Law and the Workplace
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Mark W. Batten

Partner

Mark Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

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Massachusetts COVID-19 Emergency Paid Sick Leave Program to End March 15, 2022

The Massachusetts Department of Unemployment Insurance has announced that the Massachusetts COVID-19 Emergency Paid Sick Leave (“MEPSL”) will expire on March 15, 2022, and employers have until April 29, 2022 to file their applications for reimbursements. This means employees may continue to take leave under the program through March 15th, but employers then have until … Continue Reading

Massachusetts Creates Exception to At-Will Employment for Employees Exercising the “Right of Rebuttal”

On December 17, 2021, the highest state court in Massachusetts held that an employer may not terminate an employee solely for exercising his right to file a rebuttal to be included in his personnel file. The Supreme Judicial Court found this new common law remedy is necessary to fully protect this legal right and to … Continue Reading

Massachusetts High Court Clarifies Test to Determine Joint Employer Status under State Wage and Overtime Statutes

On December 13, 2021, the highest state court in Massachusetts ruled that the proper test for determining joint employer status under the state’s wage and overtime statutes is the “totality of the circumstances” test formerly used under the Federal Fair Labor Standards Act (“FLSA”), and not the more restrictive test of Mass. Gen. L. c. … Continue Reading

Massachusetts Enacts COVID-19 Emergency Paid Sick Leave

Last week, Massachusetts Governor Charlie Baker signed legislation providing for COVID-19 Emergency Paid Sick Leave for Massachusetts employees. Governor Baker vetoed an earlier version of the bill in April. The revised bill, signed into law on May 28, 2021, takes effect on Monday, June 7, 2021. Employees are eligible for COVID-19 Emergency Paid Sick Leave … Continue Reading

Massachusetts Appeals Court Weighs In On Public Policy Exception To General At-Will Employee Termination Clause

The Massachusetts Appeals Court, in a slip op opinion issued on January 20, 2021, decided that at-will employees can be terminated for submitting rebuttal letters pursuant to G.L.c. 149, §52C (“Section 52C”), and cannot avail themselves of the public policy exception to the general rule that an employee at will may be terminated without cause. … Continue Reading

Paid Family and Medical Leave Benefits Become Available in Massachusetts on January 1st: Is Your Workplace Ready?

For Massachusetts employers, or employers with Massachusetts-based employees, Paid Family and Medical Leave (“PFML”) has been on the horizon for nearly two years. By now, you have notified your workforce about benefits and contributions, displayed a poster informing them of the same, determined the size of your workforce and who is a “covered individual,” begun … Continue Reading

Hearing Scheduled On Proposed Amendments to Massachusetts Paid Family and Medical Leave Law

On June 11, 2020, the Department of Family and Medical Leave (“DFML”) will hold a virtual public hearing on its recent proposed amendments to the final regulations pertaining to the Massachusetts Paid Family and Medical Leave Law (“PFML”) issued in June 2019.  (Instructions for registering for the virtual hearing are available at this link).  A … Continue Reading

Massachusetts Announces Four Phase Plan to Reopen

On Monday May 18, 2020, Governor Baker announced the first phase of his administration’s much-anticipated plan to reopen Massachusetts (the “Plan”), nearly eight weeks after first ordering non-essential businesses to close and advising residents to stay home in light of the COVID-19 pandemic. In describing the phased reopening, the Governor repeatedly emphasized that the coronavirus … Continue Reading

Second Circuit Affirms Expansion of Gender Bias Class Action against Sterling Jewelers

On November 18, 2019, the United States Court of Appeals for the Second Circuit revived a potentially sweeping class action against Sterling Jewelers, Inc. (“Sterling”), holding that potentially tens of thousands of female employees could take part in an arbitration class involving claims of sex discrimination.  The Second Circuit’s holding is the latest in the … Continue Reading

Ninth Circuit Affirms Denial of Class Certification for Wage and Hour Claims on Predominance Grounds

On October 4, 2019, the Ninth Circuit Court of Appeals affirmed rulings by the District Court for the Northern District of California to decertify a rest break subclass and to deny class certification of meal break and off-the-clock subclasses in a long-running case brought by AutoZone employees.  In re: AutoZone, Inc., Wage and Hour Employment … Continue Reading

NLRB Greenlights Aggressive Response to Class Action Filings

On August 14, 2019, the National Labor Relations Board (the “Board”) held that employers may require employees to waive their right to join class and collective actions – even after a claim has been filed in court – without running afoul of federal labor law.  Cordua Restaurants, Inc., Cases 16-CA-160901, 16-CA-161380, 16-CA-170940, and 16-CA-173451. Background … Continue Reading

Final Massachusetts Paid Family and Medical Leave Regulations Published and Other PFML Updates

The Massachusetts Department of Family and Medical Leave (“DFML”) has posted the much-anticipated final regulations regarding Massachusetts’ Paid Family and Medical Leave law (“PFML”). The final regulations come on the heels of Massachusetts lawmakers’ recent extension of key PFML compliance dates. While the final regulations are materially unchanged from the previous draft issued March 29th, … Continue Reading

Massachusetts Paid Family and Medical Leave Deadlines Extended

With the original July 1, 2019 deadline for numerous provisions of the Commonwealth’s Paid Family and Medical Leave (“PFML”) legislation approaching in mere weeks, Massachusetts lawmakers have now issued a much-welcomed enforcement extension. The extensions comes as employers in the Commonwealth worked to comply with the new law.  The amended legislation, announced earlier this week … Continue Reading

Retail Salespeople Paid on Commission Are Entitled to Overtime and Sunday Pay, Massachusetts SJC Says

On May 8, 2019, Massachusetts’ highest court held that retail salespersons who are paid entirely on a commission or draw basis, may nevertheless be entitled to additional overtime or pay for work on Sundays. The Supreme Judicial Court considered these questions in Sullivan v. Sleepy’s LLC, SJC-12542. The narrow questions the Court considered were whether … Continue Reading

Updated: Massachusetts Employers Must Distribute Paid Leave Notice By June 30, 2019

[UPDATE: On June 11, 2019, state officials, including Governor Charlie Baker, issued a joint statement noting that the state has agreed to a three month postponement before companies will be assessed fees pursuant to the PFML, meaning the taxes will begin in October, 2019 rather than on July 1, 2019 as previously anticipated. We will continue … Continue Reading

Massachusetts SJC Weighs in on Wage Act Class Actions and Offers of Judgment

On Friday April 12, 2019, the Massachusetts Supreme Judicial Court confirmed that plaintiffs seeking to bring class actions asserting Massachusetts Wage Act (“Wage Act”) violations must meet the certification standards set by Massachusetts Rule of Civil Procedure 23 (“Rule 23”), and cannot avail themselves of a lower bar to class certification. In Gammella v. P.F. Chang’s China Bistro, … Continue Reading

New Updates to Massachusetts Paid Family and Medical Leave

[UPDATE: On June 11, 2019, state officials issued a joint statement noting that the state has agreed to a three month postponement before companies will be assessed fees pursuant to the PFML, meaning the taxes will begin in October, 2019 rather than on July 1, 2019 as previously anticipated. In May, 2019, the Department of … Continue Reading

United States Supreme Court Says that Equitable Tolling Cannot Extend Deadline to Appeal Class Certification Decisions Under Rule 23(f)

In a unanimous decision authored by Justice Sotomayor on February 26, 2019, the Supreme Court held that the 14-day deadline to seek permission to appeal a decision granting or denying class certification under Federal Rule of Civil Procedure 23(f) cannot be extended through the doctrine of equitable tolling. Nutraceutical Corp. v. Lambert, No. 17-1094, 586 … Continue Reading

Massachusetts Supreme Judicial Court OK’s Attorneys’ Fees for Wage Act Settlements

As has been long anticipated, the Massachusetts Supreme Judicial Court recently gave a green light to plaintiffs’ attorneys seeking a fee award under the Commonwealth’s Payment of Wages Act, even where an action ends in settlement.  The Wage Act (Mass. General Laws ch. 149 §§ 148, 150) awards costs and fees when an employee “prevails” … Continue Reading

Massachusetts SJC Holds Employers’ Denials of Lateral Transfers May Be Adverse Actions in Discrimination Cases

Massachusetts employers’ decision-making processes with regards to lateral, internal employee transfers are now subject to possible state law discrimination claims.  On January 29, 2019, the SJC issued its decision in Yee v. Massachusetts State Police, SCJ-12485, holding that when two jobs at the same level for the same employer offer “material differences” in compensation opportunity, … Continue Reading

Massachusetts Releases Draft Regulations For Paid Family and Medical Leave Law

On January 23, 2019, Massachusetts released draft regulations on the Paid Family and Medical Leave (“PFML”) Law, signed into law last summer (as previously discussed here) and set to begin taking effect this upcoming July.  The Department of Family and Medical Leave released these draft regulations for public comment only, with the deadline for publication … Continue Reading

Ninth Circuit Holds that Last-Known Addresses of Putative Class Members Are Insufficient To Satisfy CAFA Exceptions

The Class Action Fairness Act (“CAFA”) permits removal of many class actions from state to federal court, but includes a “local controversy” exception that forbids removal where two-thirds or more of the proposed class resides in the state where the action is brought. In disputes over efforts to use CAFA to remove class actions, the … Continue Reading

Massachusetts Passes Non-Compete Reform Law

On August 10, 2018, Massachusetts Governor Charlie Baker signed into law a bill making significant reforms to Massachusetts’ law regarding non-compete agreements, as well as adopting the Uniform Trade Secrets Act (“UTSA”) (joining 48 other states as well as DC in adopting the UTSA at least in part, and leaving New York as the lone … Continue Reading

Massachusetts Governor Signs Minimum Wage, Family and Medical Leave Bill

On June 28, 2018, Governor Charlie Baker signed “An Act Relative to Minimum Wage, Paid Family Medical Leave, and the Sales Tax Holiday” (HB 4640) into law. Last week, we covered three major changes the Act makes to Massachusetts law that employers should be aware of (available here). In short, the Act incrementally increases minimum … Continue Reading
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