Tag: massachusetts

Massachusetts Cracks Down on Misclassified Independent Contractors

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Economic growth and the power of the Internet have ignited rapid proliferation of startup companies across the US. Services like Uber have typically been filling their ranks with drivers who are employed as independent contractors rather than full employees. However, in Massachusetts the law regarding the classification of workers as independent contractors is relatively strict, and it seems many of these new age business moguls have been cutting corners in the hiring process, which raises some interesting questions about the legality of their employment models.

What Separates an Employee from an Independent Contractor?

proceed with cautionBusiness of all sizes tend to prefer independent contractors for several reasons. Workers hired as IC are not entitled to benefits like health insurance, overtime, and paid sick time or vacation; which saves the employing company a significant amount of money year over year. On the other hand, workers are willing to forego the usual employee benefits and sign on as independent contractors because their paychecks will not have taxes withheld by employers. The lack of immediate taxation has motivated the US Department of Labor, the IRS, and the state of Massachusetts to begin investigating misclassified workers with more zeal.

Massachusetts requires independent contractors to fulfill three conditions in order to be classified as such:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact

(2) the service is performed outside the usual course of the business of the employer

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

To qualify as an independent contractor, all three conditions of the law must be met. The problem is that many companies are hiring “independent contractors” who do not meet one or any of these criteria. This might save money at first, but could also incur heavy financial penalties. For instance, a cable company recently had to pay $1.075 Million for misclassifying cable installers, while a texting service had to hand over $1.3 Million for misclassifying “special agents” who answer text messages from web users.  Misclassifying independent contractors also leaves the business at the mercy of their workers who may be legally savvy enough to pursue a claim in the event of a disagreement.

Businesses Are Getting Busted

pinocchioIn fact, thousands of charges have been brought up against companies for misclassifying employees in response to complaints filed by workers who were seeking to collect unpaid overtime. The US Department of Labor has created a Misclassification Initiative website where workers can file a complaint. Several industries are squarely in the crosshairs as the most notorious misclassification culprits, including construction, nursing, internet services, transportation, cable, security, landscaping, and car services such as valets or limousines.

Several growing companies have begun to alter their hiring model, converting independent contractors into full or part-time employees. Luxe Valet, an on-demand parking service, recently re-classified their workers as employees, though the decision was apparently not motivated by the flood of lawsuits that many employers are facing. There are also a few recent exceptions to the classification rules.

In June, the Supreme Court ruled that the provisions of the real estate licensing and registration scheme outweighs the state law regarding independent contractors. Massachusetts state law was once again overruled in July when a court decided that delivery services are entitled to hire independent contractors as drivers, despite the fact that delivery would fall under “the usual course of business of the employer.”
While Massachusetts law may be stricter than any other state requirements, it does not mean there is no place for independent contractors in the Massachusetts economy. The goal is not to eradicate this type of hiring, but to ensure that it is not being abused. Workers should be wary before signing a contract that would label them as an independent contractor, while companies would do well to remember how much it would cost if their “frugal hiring” strategy were ever discovered by the state.

MA Judge Upholds Sick Time Law

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Massachusetts District Court Judge Rya Zobel recently dismissed a complaint filed by two construction contractors, and six construction employee associations, seeking to challenge the Commonwealth’s new sick time law.

The Massachusetts Earned Sick Leave law went into effect on July 1, 2015 following overwhelming support from voters in the fall elections. The legislation requires employers with more than 11 employees to provide up to 40 hours of accrued paid sick time to workers at their “same hourly rate” of pay. Employers with fewer than 11 employees are obliged to provide the accrued time as unpaid leave.

Sick time law don't be your own doctor

An hour of sick time is accrued for every 30 hours worked under the new sick time law, accumulating to up to 40 hours annually. After 90 days of employment, sick time may be used for an employee’s physical and mental health concerns or similar concerns for a direct family member. Employers providing existing leave benefits, if equal to or more comprehensive than the requirements of the new sick time law, will not be required to change their employee benefits.

Employers and employer organizations, including the Labor Relations Division of Construction Industries of Massachusetts, filed petitions with the court to challenge the law under concerns that it would change their existing union contracts. Citing the potential for pre-existing union negotiations would be negated by the change, they argued that the new state sick time law was preempted by the federal Labor Management Relations Act (LMRA). The LMRA, a federal collective bargaining law, was a core component of their argument against having to abide by the new rules for union employees. They contended that employees with benefits currently negotiated through a collective bargaining agreement should be exempt from the new legislation.

In addition, the plaintiffs brought concerns regarding the definition of “same hourly rate” and posed situations under which the term could cause confusion when calculating a sick time pay rate. Additionally, the plaintiffs requested an amendment stating that the new regulations be preempted by a separate federal law known as the Employee Retirement and Income Security Act (ERISA), which was also denied by the court.

Zobel held in the recent hearing that the LMRA does not preempt the new Massachusetts sick time law. In addition, regarding the interpretation of “hourly rate”, Zobel wrote, “If petitioners’ assumptions about how the law will be implemented and applied transport us from the factual to the hypothetical, then their scant allegations about the agreements with which it will conflict carry us on to the fantastical.”

The plaintiffs were provided with two weeks after the hearing date to file a new complaint on the allegation of the law’s conflict with ERISA.

Solar Debate Heats Up As Massachusetts Raises Net Metering Cap

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The Massachusetts Senate convened last week and responded to on-going pressure by solar supporters with a vote to raise the solar power net metering cap. Net metering, part of the incentives offered to consumers to encourage clean energy development, allows utility users to sell their excess energy back to the grid. The cap represents a percentage of the peak energy usage and limits the amount of energy that solar power users can amass and sell back. Utility companies have argued against attempts to raise the limit, on the basis that consumers without solar power end up paying the difference. The decision to raise the cap was made to help facilitate the state’s goal of developing 1,600 megawatts of solar power by 2020.

The solar energy stipulation was a component of an expansive climate change preparedness bill, sponsored by Senator Benjamin Downing, who believes that the passage of the bill would approximately double the cap. The current cap limits net metering to 4% of a utility’s peak load for private consumers and 5% for public consumers with no limit on residential.

“There’s been a lot of discussion in the theoretical, but not enough in the actual, and the hope is that this is something concrete for people to react to, and I would hope that if the House or if the administration has a different way of going about this that they would put it on paper and we can get to what is our broadly shared goal,” Downing commented to reporters. The bill, which advocates the development of a plan for reacting to the potentially damaging effects of climate change and cutting back on greenhouse gas emissions, is headed to the House of Representatives. Its prospects remain unclear.

Regional utility companies have proposed that Massachusetts legislators support the imposition of a minimum fee on all electrical bills to include customers who generate most or all of their own energy in the cost of maintaining the electrical grid. If the bill is passed, the Massachusetts Department of Public Utilities would have the authority to disperse the costs associated with additional solar energy generated to other providers and service regions, thus relieving any single utility of the burden of the overall expenditures. The legislation would also shrink the gaps between service areas.

Currently, the cap has already been reached by National Grid, with Eversource close behind. According to Downing, the lines drawn between service territories are fairly arbitrary, and solar development in one county has the ability to benefit nearby towns covered under other service zones. Since the net cap was met this spring, green energy advocates have warned that enthusiasm and available solar projects may begin to disappear, putting Massachusetts at risk for losing its leadership position in the solar industry.

Since solar production began in 2007 under Governor Duval Patrick, the state has added 860 megawatts of solar energy to the power grid. With the end goal of 1,600 megawatts still looming, the solar community has been advocating for a lift to the net metering cap. Although unrestricted residential projects continue to move forward, larger projects for private and public properties have been put on hold. Janet Besser, vice president of the New England Clean Energy Center, has stated that while the sudden increase in solar power was not entirely expected, it is a good sign for the future, and her organization will work diligently to convince House lawmakers they would be prudent to encourage solar power expansion in the state by lifting the cap.

California Superbug Trumped by Massachusetts-Made Device

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An outbreak of drug-resistant bacteria at UCLA caused the death of several patients this past year. The source of the “superbug” was traced back to the use of contaminated endoscopes. Officials at UCLA stated that the endoscopes, by their design, are difficult to sanitize and that they followed the manufacturer’s cleaning instructions precisely.

The superbug is called CRE,  is a family of germs that live in the human gastrointestinal tract and have evolved to be resistant to antibiotics. CRE does not always cause an infection in people in fact if someone has a healthy stomach the infection may not occur. CRE becomes dangerous—and potentially fatal—when it reaches the bloodstream or the bladder. It can even cause infection if it is exposed to an open wound on the skin. For patients with other conditions such as cancer, the risk of death increases. Unfortunately, this is precisely the kind of underlying condition patients receiving the endoscopies had at the time the device was used.

Officials at UCLA have stated that the endoscopes are produced by different manufacturers and are all equally difficult to sanitize. Treating CRE is difficult due to its resistance to antibiotics and experts in infectious diseases state that drug companies have stopped producing new antibiotics because there isn’t enough money in the business. The best option, then,  is to prevent the spread of CRE in the first place.

Medford based Langford IC Systems has developed a possible solution to the endoscope threat. The company has been working with Proven Process Medical Devices for more than a decade to create a new medical device cleaning system. The small nooks and crannies of a small device, like an endoscope, pose a serious challenge when trying to assure the removal of microscopic bacteria. Infections can fester and grow despite stringent sanitization processes.

“The machine that we developed would clean, high level disinfect and rinse …off the instrument. It’s way ahead of its time,” said Terry Langford, founder and owner of Langford IC Systems.

Although the device has been approved by the FDA since 2011, there was not much of a market for it until now. With the outbreak of the superbug in California, hospitals have begun to reconsider the way their devices are cleaned. The small crevices and flexible nature of the endoscope make it hard to sterilize manually. The Langford IC cleaning unit is essentially a dishwasher for medical equipment. It pulses water several hundred times a second to flush out bacteria.
So far, a hospital in Missouri has installed the device. With third party proof of concept and an easy install method, the company expects many more requests as the year progresses.

Massachusetts Gambles on Casinos for Economic Pay Day

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Last week marked the opening of the Plainridge Park Casino, the first of potentially many new slot parlors in the state of Massachusetts. Doors officially opened on Wednesday to an eager herd of gamblers, including several special guests and state gambling regulators. The grand opening took place amongst a haze of doubt as many continue to wonder if the casino will provide the kind of economic benefits the area needs.

State leaders have great expectations for the new $250 million slots parlor. Projected revenue for the casino’s first year of operations is approximately $200 million, with $98 million to go back to the state. The town of Plainville has been promised at least $2.3 million annually plus $1.5 million in property taxes.

Vice President of Penn National Gaming, Eric Schippers, is particularly supportive of the new casino’s potential, saying that past investments have “created growth in businesses like restaurants and hotels.” He continues, “Wherever we’ve gone, it’s been a real shot in the arm for the local economy.”

While some industry experts argue that opening more casinos in a market that may be reaching its saturation point does not make much sense; gambling consultant, Steven Norton, asserts that the industry will grow in Massachusetts as casinos become more local and thereby more convenient. Most Massachusetts residents are accustomed to driving out of state to establishments like Twin Rivers.

The hope is that local residents will no longer feel the need to drive out of state and gamble, thereby giving their money to outside municipalities. It is predicted the influx of gamblers to the area should help stimulate the local economy. In addition, Schippers commented that Penn National has also spread the benefits of gambling operations to local businesses via cross-promotional agreements.

Others are not so certain the effect the casino will have warrants so much optimism. Clyde Barrow, former UMass professor who has studied gambling extensively, notes that most gambling patrons will spend their money on gas and fast food—and not much else. Most of the economic stimulus will come from the 500 or so employees the casino will employ, Barrow predicted.

Undoubtedly there will be an influx of new money to the Plainville area as the casino gets up and running. The casino is expected to attract upwards of 6,000 patrons a day and, if business is good, it could cause a ripple effect of new businesses migrating to the area.