2018 Ballot Question Proposes up to 26 Weeks of Paid Family and Medical Leave to Massachusetts Employees

If a coalition group called Raise Up Massachusetts gets its way, the Commonwealth will soon have a comprehensive new law that provides paid leave to employees for a variety of personal reasons. At the recent deadline for 2018 ballot questions, Raise Up submitted a voter-supported initiative it calls a Family and Medical Leave law. If approved at the polls next November, the new law will provide up to 26 weeks of paid leave annually to Massachusetts employees.

The ballot question divides paid leave into two general categories – “family” and “medical.” Under the former, employees will be entitled to up to 16 weeks of paid family leave each year to care for ill family members, bond with their children, or address military-related emergencies. They’ll be allowed up to 26 weeks to care for a covered service member, as that term is defined by the proposed law. For an employee’s own health condition, he/she will be allowed up to 26 weeks under the medical leave portion of the proposed new law. An employee who uses either family or medical leave will generally need to be restored to the same or a similar job without losing pay or other benefits. Pay will be capped at $1,000 per week.

Wage payments will not come directly from employers under the proposed Family and Medical Leave Law. Instead, a new agency called the Department of Family and Medical Leave will be created to collect employer contributions equal to .63% of employee and independent contractor payrolls. Half of the amount paid by employers can be recouped from workers. The Department of Family and Medical Leave will create regulations to implement and administer the new law. It will make eligibility decisions, pay benefits, and adjust contribution rates periodically as needed.

If voted into law next November, the Family and Medical Leave Law will take effect 18 months later. Contributions to the trust fund, however, will begin on July 1, 2019, roughly a year before the law takes hold. As with other employment laws, the proposed statute bars retaliation against employees who take advantage of its benefits. Any negative change to the terms and conditions of employment within six months of using paid leave will be presumptively retaliatory. Punishment can include up to three times the amount of any lost wages, damages as may be incurred, and reimbursement of legal fees.

With the New Equal Pay Act Set to Take Effect on July 1, 2018, it’s Time for Employers to Evaluate their Wage Practices

The effective date of the new Massachusetts Equal Pay Act is fast approaching, and employers who have not yet begun to evaluate wage disparities between men and women need to start the process. Beginning July 1, 2018, the revised law will require that employees be paid equally for work involving similar skill, effort and responsibility. Analyzing existing wage disparities and making progress to address them will help shield employers from double the amounts of wage disparities and other penalties under the Equal Pay Act.

The new Equal Pay Act revises an existing law that, due to court interpretation, has been effectively useless to address wage disparities. It mandates that all workers be paid the same for “comparable” work regardless of gender and bars companies from ordering their employees not to talk about their pay. Courts evaluating Equal Pay Act claims will ignore job titles and focus on whether jobs require “substantially similar skill, effort and responsibility” and are “performed under similar working conditions.” Penalties under the Act are substantial and include the payment of employee legal fees, but can be abated or avoided completely by self-evaluation and concrete action in advance of July 1, 2018. Implementation of the law was delayed two years from its passage in July 2016 to provide employers time to address pay disparities.

Employers who haven’t yet done so should proceed quickly to determine whether wage inequity exists. Doing this with the assistance of counsel, either in-house or from outside the company, should permit the initial findings of an Equal Pay Act audit to be kept confidential. This makes sense given the existence of a federal law on equal pay that does not shield audits in the same way the Massachusetts Equal Pay Act does. Once an initial audit is completed, employers should decide with the advice of counsel how to address the results and whether more audit work is needed. Under the Massachusetts Equal Pay Act, progress on abating unequal pay is required before the audit will be a useful defense to suit.

Sexual Harassment in the Workplace: Recent Headlines about Sexual Harassment at Work is a Call to Action for Massachusetts Employers

image credit: pixabay

image credit: pixabay

The recent accusations of sexual harassment by powerful men against the women – and sometimes men – who work around them is suddenly shining a bright light on the issue. Shocking as some of the claims may be, the fact that sexual harassment in the workplace is a major problem in Massachusetts is no surprise. For employers, the central message from media reports about Harvey Weinstein and others is patent. Pay attention to what’s going in your board rooms, mail rooms, and everywhere in between lest you face the embarrassment and expense that sexual harassment claims deliver.

Indeed, there is no shortage of sexual harassment claims in Massachusetts. The Commonwealth has long made employers responsible for rooting out sexual behaviors at work and addressing them before they become sexual harassment. All employers of six or more must have a sexual harassment in the workplace policy that is distributed annually to their employees. The model policy includes a discussion of sexual behaviors, encouragement of internal complaints, a promise to investigate, and contact information for filing state and federal complaints. Massachusetts employers are automatically on the financial hook for sexual harassment perpetrated by managers and for behaviors by others if they don’t quickly and reasonably address them. Needless to say, the cost of even a single sexual harassment claim can be extreme. In addition to paying their own lawyers, employers face the prospect of large damages awards and orders they pay the legal fees of the employees who sue them for sexual harassment

There are several steps employers should take to avoid sexual harassment in the workplace issues. The first step is to set a workplace tone that does not tolerate sexual or other inappropriate behaviors. Employers can do this through strong policies, delivered through comprehensive employment manuals that managers can get behind in visible ways. Policies should be reviewed and updated on a regular basis to assure compliance with new laws. Managers, at least, should be trained about sexual harassment in the workplace and instructed that setting a positive example and addressing inappropriate behaviors when they occur is a critical part of their jobs. Staff should be encouraged to bring issues of concern to management’s attention, and those concerns must be addressed promptly.

Massachusetts Law Continues to Protect against Gender Identity Discrimination Despite Federal Pronouncment

When Attorney General Jeff Sessions recently announced that his Justice Department rejects the idea that transgender people are protected under Title VII, the federal workplace discrimination statute, it received quick condemnation from a variety of sources. Significant as the proclamation may be at the federal level, however, Massachusetts residents need not be concerned, or pleased, as the case may be. Under Mass. Gen. L. ch. 151B, transgender and gay people remain well protected against employment discrimination based on their gender identities. They can continue to file complaints based on it at both the MCAD and in state courts.

The federal action comes at a time when Mr. Sessions’ justice department has been hostile to Title VII protections of the broader LGBT community. His Justice Department has argued that civil rights laws do not protect against sexual orientation discrimination. Under Title VII, which was passed by Congress in 1964 as part of the Civil Right Act, discrimination based on “sex, ” among other things, is illegal. The Obama administration and others, including the Equal Employment Opportunity Commission (EEOC), have interpreted “sex” as covering individuals based on gender identity and sexual orientation.

Under the Massachusetts anti-discrimination statute, it’s unlawful for an employer, “because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, genetic information, ancestry or status as a veteran of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.”

Pregnant Workers will Enjoy Broad New Job Protections under Recently Signed Massachusetts Law

Massachusetts recently took another step to protect members of its workforce. Late in July, Gov. Charlie Baker signed the Pregnant Workers Fairness Act, which provides broad new rules for pregnant women. The law will take effect on April 1, 2018. Under it, employers must grant reasonable accommodations for pregnancies or any condition related to then, including “lactation, or the need to express breast milk” for children after they are born. Employers will be prohibited from the following:

  1. Taking adverse action against an employee who uses or requests a pregnancy accommodation;
  2. Refusing to reinstate an employee to her job after a reasonable accommodation period ends;
  3. Denying a pregnant employee workplace opportunities because of her pregnancy-related accommodation needs;
  4. Requiring an employee to accept pregnancy accommodations that are “unnecessary to enable the employee to perform the essential functions” of her job; or
  5. Knowingly refusing to hire a pregnant woman due to her pregnancy or a related condition, including her lactation needs.

Just as in other handicap accommodation situations, the Pregnant Workers Fairness Act exempts employers from compliance when doing so will cause an undue hardship. It also requires employers to engage in an interactive process to determine whether and what sorts of accommodations may work for pregnant employees who require them. Among the accommodations the Act suggests are required in all but unusual circumstances are more frequent restroom, food and water breaks; seating adjustments; and limits on lifting 20 pounds or more.

Though the Pregnant Workers Fairness Act does not take effect until April 1, 2018, employers must notify their employees about it by January 1, 2018. A new policy should be created and placed in employee handbooks and distributed to existing employees and all new hires.

Employees may be Free to Speak their Minds, but Employers are Free to React

Free speech is not always free. That seemingly obvious point was apparently lost on Google employee James Damore, a man making headlines recently after he was fired for writing a memo that opined women are unsuited to work as engineers. Google’s efforts to promote them, he wrote, were unfair and divisive.

So, too, was Mr. Damore’s opinion. Not surprisingly, it rankled many inside Google, which reacted by terminating Mr. Damore’s employment on August 7. Mr. Damore, supported by the likes of Juilian Assange and other political conservatives, responded by threatening legal action. “As far as I know,” he reportedly wrote, “I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.”

There’s little question that Mr. Damore is correct. As far as he knows, he may say whatever he likes to whomever he chooses. What he doesn’t seem to know, however, is that those around him have rights, too. People who hear his views have a right to be offended. They may disassociate themselves from him if they choose. Google and other private employers have the right to decide who works for them. They are not restricted by free speech guarantees in the First Amendment to the U.S. Constitution. Like Mr. Damore, private employers have their own form of free speech rights, and it includes the right to say “you’re fired” to workers who, in their judgment, are disruptive, potentially damaging to their business, or in any other way unsuitable to remain employees.

It’s unclear whether Mr. Damore will actually file his lawsuit or how, if he does, what his legal theory might be. But he fears not, no doubt, as he garners support and job offers from those who agree with his missives about women and work. He’s now a hero of sorts at the likes of Breitbart News and reportedly has a job offer at Wikileaks. Good for Mr. Damore, if this is what he intended. If not, he has learned what he should have known all along. He is free to speak, and the world around him can react to what he says.

Noncompetition Agreement Legislation Appears No Closer to Passage in Massachusetts

The effort to regulate the use of noncompetition agreements continues to languish in a legislative committee, where most of several competing proposals were referred early in 2017. Alongside them – or, as it were, within the same proposed bills – sits the uniform trade secrets act, a law aimed at protecting the advantage businesses enjoy from confidential trade information.

No fewer than six bills are now being considered by the Massachusetts Legislature’s joint committee on labor and workforce development. One proposed law would void restrictions on post-employment competition contained in written employment agreements while permitting limitations on solicitation of customers or employees in those same contracts to be enforced. Another would permit noncompetition agreements under specifically prescribed conditions, including 10-day advance notice for employees, opportunities to consult with counsel, and payment of wages during any restricted period of time. Some versions of the proposed law would ban noncompetes for lower level workers and limit them to time periods of between three and 12 months. Two bills require renewal of noncompetition agreements at regular intervals, and some permit enforcement of them only in the county where an employee resides.

It’s unclear whether or when the state Senate and House of Representatives will agree on and pass a version of noncompetition legislation or, if they ever do, whether the governor will sign it into law. Given the long history of failed efforts to ban these contracts, it seems most likely that, if any legislation is ever to become law, it will impose conditions on noncompetition agreements while permitting businesses to continue to enforce them where they are essential. Such enforcement might very well require that employers pay at least a portion of the wages their former workers will lose as a consequence of a noncompetition restriction.

Employers Get Another Reason to Carefully Review and Comply with Wage Laws

It’s no surprise that the reach of Massachusetts’ wage laws is long, and most employers know they need to carefully abide them if they want to avoid potentially dire effects. Still, courts sometimes seem to extend the law’s reach in surprising ways. When that happens, employers to which such rulings apply might first shudder a bit, then step back and review policies to be sure they are doing things properly.

A recent U.S. District Court decision may have such an effect. In Chebotnikov v. LimoLink, the court ruled that a trial was necessary to determine whether limousine drivers are employees or contractors. It went on to also conclude that gratuities charged to customers must be remitted to the drivers under the Massachusetts tips statute. That law requires that service charges or tips from customers “shall be remitted only to the wait staff employees, service employees or service bartenders” who provide the customer service at issue.

What’s interesting here is the award of tips to individuals who may or may not be employees despite the fact that the statute involved appears to apply only to that group. The court seemed moved in large part by the clear intention of the law: to ensure that service workers get the tips that customers intend for them and not their employers to receive. Employers who collect tips or charge costs to customers that might be interpreted as gratuities need not shudder at this ruling, perhaps, but certainly should review their practices to ensure they don’t get caught in the same situation as LimoLink apparently has.

Reasonable Accommodation Laws Apply to Use of Medical Marijuana in Massachusetts

If there was any doubt that employers need to be careful about disciplining employees who use medical marijuana, it was ended today by the Supreme Judicial Court (SJC). It held that employees who are prescribed medical marijuana to treat their health conditions are protected under Massachusetts handicap law. Both employers and managers involved in decisions to punish workers for off-site medical marijuana use can be sued for damages caused by their conduct, the SJC held.

The case’s significance is patent. Under both Massachusetts and federal law, handicapped employees are protected against discrimination. If they can perform their jobs with or without reasonable accommodation, employers cannot take adverse action against them due to their disabilities. Massachusetts places a heavy burden on employers to consider accommodations their employees may need to continue working and to implement them if reasonable. Employers must both engage in an interactive discussion to evaluate potential accommodations and implement any that may exist unless they prove that doing so would pose an undue hardship. Proving undue hardship is quite difficult.

But state and federal laws diverge when it comes to marijuana use. In Massachusetts, such use is legal when medically prescribed. The drug can be sold in the Commonwealth, was long ago decriminalized, and is now wholly legal for personal use. At the federal level, none of this is true. Despite broad agreement among states that marijuana has valid medical uses that should be permitted under proper supervision, U.S. law continues to provide otherwise. It was on this basis that the employer in Barbuto v. Advantage Sales and Marketing, LLC believed it could summarily terminate its employee for a positive marijuana test. [Read more…]

Supreme Judicial Court Rules that Employees get Interest on Unpaid Wages but not Statutory Penalties

The Supreme Judicial Court this week issued its latest interpretation of the Massachusetts Wage Act, Mass. Gen. L. ch. 150, §§148-150. It ruled that prejudgment interest on unpaid wages and other benefits awarded to employees should be added to judgments at the statutory rate of 12 percent. Importantly, however, the SJC decided that no interest can be awarded on the mandatory triple damage penalties that apply under the Wage Act.

The case is significant both as to its substance and the SJC’s break with a ruling by the U.S. Supreme Court regarding prejudgment interest on wages. On substance, the SJC’s ruling will likely result in substantially reduced judgments against employers in some cases. As to federal precedent, the Supreme Court decided in 1945 that employees cannot receive interest on wage judgments under the Fair Labor Standards Act (a federal law dealing with wage payments to employees) because its liquidated damages provision superseded it. In rejecting this logic, the SJC pointed to laws in Massachusetts that require interest at 12 percent annually on damages awards. It concluded that harmonizing the Wage Act with these laws requires a reasonable balance such that interest must be awarded on actual damages awarded but not on triple damage sums. [Read more…]