

• Isolation: Individuals who test positive for COVID-19, regardless of vaccination status, must isolate for five (5) days. If, after those five (5) days individuals remain asymptomatic or symptoms are resolving, they may leave isolation if they continue to mask for five (5) days.
• Quarantine: Individuals exposed to COVID-19 who are asymptomatic and have received the COVID-19 booster or have completed the primary series of the Pfizer or Moderna vaccine within the last six months do not need to quarantine following an exposure. In lieu of quarantine, however, individuals must wear a fitted mask for the ten (10) days following the exposure and, if possible, receive a test five (5) days after the initial exposure.
• Quarantine: Individuals exposed to COVID-19 who are asymptomatic but are unvaccinated or are eligible for the booster and have not yet received it should quarantine for five (5) days, followed by strict mask use for an additional five (5) days. If quarantine is not possible individuals must wear a mask for ten (10) days. If possible exposed individuals should receive a test five (5) days after the initial exposure.

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