Recent Legislation in Massachusetts Affects Employers

In the waning days of the legislative session, the Massachusetts legislature passed two bills that will have an impact on employers.

Contingent Workers

A new statute will require staffing agencies to provide temporary workers with more information regarding their employment status. On August 6, Governor Deval Patrick signed H. 4304, the “Temporary Workers Right to Know Act,” into law, amending Mass. Gen. L. ch. 149, § 159C. The statute mandates that staffing agencies provide workers with written notice of the agencies’ name, its workers compensation carrier, and the name of the worksite employer. The law also requires that the staffing agency give the temporary workers a description of the job to which they are being assigned and a statement of any costs for clothing and equipment that they will be responsible for providing at the assigned jobsite. Temporary workers will also be entitled to written notice of their rate of pay, payday, starting and ending times, and the expected length of their assignment. Staffing agencies will be prohibited from charging workers for registering with the agency, for the cost of any criminal background check that might be required by the company to which they are assigned, or for any other goods or services that might cause their pay to fall below the minimum wage. Staffing agencies and worksite employers will be permitted to charge for financial transactions, drug screenings, or transportation to the job, but no more than the actual cost of those services. Transportation to the jobsite cannot exceed 3% of the employee’s daily pay. Professional, administrative, and secretarial employees are exempted from the new law. The state Department of Labor will be responsible for implementing regulations on the new statute, which takes effect in January 2013 and will affect an estimated 25,000 temporary workers in the state.

New Health Law Bans Mandatory Overtime for Hospital Nurses and Makes Other Changes in Massachusetts Health Care Reform

On the same day that he signed H. 4304 into law, Governor Patrick also signed a new health care cost containment bill (succinctly entitled “An Act Improving the Quality of Health Care and Reducing Costs Through Increased Transparency, Efficiency and Innovation”) that includes a ban on requiring nurses to work overtime, the common practice among hospitals in Massachusetts. The provision, an amendment to Mass. Gen. L. ch. 111, was part of the major health care cost reform measure passed by the Massachusetts legislature in the waning days of the legislative session. The relevant language in the statute says that hospitals in Massachusetts “shall not require a nurse to work mandatory overtime except in the case of an emergency situation where the safety of the patient requires its use and when there is no reasonable alternative.” Mandatory overtime is defined as hours beyond a nurse’s predetermined, regular schedule, and in no case may the nurse’s regularly scheduled hours exceed 12 in a 24 hour period. Even in the event of an emergency exception to the prohibition against overtime, a nurse may not work more than 16 hours in a 24 hour period, and any nurse who works 16 consecutive hours must be given eight consecutive hours off before his/her next shift. The Massachusetts Nurses Association lobbied hard for the inclusion of the provision in the health care cost reform legislation, claiming that mandatory overtime is “indefensible” by any patient safety standard and that hospitals had been increasing mandatory overtime in anticipation of the cost controls that are part of the reform measure. The union argued that this measure would protect patients and save money by preventing mistakes, errors, and complications resulting from RNs being forced to work excessive hours.

In addition, the Act contained some additional provisions that amend the Massachusetts “Fair Share” contribution rules. The changes should be helpful to employers who are hoping to avoid the “Fair Share” penalties imposed by the original health care reform act. Currently, all full-time employees who are not enrolled in an employer-sponsored health plan are included in the “Contributing Employer” calculation, which is used to determine whether a sufficient percentage of employees are enrolled in the plan. If the percentage of enrolled employees is lower than figures called for by the state, the employer may be subject to a “Fair Share” penalty. The provisions of the new Act provide that, if employees decline coverage through their employer because they are covered under another qualifying plan, either through their spouse or otherwise, those employees will no longer be factored in when making a “Contributing Employer” calculation. In addition, Section 141 of the Act changes the size of employers who are required to provide health insurance. The original health care reform act subjected employers of 11 or more full-time equivalent employees to the obligations of the Act; the bill recently signed into law raises that minimum number of employees to 21 full-time equivalent employees. Both of these provisions, which take effect July 1, 2013, should be helpful to employers in Massachusetts.

If you have any questions about these amendments, please feel free to contact any of the attorneys at Skoler, Abbott & Presser, P.C.