- Insights
- Podcast episodes
From Lawyer to Employer | Season 4, Episode 6: What Massachusetts Employers Need to Know in 2026
From Lawyer to Employer: A Shipman Podcast
Massachusetts continues to be one of the most active, and technical, states for employment law compliance. In this episode of From Lawyer to Employer, host Dan Schwartz is joined by partner Jarad Lucan to break down the most important developments impacting employers with Massachusetts-based employees (or operations spanning both Massachusetts and Connecticut).
They cover practical, real-world guidance on:
- Wage & hour compliance and common Wage Act pitfalls
- Independent contractor classification and the Massachusetts “ABC” test
- Non-compete restrictions, and why non-solicit/confidentiality agreements may be more reliable
- Paid Family & Medical Leave coordination and accommodation trends
- Compensation best practices and the growing momentum behind pay transparency
If your organization hires, operates, or expands in Massachusetts, this episode provides concrete steps to help you reduce risk and stay ahead of rapidly evolving workplace rules.
Welcome to from Lawyer to Employer, a Shipman podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Apple, Spotify, or wherever you listen. Thank you for joining us, and we hope you enjoyed today's episode.
Dan Schwartz: And welcome back to a new episode of From Lawyer to Employer, a Shipman & Goodwin podcast. I am your host, Dan Schwartz, a partner in the Labor and Employment and Education Group here at Shipman on today's podcast, we are going to focus on Massachusetts. As some of you might have seen our firm recently opened up an office up in Boston, and we've got a lot of new folks who are listening in from Massachusetts.
So. I thought we would talk about what's new, what's been changing, and what employers who may have employees on both sides of Connecticut and Massachusetts ought to be thinking about. So on today's podcast, I've brought in one of my colleagues and one of our go-to’s on Massachusetts workplace issues, Jarad Lucan to join us. Jarad, great to have you back.
Jarad Lucan: Thanks, Dan. Great to be here. So, I would say, just to start off that Massachusetts is always active on the employment front, as you well know, and as our folks in Massachusetts know. But our plan today is to highlight some of the most impactful developments that we've seen over the last few years and the hot topics that we're hearing from or seeing with clients. And most importantly, what to do about them.
Dan Schwartz: Yeah, that sounds like a great plan. So sort of a roadmap for listeners here. I think we're gonna talk a little bit about some of the wage and hour trends, non-competes that Massachusetts has been dealing with in terms of the statutes, some leave issues and some pay transparency laws that have come into play as well.
So I suppose that's probably a good jumping off. Points. So let's talk about, uh, wage and hour first because Jarad, as you know, wage an Hour continues to be a place where technical mistakes can get pretty expensive in Massachusetts. So what are we seeing and what should employers be paying attention to?
Jarad Lucan: I think there's a few things that employers need to be paying attention to.
First of all, the, the Massachusetts Wage Act remains pretty unforgiving, right? So late and underpaid wages, including things like earned commissions or unused vacation when they're due under a policy, can trigger all sorts of things, including mandatory multiple damages and potentially attorney's fees if claims are brought.
So we need to be careful of those. One thing to sort of learn from that and to look at is making sure that payroll timing is tightened up. That commission plans, if you have them, are written with clarity and that any sort of terminal pay is done and calculated in a timely manner.
Dan Schwartz: Yeah, that's a great point.
And really having clean record keeping, particularly now at the relative start of the year, I think is uh, a great way to start the year off clean with sort of clean time entries, meal practices, and paying for those hours worked. So what else are we seeing? You mentioned a couple things. What else are we seeing on the wage and hour front?
Jarad Lucan: So one of the big things we wanna be looking at here is the independent contractor and classification of whether or not someone is an independent contractor or not. That's always a hot topic to look at in Massachusetts. I think what's really key here for employers, it's understanding that the test for whether or not a worker is an independent contractor or not really is a much stricter test than what we might see under federal law.
So the, the roles have to pass muster under the Massachusetts ABC test, right? Employers should really be looking at revisiting their contractor arrangements, particularly if we're talking about arrangements in hybrid situations where there seems to be supervision that might look more like an employee.
I think we really wanna look at those. And the safest play is to sort of do an audit of those roles and touch your core business that are closely controlled on a day-to-day basis. Because when they are sort of core to your business and you are having that sort of day-to-day interaction, they start to look more like employees are not. So having a real good look at that's important.
Dan Schwartz: Yeah, I think an easy test is if, uh, someone on your staff calls someone a 1099 employee, that's probably a good, uh, time to call the lawyers because there is no such thing as a 1099 employee. So you mentioned three things. So what else should employers be thinking about in this sort of area?
Jarad Lucan: I think in the wage now front the last thing I think I would be thinking about is the expense reimbursements and remote work, right? And how that looks. So, Massachusetts doesn't have a blanket reimbursement statute like some states do, but if employees do incur necessary business expenses, right? Either deducting or failing to cover them can create a minimum wage and over time exposure.
So, if you're thinking about home internet stipends for heavy remote work, or equipment costs, or travel between client sites. You wanna make sure you're spelling out in your reimbursement policy and keeping that current.
Dan Schwartz: Yeah, so all good points. And I think the bottom line as I'm hearing from you is to sort of like clean up your timekeeping practices and keep sort of clear commission and reimbursement policies - all, all those types of things can start a year strong.
So, alright, let's switch gears. Non-competes and mobility. And obviously on a national level, we had the FTC proposing a ban and then the ban getting put on hold from a court and now a change in administration. But you know, that hasn't prevented some states like Massachusetts from implementing its own regime, right?
Jarad Lucan: Yeah, I think that's right. We see a lot going on at the federal level, sort of back and forth about what it's, what's allowed or not. But I think for Massachusetts, there's some really unique requirements for non-competes with employees, what they cover, who they bind, when, and how to present them, and consideration they require.
So employers should confirm that non-competes are used sort of sparingly, right? You don't wanna overuse them because they can't cover every employee and are reserved for the roles where they are truly needed. Why do we need this non-compete? What are we trying to protect? On the other hand, non-solicit and confidentiality agreements remain essential, right?
They're often actually more reliable in terms of their enforceability, and those are ways to really protect customers and sensitive information without running into any of the issues you might face with a non-compete agreement.
Dan Schwartz: Yeah. And I think for those who are sort of reviewing their non-competes, there are really some technical requirements that I think would probably bore people on a podcast.
We don't want anyone falling asleep while they're driving, but I think non-competes, in particular in Massachusetts, ought to be reviewed. And I think your point that you just made is that the, the confidentiality and non-solicit, whether it's non-solicit of employees or customers, can have a lot of this same effect as a non-compete, but maybe more palatable. And I think could be potentially used more broadly in some cases as well, depending on what you're trying to protect.
Dan Schwartz: Yeah. So, um, what's the sort of takeaway here for employers about these restrictive covenants? What are some, some things that we, we can share with employers here?
Jarad Lucan: Well, I think timing and transparency matter when you're talking about these, right? So if you wanna present any restrictive covenant early in an offer process, right? So, if it's part of the onboarding process or part of the offer that you're making to an employee, it should be part of that. They should be written in plain language.
Not everybody is an attorney and the folks that you might wanna have them apply to probably don't have law degrees at all times. So the way they can be written and understood in plain language and so people know what their, what those covered makes a lot of sense. And whether or not there needs to be certain consideration for them, right?
Particularly if you're gonna provide them after an employment starts Second, I think you wanna be really careful about what a choice of law provision or choice of foreign would be, right? What law gonna apply to this sort of restrictive covenant or where any sort of matter related to it can be brought.
That gets to be a real issue, I think, in Massachusetts and falls under a lot of scrutiny. So don't just assume that because you picked some other law state where you might have another office or not, you're gonna be able to sidestep any requirements from Massachusetts, right? Many courts would allow that where Massachusetts has a strong public policy and interest in these types of things.
Dan Schwartz: Yeah. Uh, good point. I, I think we've really seen the rise of various states taking a lead role, and Massachusetts has, uh, certainly entered the equation here and it uses terms like garden leave as well, that you.
Typically find in sort of European companies but have incorporated it here. So I, I think the biggest takeaway is probably, you know, get those non-competes and restrictive covenants reviewed. Make sure that they are up to date and make sure that you. Apply them when employees leave. You don't just want to have them as paper tigers because when you really do need to enforce it, you've gotta show, you have been consistent about that as well.
So, alright, let's switch gears now. I can't say the next one is one of my favorite topics, but I, I think it's gotten very technical and that is the sort of. Subject of leave laws and accommodations, which really have been top of mind late.
So I know there have been a couple of things shifting for a Massachusetts employers. What stands out for you in this area?
Jarad Lucan: Yeah, sure. And I, I would sort of echo what you said. I think as a practitioner, most of the questions we get from employee employers are really related to leave and the interaction of certain leave laws, accommodations, flexibility within the workplace.
But from a standpoint of certain trends to be aware of in Massachusetts, I'd say first there's the state's paid family medical leave program that has sort of really evolved and matured. And so the contribution rates and benefit rules can shift from year to year. So employers should be aware of that.
Anyone on their HR team need to sort of do an annual compliance check, write, update notices, write any required notices that need to go out to employees about any of these family leave programs. Confirm that you're doing the correct payroll deductions for everyone. That are matching their current rates.
Uh, if there's rate changes in terms of the every year to year, and make sure that manager managers understand how the paid family medical leave interacts with things like PTO or earned sick time or short-term disability and the overlap with a paid family medical leave program and any other family medical leave program, whether it be state or federal.
Dan Schwartz: Yeah, coordinating these various benefit points I think is a real pain point for employers because you shouldn't really have to be an expert in this area, and yet it really has gotten technical with a lot of overlapping laws to, to think about. So I, I can appreciate that. I, you know, one of the other overlapping laws.
That we were thinking about though is not just leave, but accommodation, which can sometimes be, be, leave in a, in a few instances, but accommodations continue to be be an issue, right.
Jarad Lucan: Oh, absolutely. Right. And this is one of those another layers to be considering, right? Whether you're look thinking about family medical leave or PTO.
But the other question is to your point, if there's any sort of disability related accommodation that needs to be made, right? Is leave one of those things that becomes reasonable or not? Right? And I think all of that always starts with on an individualized basic, right? Having more of that interactive dialogue.
We're seeing a lot more of that particularly sort of post pandemic, although we're a little bit farther past the pandemic, but. Folks coming outta that with some mental health issues, right? Or hybrid schedules that we're dealing with, job restructuring. All of those things might come up as potential things that need to be discussed on an interactive basis for any kind of accommodation key to.
Anytime you're actor interacting with employees, particularly on an accommodation standpoint, is making sure you're documenting those conversations, right? What have we talked about? What's reasonable? What was requested, why it didn't work, why it did work? Limitations on certain accommodations. You know, there's always talk about whether or not a remote work or a hybrid work situation would be an accommodation or not.
It really depends on the job, right? The job will sort of dictate, and the essential functions of that role will dictate whether or not that's reasonable and for what period of time. I will say on that front, obviously we have to accommodate the essential functions of the job and not eliminate them, but provide someone with the ability to perform those essential functions.
But I think you don't want to as an employer, 'cause I think this happens pretty often. You don't wanna make a snap judgment about what an essential function is, right? Without really understanding and checking, particularly from a manager standpoint, without checking and understanding the realities of the role so that we can establish what really is and isn't truly an essential function of that position.
Dan Schwartz: Yeah, good point there. And you know, there are lots of other Massachusetts related statutes to think about earn sick time, the small Necessities Act as well. So, you know, I think as employers delve into this and continue to build out their knowledge, uh. Base. I think it's not just a one size fits all, but really a all sizes, fits all approach of, of understanding how these various statutes interact on leave laws.
So maybe with that, I'm gonna hit one more topic and that is pay because we have been seeing sort of a wave of. Transparency and equity requirements around the country. And you know, Massachusetts has not been immune from that wave, right.
Jarad Lucan: Exactly right. I think Massachusetts equal pay laws have long focused on the comparable work, right?
And the limits to use salary history on any kind of decision that's being made. There's been some recent momentum to add two more practical things that people need to think about, right? First. Is the pay ranges, right? You should really have published ready to Go job descriptions with the pay ranges, even though they're not yet mandated to be at that point.
Having defensible ranges and posting them consistently reduces your risk and build sort of trust, right, among the folks that you're hiring and the people that are employed. Second, you know, something that would be looking at in this area as potentially conducting privileged pay audits. So doing so in a privileged way that can identify drivers of pay, whether it's tenure, experience, education, performance, and confirm that they're sort of documented and applied consistently, right?
So you're not making decisions that are not based on these sort of more neutral ways of determining whether or not a pay is appropriate or not, and it's not being based on something that would, might be be considered discriminatory.
Dan Schwartz: Yeah, and I think we've seen if you do make changes based on this audit, make sure you're communicating in a sort of clear and cohesive fashion so that you know, managers can explain their pay decisions in a legitimate upfront way.
I think, you know, people normally like to understand where they are on the pay scale and you know, with a new year that's really on the top of everyone's minds with pay changes that happen in the first quarter, bonuses, all those types of things, I think it just gives employers in Massachusetts and elsewhere a reason to really look at this one other area I wanted to ask you about, uh, Jarad was on commissions, you know, it's the start of the year sales plans, other commission plans are really getting kicked off. Is there anything that employers ought to think about when thinking about commission plans?
Jarad Lucan: Sure. I mean, I think I said earlier on our topics, but make sure that the plans are written, signed, and that they're sort of crystal clear, right?
In terms of when commissions are earned, right, what happens upon termination if there's, you know, in terms of what that commission, whether it gets paid or whether there's been sort of an advancement on that commission of some kind, how that gets repaid ambiguity here, right? If you have ambiguous language within any kind of pay or commission plan that can really turn into some exposure quickly under the Wage Act. So, I think we wanna be really careful and carefully craft and make it really understandable and crystal clear in terms of what we're doing on those commission plans.
Dan Schwartz: Yeah, that's great, Jarad. I I appreciate that. So we're, we're running out of time and I know we covered a lot here.
So any sort of rapid fire takeaways that we wanna leave employers with here.
Jarad Lucan: Sure. I would say, you know, you wanna just be thinking about the, the basics, right? Timekeeping, final pay, commission plans, make sure that they're all being done accurately, right? You wanna reassess the role of any contractor, you have to make sure it's fitting that higher standard under Massachusetts, right?
That ABC test that we talked about, you want to look at right sizing any sort of mobility strategy you might have with strong confidentiality and non-solicit agreements. And then make sure that if you're gonna use non-compete that you do so sparingly and make sure it's compliant with what Massachusetts laws are requiring.
As we indicated earlier, they're pretty stringent on the non-competes. Look at your and refresh, potentially your leave and accommodation practices, including coordinating with other laws like the paid family medical leave. And make sure that you're building out sort of a compensation hygiene, right?
Ranges, documentation, periodic pay audits, and bring discipline to hiring tech and background checks, right? All of those types of things I think are, are things that you wanna be looking at.
Dan Schwartz: Yeah, well said. And, and I think my message for employers is pretty simple, which is, you know, these are in some ways avoidable mistakes.
Uh, not everything, obviously, that's what we're here for, but I think if you take a few steps now, you can really prevent more expensive problems later. So, Jarad, thanks for joining.
Jarad Lucan: Absolutely. Thanks Dan. It was a great conversation.
Dan Schwartz: It was great and, and really if you have anything up in Massachusetts, don't hesitate to call upon us as a resource.
We're really happy to help share our insights. So, uh, with that, it will bring us to a conclusion of another episode of From Lawyer to Employer, but never fear. We will be back in a few weeks in your inbox with a new episode. If you found this episode helpful, feel free to share it with your HR colleagues or give us a review on Apple Podcast or Spotify.
Would love to hear from you as well. So feel free to email me at DSchwartz@goodwin.com with any comments, feedback, or even a topic for an upcoming podcast. And with that, we will see you around next time. Take care.
Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
Host: This podcast is produced and copyrighted by Shipman and Goodwin, LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, apple Podcast, or wherever you listen.
We hope you'll join us again.
Dan Schwartz: Yeah, that sounds like a great plan. So sort of a roadmap for listeners here. I think we're gonna talk a little bit about some of the wage and hour trends, non-competes that Massachusetts has been dealing with in terms of the statutes, some leave issues and some pay transparency laws that have come into play as well.
So I suppose that's probably a good jumping off. Points. So let's talk about, uh, wage and hour first because Jarad, as you know, wage an Hour continues to be a place where technical mistakes can get pretty expensive in Massachusetts. So what are we seeing and what should employers be paying attention to?
Jarad Lucan: I think there's a few things that employers need to be paying attention to.
First of all, the, the Massachusetts Wage Act remains pretty unforgiving, right? So late and underpaid wages, including things like earned commissions or unused vacation when they're due under a policy, can trigger all sorts of things, including mandatory multiple damages and potentially attorney's fees if claims are brought.
So we need to be careful of those. One thing to sort of learn from that and to look at is making sure that payroll timing is tightened up. That commission plans, if you have them, are written with clarity and that any sort of terminal pay is done and calculated in a timely manner.
Dan Schwartz: Yeah, that's a great point.
And really having clean record keeping, particularly now at the relative start of the year, I think is uh, a great way to start the year off clean with sort of clean time entries, meal practices, and paying for those hours worked. So what else are we seeing? You mentioned a couple things. What else are we seeing on the wage and hour front?
Jarad Lucan: So one of the big things we wanna be looking at here is the independent contractor and classification of whether or not someone is an independent contractor or not. That's always a hot topic to look at in Massachusetts. I think what's really key here for employers, it's understanding that the test for whether or not a worker is an independent contractor or not really is a much stricter test than what we might see under federal law.
So the, the roles have to pass muster under the Massachusetts ABC test, right? Employers should really be looking at revisiting their contractor arrangements, particularly if we're talking about arrangements in hybrid situations where there seems to be supervision that might look more like an employee.
I think we really wanna look at those. And the safest play is to sort of do an audit of those roles and touch your core business that are closely controlled on a day-to-day basis. Because when they are sort of core to your business and you are having that sort of day-to-day interaction, they start to look more like employees are not. So having a real good look at that's important.
Dan Schwartz: Yeah, I think an easy test is if, uh, someone on your staff calls someone a 1099 employee, that's probably a good, uh, time to call the lawyers because there is no such thing as a 1099 employee. So you mentioned three things. So what else should employers be thinking about in this sort of area?
Jarad Lucan: I think in the wage now front the last thing I think I would be thinking about is the expense reimbursements and remote work, right? And how that looks. So, Massachusetts doesn't have a blanket reimbursement statute like some states do, but if employees do incur necessary business expenses, right? Either deducting or failing to cover them can create a minimum wage and over time exposure.
So, if you're thinking about home internet stipends for heavy remote work, or equipment costs, or travel between client sites. You wanna make sure you're spelling out in your reimbursement policy and keeping that current.
Dan Schwartz: Yeah, so all good points. And I think the bottom line as I'm hearing from you is to sort of like clean up your timekeeping practices and keep sort of clear commission and reimbursement policies - all, all those types of things can start a year strong.
So, alright, let's switch gears. Non-competes and mobility. And obviously on a national level, we had the FTC proposing a ban and then the ban getting put on hold from a court and now a change in administration. But you know, that hasn't prevented some states like Massachusetts from implementing its own regime, right?
Jarad Lucan: Yeah, I think that's right. We see a lot going on at the federal level, sort of back and forth about what it's, what's allowed or not. But I think for Massachusetts, there's some really unique requirements for non-competes with employees, what they cover, who they bind, when, and how to present them, and consideration they require.
So employers should confirm that non-competes are used sort of sparingly, right? You don't wanna overuse them because they can't cover every employee and are reserved for the roles where they are truly needed. Why do we need this non-compete? What are we trying to protect? On the other hand, non-solicit and confidentiality agreements remain essential, right?
They're often actually more reliable in terms of their enforceability, and those are ways to really protect customers and sensitive information without running into any of the issues you might face with a non-compete agreement.
Dan Schwartz: Yeah. And I think for those who are sort of reviewing their non-competes, there are really some technical requirements that I think would probably bore people on a podcast.
We don't want anyone falling asleep while they're driving, but I think non-competes, in particular in Massachusetts, ought to be reviewed. And I think your point that you just made is that the, the confidentiality and non-solicit, whether it's non-solicit of employees or customers, can have a lot of this same effect as a non-compete, but maybe more palatable. And I think could be potentially used more broadly in some cases as well, depending on what you're trying to protect.
Dan Schwartz: Yeah. So, um, what's the sort of takeaway here for employers about these restrictive covenants? What are some, some things that we, we can share with employers here?
Jarad Lucan: Well, I think timing and transparency matter when you're talking about these, right? So if you wanna present any restrictive covenant early in an offer process, right? So, if it's part of the onboarding process or part of the offer that you're making to an employee, it should be part of that. They should be written in plain language.
Not everybody is an attorney and the folks that you might wanna have them apply to probably don't have law degrees at all times. So the way they can be written and understood in plain language and so people know what their, what those covered makes a lot of sense. And whether or not there needs to be certain consideration for them, right?
Particularly if you're gonna provide them after an employment starts Second, I think you wanna be really careful about what a choice of law provision or choice of foreign would be, right? What law gonna apply to this sort of restrictive covenant or where any sort of matter related to it can be brought.
That gets to be a real issue, I think, in Massachusetts and falls under a lot of scrutiny. So don't just assume that because you picked some other law state where you might have another office or not, you're gonna be able to sidestep any requirements from Massachusetts, right? Many courts would allow that where Massachusetts has a strong public policy and interest in these types of things.
Dan Schwartz: Yeah. Uh, good point. I, I think we've really seen the rise of various states taking a lead role, and Massachusetts has, uh, certainly entered the equation here and it uses terms like garden leave as well, that you.
Typically find in sort of European companies but have incorporated it here. So I, I think the biggest takeaway is probably, you know, get those non-competes and restrictive covenants reviewed. Make sure that they are up to date and make sure that you. Apply them when employees leave. You don't just want to have them as paper tigers because when you really do need to enforce it, you've gotta show, you have been consistent about that as well.
So, alright, let's switch gears now. I can't say the next one is one of my favorite topics, but I, I think it's gotten very technical and that is the sort of. Subject of leave laws and accommodations, which really have been top of mind late.
So I know there have been a couple of things shifting for a Massachusetts employers. What stands out for you in this area?
Jarad Lucan: Yeah, sure. And I, I would sort of echo what you said. I think as a practitioner, most of the questions we get from employee employers are really related to leave and the interaction of certain leave laws, accommodations, flexibility within the workplace.
But from a standpoint of certain trends to be aware of in Massachusetts, I'd say first there's the state's paid family medical leave program that has sort of really evolved and matured. And so the contribution rates and benefit rules can shift from year to year. So employers should be aware of that.
Anyone on their HR team need to sort of do an annual compliance check, write, update notices, write any required notices that need to go out to employees about any of these family leave programs. Confirm that you're doing the correct payroll deductions for everyone. That are matching their current rates.
Uh, if there's rate changes in terms of the every year to year, and make sure that manager managers understand how the paid family medical leave interacts with things like PTO or earned sick time or short-term disability and the overlap with a paid family medical leave program and any other family medical leave program, whether it be state or federal.
Dan Schwartz: Yeah, coordinating these various benefit points I think is a real pain point for employers because you shouldn't really have to be an expert in this area, and yet it really has gotten technical with a lot of overlapping laws to, to think about. So I, I can appreciate that. I, you know, one of the other overlapping laws.
That we were thinking about though is not just leave, but accommodation, which can sometimes be, be, leave in a, in a few instances, but accommodations continue to be be an issue, right.
Jarad Lucan: Oh, absolutely. Right. And this is one of those another layers to be considering, right? Whether you're look thinking about family medical leave or PTO.
But the other question is to your point, if there's any sort of disability related accommodation that needs to be made, right? Is leave one of those things that becomes reasonable or not? Right? And I think all of that always starts with on an individualized basic, right? Having more of that interactive dialogue.
We're seeing a lot more of that particularly sort of post pandemic, although we're a little bit farther past the pandemic, but. Folks coming outta that with some mental health issues, right? Or hybrid schedules that we're dealing with, job restructuring. All of those things might come up as potential things that need to be discussed on an interactive basis for any kind of accommodation key to.
Anytime you're actor interacting with employees, particularly on an accommodation standpoint, is making sure you're documenting those conversations, right? What have we talked about? What's reasonable? What was requested, why it didn't work, why it did work? Limitations on certain accommodations. You know, there's always talk about whether or not a remote work or a hybrid work situation would be an accommodation or not.
It really depends on the job, right? The job will sort of dictate, and the essential functions of that role will dictate whether or not that's reasonable and for what period of time. I will say on that front, obviously we have to accommodate the essential functions of the job and not eliminate them, but provide someone with the ability to perform those essential functions.
But I think you don't want to as an employer, 'cause I think this happens pretty often. You don't wanna make a snap judgment about what an essential function is, right? Without really understanding and checking, particularly from a manager standpoint, without checking and understanding the realities of the role so that we can establish what really is and isn't truly an essential function of that position.
Dan Schwartz: Yeah, good point there. And you know, there are lots of other Massachusetts related statutes to think about earn sick time, the small Necessities Act as well. So, you know, I think as employers delve into this and continue to build out their knowledge, uh. Base. I think it's not just a one size fits all, but really a all sizes, fits all approach of, of understanding how these various statutes interact on leave laws.
So maybe with that, I'm gonna hit one more topic and that is pay because we have been seeing sort of a wave of. Transparency and equity requirements around the country. And you know, Massachusetts has not been immune from that wave, right.
Jarad Lucan: Exactly right. I think Massachusetts equal pay laws have long focused on the comparable work, right?
And the limits to use salary history on any kind of decision that's being made. There's been some recent momentum to add two more practical things that people need to think about, right? First. Is the pay ranges, right? You should really have published ready to Go job descriptions with the pay ranges, even though they're not yet mandated to be at that point.
Having defensible ranges and posting them consistently reduces your risk and build sort of trust, right, among the folks that you're hiring and the people that are employed. Second, you know, something that would be looking at in this area as potentially conducting privileged pay audits. So doing so in a privileged way that can identify drivers of pay, whether it's tenure, experience, education, performance, and confirm that they're sort of documented and applied consistently, right?
So you're not making decisions that are not based on these sort of more neutral ways of determining whether or not a pay is appropriate or not, and it's not being based on something that would, might be be considered discriminatory.
Dan Schwartz: Yeah, and I think we've seen if you do make changes based on this audit, make sure you're communicating in a sort of clear and cohesive fashion so that you know, managers can explain their pay decisions in a legitimate upfront way.
I think, you know, people normally like to understand where they are on the pay scale and you know, with a new year that's really on the top of everyone's minds with pay changes that happen in the first quarter, bonuses, all those types of things, I think it just gives employers in Massachusetts and elsewhere a reason to really look at this one other area I wanted to ask you about, uh, Jarad was on commissions, you know, it's the start of the year sales plans, other commission plans are really getting kicked off. Is there anything that employers ought to think about when thinking about commission plans?
Jarad Lucan: Sure. I mean, I think I said earlier on our topics, but make sure that the plans are written, signed, and that they're sort of crystal clear, right?
In terms of when commissions are earned, right, what happens upon termination if there's, you know, in terms of what that commission, whether it gets paid or whether there's been sort of an advancement on that commission of some kind, how that gets repaid ambiguity here, right? If you have ambiguous language within any kind of pay or commission plan that can really turn into some exposure quickly under the Wage Act. So, I think we wanna be really careful and carefully craft and make it really understandable and crystal clear in terms of what we're doing on those commission plans.
Dan Schwartz: Yeah, that's great, Jarad. I I appreciate that. So we're, we're running out of time and I know we covered a lot here.
So any sort of rapid fire takeaways that we wanna leave employers with here.
Jarad Lucan: Sure. I would say, you know, you wanna just be thinking about the, the basics, right? Timekeeping, final pay, commission plans, make sure that they're all being done accurately, right? You wanna reassess the role of any contractor, you have to make sure it's fitting that higher standard under Massachusetts, right?
That ABC test that we talked about, you want to look at right sizing any sort of mobility strategy you might have with strong confidentiality and non-solicit agreements. And then make sure that if you're gonna use non-compete that you do so sparingly and make sure it's compliant with what Massachusetts laws are requiring.
As we indicated earlier, they're pretty stringent on the non-competes. Look at your and refresh, potentially your leave and accommodation practices, including coordinating with other laws like the paid family medical leave. And make sure that you're building out sort of a compensation hygiene, right?
Ranges, documentation, periodic pay audits, and bring discipline to hiring tech and background checks, right? All of those types of things I think are, are things that you wanna be looking at.
Dan Schwartz: Yeah, well said. And, and I think my message for employers is pretty simple, which is, you know, these are in some ways avoidable mistakes.
Uh, not everything, obviously, that's what we're here for, but I think if you take a few steps now, you can really prevent more expensive problems later. So, Jarad, thanks for joining.
Jarad Lucan: Absolutely. Thanks Dan. It was a great conversation.
Dan Schwartz: It was great and, and really if you have anything up in Massachusetts, don't hesitate to call upon us as a resource.
We're really happy to help share our insights. So, uh, with that, it will bring us to a conclusion of another episode of From Lawyer to Employer, but never fear. We will be back in a few weeks in your inbox with a new episode. If you found this episode helpful, feel free to share it with your HR colleagues or give us a review on Apple Podcast or Spotify.
Would love to hear from you as well. So feel free to email me at DSchwartz@goodwin.com with any comments, feedback, or even a topic for an upcoming podcast. And with that, we will see you around next time. Take care.
Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
Host: This podcast is produced and copyrighted by Shipman and Goodwin, LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, apple Podcast, or wherever you listen.
We hope you'll join us again.