by Susan G. Fentin

Massachusetts’ new law requiring staffing agencies to provide temporary workers with more information regarding their employment will go into effect on January 31, 2013.

The Temporary Workers Right to Know Act (H. 4304) requires staffing agencies to provide workers with written notice of the agency’s name, its workers’ compensation carrier, and the name of the worksite employer.

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By Kathy Carlson

A federal appeals court in Massachusetts ruled Thursday that the federal Defense of Marriage Act (DOMA) is unconstitutional because it prevents same-sex married couples from receiving benefits available to heterosexual married couples. The U.S. 1st Circuit Court of Appeals also ruled that in enacting DOMA, the federal government was intruding into domestic relations law, which states have historically regulated.

The appeals court itself acknowledged that the U.S. Supreme Court will have to address the issue, and the ruling won’t take effect pending appeal. The case examined only DOMA’s definition of marriage as being between a man and a woman and not a separate provision saying states need not recognize same-sex marriages legally contracted elsewhere. Even if the ruling went into effect, it would cover only the 1st Circuit, which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

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by Tim Murphy

In 2010, the Massachusetts Legislature made sweeping changes to the statute governing employers’ use of Criminal Offender Record Information (CORI). In addition to prohibiting employers from asking about an applicant’s criminal history on the job application, the amendments called for additional changes to the way employers access CORI data and how they must use and maintain that information. Those remaining changes become effective May 4 and include the following:

• Web-based access for all employers. CORI data soon will be available to all employers via a new Web-based criminal background database called iCORI on May 7. Initially the information will be limited only to felony convictions less than 10 years old and misdemeanor convictions less than five years old; however, all convictions for murder, manslaughter, and certain sexual offenses will appear on the subject’s iCORI report regardless of the age of the conviction.
• Notification requirements. Beginning in May, employers must provide applicants and current employees with a copy of their criminal history reports before either questioning them about the reports or making adverse employment decisions based on the information therein. This requirement applies to all criminal background information, regardless of whether it is obtained through iCORI. Employers that intend to base an adverse decision on a criminal history search also should provide the candidate with a copy of the Department of Criminal Justice Information Services’ document Information Concerning the Process in Correcting a Criminal Record.
• Record-keeping requirements. There are new, strict record-keeping requirements and record-keeping limits for employers that receive CORI data. Employers must obtain signed acknowledgment forms before conducting a search, and the forms must be kept for one year from the date of the request for information.
• Dissemination restrictions. Employers may share CORI data only with persons in their organization with a need to know the information. Employers also must keep a log of all persons with whom the information is shared, and the log must be maintained for a year after the date of dissemination.
• Data storage. Employers are required to store hard copies of CORI data in locked and secured locations. Electronically stored data must be password-protected and properly encrypted. Data may not be stored for more than seven years, and employers must implement effective means for destroying or deleting such information.
• Written policy requirements. Employers that annually conduct five or more criminal background investigations now will need to maintain a written CORI policy. This policy must indicate that the employer will notify applicants of any potential adverse decision based on CORI information, provide applicants with their CORI report and the employer policy, and provide information concerning the process for correcting a criminal record.

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The U.S. Department of Labor (DOL) is focusing “an enormous amount of attention” on misclassifying workers as exempt, non-exempt, and independent contractors and is throwing significant resources at the problem, according to attorney Susan G. Fentin, who spoke at the recent Advanced Employment Issues Symposium in Nashville, Tennessee.

Plus, the DOL and the IRS are teaming up to share data in an effort to find classification errors, says Fentin. But a new IRS program allows qualifying employers a break on the tax liability for past mistakes. Another issue to watch, though: being on the hook for health insurance benefits for workers misclassified as contractors.

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Employers worried that they may have misclassified independent contractors may find relief in a new program from the IRS.

The Voluntary Classification Settlement Program (VCSP) was announced September 21 and offers employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.

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by Susan G. Fentin

Governor Deval Patrick recently signed the Massachusetts Economic Development Bill into law. The law, which is retroactively effective to August 1, includes some well-known provisions that authorize a new state sales tax holiday and grant tax breaks for certain businesses.

The bill, however, also contains several lesser-known provisions, including one that heavily affects employers. Buried more than 100 pages into the Economic Development Bill is a modification of the state Personnel Records Statute that now requires employers to notify an employee when negative information is entered into his or her personnel record.

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Wal-Mart Stores Inc., the world’s largest retailer, has kicked off the holiday shopping season with a costly expense. The company has agreed to pay $40 million in the most recent of a string of wage and hour class-action settlements that have challenged the retailer over the past 12 months.

Last December, the company agreed to pay up to $640 million to settle 63 outstanding federal and state class-action wage and hour suits. This most recent settlement, which will benefit more than 87,000 current and former employees in Massachusetts, was based on allegations similar to those of that landmark December 2009 settlement, but it is not a part of that group of cases.

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