Massachusetts Employment Law Update — May 2019

Massachusetts

Commissioned, Retail Salespeople and Overtime or Sunday Pay

On May 8, 2019, the Massachusetts State Supreme Court held in Sullivan vs. Sleepy LLC (SJC-12542) that retail salespeople who are paid entirely in commissions or draws (i.e., advances on commissions) are entitled to additional overtime or Sunday pay (pursuant to overtime law at Mass. Gen. Laws Ch. 151, § 1A and Sunday pay law at Mass. Gen. Laws ch. 136, § 6(50)) to be calculated at one and one-half times the minimum wage in each instance.

According to the court’s ruling, draws and commissions cannot be retroactively allocated as hourly and overtime wages and Sunday pay even if these draws and commissions equaled or exceeded the minimum wage for the employees’ first 40 hours of work and one and one-half times the minimum wage for all hours worked over 40 hours or on Sunday. Rather, the employees are entitled to separate and additional payments of one and one-half times the minimum wage for every hour the employees worked over 40 hours or on Sunday.

The ruling took effect on May 8, 2019.

Read the case

Exemption and Workforce Notification Deadlines Extended

On May 1, 2019, in response to feedback from the 12 public listening sessions held throughout Massachusetts, as well as engagement efforts with stakeholders, the Department of Family and Medical Leave (DFML) announced changes to family and medical leave exemption deadlines.

Exemption Deadline Extended for Quarter 1

The DFML’s current guidance requires that exemptions for private plans must be approved in the quarter prior to the quarter in which they will go into effect. For Quarter 1 only, however, the deadline to file for a private plan exemption that will be in effect for first quarter contributions for paid family and medical leave has been moved from June 30 to September 20, 2019. This will allow employers additional time to contemplate private plan options. Going forward, the DFML will continue to accept applications on a rolling basis; however, applications must be approved in the quarter prior to the quarter in which they go into effect.

Contributions to PFML begin on July 1, 2019. The September 20, 2019 extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied, the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward. Therefore, the DFML recommends that employers consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.

Employer Notice to Employees

The deadline for employer notice to employees has been extended from May 31 to June 30, 2019. The notice, which may be provided electronically, must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information.

The DFML is continuing to accept comment on draft regulations regarding paid family and medical leave and plans to announce two additional listening sessions in May 2019.

Read the announcement

PFML Private Plan Exemption Process Available Online

On April 29, 2019, the Massachusetts Department of Family and Medical Leave announced that its private plan exemption process is available online for businesses in Massachusetts with paid family and medical leave plans offering benefits that meet or exceed those provided by the Commonwealth’s Paid Family and Medical Leave (PFML) law.

The updated exemption website includes:

  • Information on required documentation.
  • Information on how to calculate the required surety bond.
  • Links to details from the Massachusetts Department of Revenue on how to file for an exemption from making family or medical leave contributions to the Department of Family and Medical Leave with MassTaxConnect.

Applications for exemptions for private plans must be submitted to the Massachusetts Department of Revenue’s web-based application MassTaxConnect by June 30, 2019 for the first quarter. Contributions to the program for those not receiving an exemption will begin on July 1, 2019.

See the exemption website