October 2016 Meeting: Background Checks: the Who, What, When, Where, How & Why

What we covered:

  1. Why should you background check?
  2. Who should you background check?
  3. When should you do it in the hiring process?
  4. What should you check for?
  5. How should you go about it?
  6. What if you find negative information and don’t want to hire?

Dave Wilson, a partner at Hirsch Roberts Weinstein LLP, who advises businesses and non-profits on employment matters, gave a presentation on how to navigate the Commonwealth’s CORI and non-discrimination laws in the hiring process.  Kimberly Napoli from the same firm assisted with the presentation. He covered the following areas: 1) why should you background check?  2) Who should you background check?  3) When should you do it in the hiring process? 4) What should you check for? 5) How should you go about it? And 6) What if you find negative information and don’t want to hire?
According David and Kimberly, the new Massachusetts CORI Law went into effect in 2009, which triggered taking any kind of criminal record questions off the job application.  The new sequence of hiring is:  applicant fills out the initial written application form with no questions about criminal background, applicant takes skills assessment test (if applicable), and then applicant interviews for the job.  Doing a telephone screening first can save time. After an interview, you can have the applicant fill out a Supplemental Application Form, which can include questions about criminal background.   The next step is to make the job offer, conditional on a satisfactory CORI (Criminal Offender Record Information) check.  The employer then gets the applicant’s written permission for the CORI check and other background screening checks (such as a credit check).

ICORI is the on-line method for doing CORI checks.  If you use this site, you need to put in the exact name of the person you are checking.  In general, you can check the background of a prospective employee, but you cannot ask about salary history. You can ask what his/her preferred salary range is.  If you get a CORI back with an issue on it, the best practice is to give the applicant “Due Process” – ask them to explain the issue.  It could be something that happened a long time ago when they were a teenager, etc. You must provide a copy of the CORI to the applicant. If you are considering not proceeding with the employment based on negative information in the CORI, then your company should send out a “pre-adverse action disclosure letter” to the applicant.  A company is not allowed to make a negative hiring decision based on a CORI without discussing it with the applicant first.  So the next step is to have further discussion with the candidate, then make a decision, inform the candidate, send out a “post-adverse action disclosure” letter if you use an outside background check service, and then hire or no hire.  One helpful hint would be to have someone else besides the person doing the hiring, do a Google and Facebook search on the candidate for all those who will be called in for final interviews.

David and Kimberly pointed out some practices that are important.  It is very important to have applicant fill out a written formal application form.  The applicant by signing the document is stating that everything in the application is true, and if it turns out not to be true, then that is grounds for firing the person later on if necessary.  Also, even though it is more costly, it is a better practice to use a 3rd party vendors to do the background checks.  It is very important to do background checks, especially for some positions. It is better to screen unsuitable applicant out early in the process. It is also very important that an employer be fair and reasonable when dealing with applicants.   Always give applicants and employees due process. For references, you should ask the applicant for the names of their past supervisors and ask his/her permission to talk to them.  Better yet, you should ask the applicant to actually set-up the call with their former supervisors for you.  Also, when making the call, you should state your questions upfront.  Good reference questions are:  What did the person do at your company? What did the person do well?  What were some areas that needed improvements, and rate the persons as an effective employee form one to ten? If you have questions about using CORI, you can go to the DCJIS website (http://www.mass.gov/eopss/agencies/dcjis/ to access publications with step by step instructions.

September 2016 Meeting: Exempt and Non-exempt Employees: Finding the Right Staffing and Compensation Strategy for your Organization

Date: September 29, 2016

December 1, 2016, the new DOL regulations governing non-exempt employee compensation go into effect.  We first reviewed these changes last May.  We decided to dive in deeper and review how our employees should be classified as well as how well we apply the exempt duties test in each of our organizations.

How does one analyze and develop a solid staffing and compensation strategy around exempt and non-exempt employees?

The presentation began with a quick overview of FLSA overtime requirements, focusing on the 2004 regulations & the duties tests for the categories of white-collar employees exempt from overtime, namely: executive, administrative, professional, outside sales, and computer professionals. To qualify under the “professional” category, a job needs to require an advanced degree beyond a bachelor’s (such as an MD, JD, etc.), reflected in its scope and level of responsibilities. There was discussion about when a master’s degree would qualify. We were cautioned that the “administrative” exemption has been prone to misuse. To qualify for this exemption, an employee needs to exercise independent judgment and discretion with respect to “matters of significance,” such as strategy, establishing budgets, hiring & firing…. The category does not, for example, usually extend to administrative assistants. It might, however, be appropriate for a CFO or Finance Director, even one without an M.B.A.  The duties and extent of independent authority and discretion are determinative.

This was followed by a summary of the Department of Labor’s new regulations for overtime eligibility, which go into effect December 1, 2016. The most immediately obvious of the changes are higher salary thresholds for overtime exemption and the “highly compensated employee” test. To be considered for exempt status, an employee will need to draw a salary of at least $913 per week ($47,476 annually), a threshold more than double the current cutoff. In addition, the employee would need to pass the duties test–as described above–which remains unchanged. The annual salary threshold for highly compensated employees, who are automatically exempt from overtime rules, will rise to $134,004. The new rules also set forth a mechanism for the thresholds to be adjusted every three years, and include provisions for counting certain bonuses and incentive pay as part of qualifying salary.

There are two important features of the new $913 threshold. First, an employee must earn at least $913 every week, not merely on average over the course of the year. Secondly, the floor applies to the employee’s actual salary, not prorated for hours worked. Whether an employee works 20 hours a week or 40, she must earn $913/week or more to meet the new salary test.

Up to 10% of the salary counting toward the minimum can take the form of nondiscretionary bonuses, incentive pay, and commissions. To qualify, any such compensation must be paid out at least quarterly. An annual discretionary bonus, for example, would fail to qualify on two counts.

There was some discussion about the nonprofit exemption for organizations and individuals. It does not cover the vast majority of cases, because to apply, both the Massachusetts organizational test and federal enterprise or individual tests must be met. The individual test is quite restrictive, due to a broad interpretation of “interstate commerce.”

To comply with the new regulations, an employer might consider a number of options regarding employees who currently earn less than $913/week, including:
Raise salaries to meet or exceed the threshold
Is someone earning close to that amount already?
Are they earning bonuses or commissions that get them close?
Would they otherwise be logging a large amount of overtime hours?
Reclassify them as non-exempt, and pay time-and-a-half for overtime
Are they earning well below the threshold?
Would raising their salaries result in problematic pay compression?
Are they unlikely to log overtime?

Organizations are adapting by reclassifying employees as non-exempt, but adjusting wages so that employee’s total pay, including overtime, would stay about the same.

It was noted that non-exempt salaried employees may still be paid on a salaried rather than hourly wage basis, as long as they are paid overtime wages for any hours over 40 per week and agree to the arrangement. So an employee who works variable hours can be a salaried non-exempt employee so long as the overall salary satisfies minimum wage for all hours worked and hourly overtime would be applied when the hours worked exceeded 40. However in that case, it would be strongly advised to obtain a written agreement from the employee (such as acceptance of an offer letter) specifying that they are to be paid on a salaried basis.

Above all, these new rules are an excellent opportunity to clean house: do a thorough audit of actual current job duties and job descriptions; track hours worked; review policies on work hours, scheduling and telecommuting; etc. If you need to change your compensation structure or policies, the DOL rules will serve as a concrete starting point for communicating changes to employees.


Presenter: Elizabeth Levine, Esq. has significant non-profit experience and will lead a discussion of these and related issues.  Counsel in Goulston & Storr’s litigation practice, her practice focuses on proactively counseling employers with respect to personnel policies and other employment law related matters as well as defending organizations in litigation.

May 2016 Meeting-Are You Prepared to Comply with New Proposed FLSA Overtime Regulations?

In 2015, the Department of Labor announced a proposed change to overtime regulations that will limit the number of white collar workers who will qualify for exemption from the overtime requirement.  Although the implementation of the regulations has been postponed until 2016 or 2017, businesses should begin to consider how the regulations will impact their pay practices.  We will discuss basic concepts of overtime and exemptions, with a focus on the anticipated changes.


Presenter: ANDREA E. ZOIA is an associate with the firm Morgan, Brown & Joy LLP.  Ms. Zoia represents employers in a variety of labor and employment matters.  Her litigation experience includes defending employers in a wide range of workplace claims including employment discrimination, retaliation, wrongful discharge, breach of contract, and wage and hour class actions.  Ms. Zoia is a graduate of Boston College and Northeastern University School of Law.  She is a member of the Labor and Employment Section of the Boston Bar Association.

Below, please find the link to Morgan Brown and Joy’s website with the seminar materials.

Link to the Department of Labor’s guidance on the new regulations.  Note that this has its limitations and only addresses application of federal law (and not the Massachusetts overtime requirements):



Article about the topic:

The Federal Fair Labor Standards Act (FLSA) requires that Non-Exempt employees be paid at an overtime rate for worked performed in excess of 40 hours per week.  States also have their own standards, but they must comply at a minimum with the Federal Standards.  Massachusetts standards use the FLSA provisions. The FSLA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, and professional employees (white collar employees). To qualify for the exemption, a white collar employee generally must:
1. Be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the salary basis test);
2. Be paid a minimum specified salary (the salary level test); and
3. Primarily perform executive, administrative, or professional duties, as defined in the federal regulations (the duties test).
Highly-compensated employees (HCEs) who are paid total annual compensation of a minimum specified amount and meet certain other conditions are also deemed exempt from the FLSA minimum wage and overtime pay requirements.

Job titles never determine exempt status. Receiving a particular salary, alone, does not indicate that an employee is exempt. Rather, in order for a white collar exemption to apply, an employee’s specific job duties and earnings must meet all of the applicable requirements provided in the regulations. Keep in mind that when both the FLSA and a state law apply, the employee is entitled to the most favorable provisions of each law.

In 2015, the Department of Labor announced a proposed change to overtime regulations that will limit the number of white collar workers who will qualify for exemption from the overtime requirement.  Although the implementation of the regulations has been postponed until 2016 or 2017, businesses should begin to consider how the regulations will impact their pay practices.  Andrea discussed basic concepts of overtime and exemptions, with a focus on the anticipated changes.

Andrea recommended that employers start off by assuming that all employees are non-exempt and if you have a policy that states that employees are not to work over 40 hours per week, then make it clear, and stick to it.  If nonexempt employees do work over 40, even though you have a policy, you have to pay them OT.   Under the new regulations which take effect on December 1, 2016, there are still “White Collar” exemptions from the OT provisions of the FLSA.   The three categories of “white collar” exemptions are: executive employees, administrative employees, and professional employees.  Executive employees must be paid on a salary basis and their primary duties must be managing the company or a segment of it, directing the work of at least 2 other full time employees and must have authority over those employees.    Administrative employees also must be paid on a salary or fee basis and their primary duty must be the performance of office or non-manual work related to management and must be able to exercise discretion and independent judgment in regard to matters of significance.  Professional employees must be paid on a salary or fee basis and must perform work that requires an advanced knowledge or degree in science or leaning or requires specialized skills in a recognized field of artistic or creative work.   The “duties test’ for determining if a certain employee is exempt or non-exempt will not change under the new regulations.  The change is, under the old rules, to be exempt, you had to meet the duties test, be paid a guaranteed amount (salary or fee) and make at least $455 per week or more to be EXEMPT.  Under the new regulations, you have to meets the duties test, make a guaranteed salary or fee, If you do not meet this salary level, then you are non-exempt and are subject to the Overtime provisions of the FLSA.  Adjustment to the salary limited will occur again on January 1, 2020, and then automatically every 3 years.

Andrea mentioned that determination of exemption under the “duties test” is where most of the litigation takes place.   She also highly recommended that we have all employees fill out timesheet, so there is documentation of hours worked in case litigation does occur.   Penalties for violating the FMLA are severe and the statute of limitations for violations is 3 years.

March 2016: Retirement Plan options for a Non Profit: What you should consider and the questions that you should ask!

Ann Corey from Angell Pension Group presented about:

– 401(k) versus 403(b) – what are the differences?

– ERISA versus NON ERISA 403(b) Plan…what does that mean?

– Changes to the 403(b) landscape – now a world of compliance and fiduciary responsibilities, and answer your questions about handling your organization’s retirement plans.

Materials from the Presentation:

403(b) Presentation 03302016 403bv401k_2016 Sample Fiduciary Calendar 2016

403b versus 401k

Sample Fiduciary Calendar 2016

February 2016 Meeting-FSA/HRA/HSA; Strategic Use of Medical Tax Favored Products

Today, most employers have adopted a consumerism approach to their employer sponsored health insurance by positioning the plan alongside a tax-advantaged medical savings account. The challenge employers face however, is determining which type medical savings account is best suited for their employee population and how to engage and educate employees on maximizing the benefits of these products.

We will evaluate each product’s advantages and discuss strategies to enhance employee engagement and reduce expenses for both employees and employers alike.

Presenter: Marijane Norris Geary, President, Yozell Associates, Boston MA.

Yozell Associates, a full service employee health and welfare benefits firm, has been providing strategic advice and services to its respective clients for over sixty years. Marijane works with clients to implement strategies that address healthcare cost drivers, total workforce health, absence management, utilization  of specialty pharmaceuticals and changes in the provider delivery system.

Click here for Presentation